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What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the defendant had inadequate counsel?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
Christine MAIORANA, as the Adminis-tratrix of the Estate of Anthony C. Maiorana, Plaintiff-Appellant, v. Robert D. MacDONALD and Robert Scire, Defendants-Appellees. Christine MAIORANA, as the Adminis-tratrix of the Estate of Anthony C. Maiorana, Plaintiff-Appellant, v. James JAJUGA, Robert J. Long, and Ronald Guilmette, Defendants-Appellees.
Nos. 78-1424, 78-1425.
United States Court of Appeals, First Circuit.
Argued Jan. 4, 1979.
Decided April 18, 1979.
Jeffrey M. Kaye and Raymond C. Malloy, with whom Struffolino, Malloy & Kaye, Me-thuen, Mass., were on brief, for plaintiff-appellant.
Joseph W. Monahan, III, Boston, Mass., for defendant-appellee Robert Scire.
Edward J. Duggan, Sp. Asst. Atty. Gen., with whom Chester R. McLaughlin, Sp. Asst. Atty. Gen., was on brief, for defendants-appellees James Jajuga, Robert J. Long and Ronald Guilmette.
Carolyn Grace, Asst. U.S. Atty., Boston, Mass., with whom Edward F. Harrington, U.S. Atty., Boston, Mass., was on brief, for defendant-appellee Robert D. MacDonald.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
BOWNES, Circuit Judge.
The plaintiff is the mother of Anthony C. Maiorana who was shot and killed in the course of an arrest on February 15,1974, by local, state and federal law enforcement officers. As administratrix of her son’s estate, she brought two actions for damages under 42 U.S.C. § 1983 and the fourth amendment to the United States Constitution. The first complaint was filed against Massachusetts State Police Officers James Jajuga, Robert J. Long, and Ronald Guil-mette; the second, against Robert D. MacDonald, a special agent of the Federal Bureau of Alcohol, Tobacco, and Firearms, and Robert Scire, a Woburn police officer. The district court granted summary judgment for all defendants, which ruling is challenged on appeal.
The plaintiff’s claim is a serious one: that the defendants acted with gross negligence, bad faith, and excessive force in killing her son while attempting to arrest him. There is no question that she has stated a cause of action, even though it is unclear whether she also contends that there was no probable cause to arrest her son. Williams v. Liberty, 461 F.2d 325, 327 (7th Cir. 1972); Jenkins v. Averett, 424 F.2d 1228, 1232 (4th Cir. 1970); Delaney v. Dias, 415 F.Supp. 1351, 1353 (D.Mass.1976).
In answering the complaints, all defendants claimed qualified immunity for their actions. The defense of qualified immunity, which is available to local, state, and federal law enforcement officers, protects the defendants from liability for damages if they acted with a good faith belief based upon reasonable grounds that the measures they took were necessary. Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).
All of the defendants, either expressly or impliedly, also contended that their actions were fully justified. They further asserted that the plaintiff’s actions for violation of her son’s civil rights did not survive his death.
In moving for summary judgment or dismissal, the defendants each filed affidavits of their own, along with affidavits from Agent Henry Foderaro of the Bureau of Alcohol, Tobacco, and Firearms, the doctor who performed the autopsy, and a state police ballistician. The plaintiff filed three counteraffidavits. Except for memoranda of law, no further materials were filed.
The defendants’ affidavits, which are, in the main, uncontradicted, establish the following facts. Jajuga first met Maiorana in January, 1973, while investigating narcotics violations in the Lowell area. From Maior-ana, he received information that led to some arrests and prosecutions. On February 12, 1973, he, along with two Lawrence police officers, arrested Maiorana at his home for an armed robbery while masked. According to Jajuga’s affidavit, during the arrest Maiorana reached under a pillow for a revolver, but was prevented from getting it by one of the officers grabbing his hand. This was contradicted by plaintiff, who, in one of her affidavits, stated that at the time of the arrest she was standing in the doorway and that Jajuga asked her son where the gun was, that her son told him the gun was under the pillow and that Jajuga then reached over and took it.
Jajuga last received information from Maiorana in November, 1973, had no subsequent contact with him, and did not participate in the events leading to the attempt to arrest him on February 15, 1974.
In January and February, 1974, MacDonald was investigating illegal firearms traffic in the Woburn area. Agent Foderaro informed MacDonald that, while under cover, he had purchased a gun from Maiorana. On advice of Foderaro, MacDonald contacted Long, who was also conducting a firearms trafficking investigation with Guil-mette and was planning to obtain a search warrant for the apartment where Maiorana obtained the gun sold to Foderaro. Long and Guilmette had the cooperation of William Callagy and Stephen Fleischman. Long’s affidavit states that Callagy told him that many guns were being sold illegally in Lawrence, that his girl friend had received numerous phone calls threatening her life and the lives of her two children, that Maiorana, who carried a.357 Magnum, was the main source of the guns in Lawrence and that he obtained them from a person named Dave who lived in Woburn and drove a taxi. Long had discussed this information with Scire, who was able to fully identify the Woburn source as one David Wells. Neither Long, Guilmette nor Scire knew Maiorana personally.
A search warrant was obtained for Wells’ apartment on February 12, 1974. It was not executed, as anticipated, on February 13 because Maiorana failed to contact the undercover agent who had arranged to buy a gun there.
On February 14, 1974, Guilmette and Long learned that Maiorana was going to sell Callagy some guns at the apartment, and the officers planned to execute the warrant upon a signal from Callagy who was fitted with an electronic listening and signalling device. The signal was not given, however, because there were no guns in the apartment when Callagy, Fleischman, and Maiorana went there.
Callagy informed Guilmette about 10:30 in the evening of February 14 that Maiora-na had told him and Fleischman that he had robbed Friendly s ice cream store in Wo-burn and a taxi stand. The officers knew the store had been robbed at 7:30 P.M. by a man meeting Maiorana’s description and carrying a large hand gun. Long was informed on the morning of February 15 by Guilmette that Maiorana had phoned Calla-gy that morning and told him that the guns could be bought that day and that he would meet Callagy at Wells’ apartment about noon. Long met with the other officers involved and Callagy and Fleischman in the parking lot of the Woburn Police Department about noontime. Callagy and Fleisch-man were introduced to the others and the plan for the execution of the warrant and the arrest was outlined. Both Callagy and Fleischman told the officers that Maiorana had a.357 Magnum and had told them that the reason he carried it was to give him the edge on any cop (since the police only had.38 revolvers) and had stated that he was not going to be taken alive. They also said that Maiorana had shown them a secret place in his jacket with a special hole in it from which he could fire the Magnum without opening the jacket. They told the officers that they thought Maiorana was crazy and they were afraid of being caught in a cross-fire in the event of a shoot-out. MacDonald stated in his affidavit that Long told him that Maiorana was too dangerous to be out on the street and that if he were not arrested, he would kill someone. The officers also knew that Maiorana was a drug user and had a prior criminal record.
After the parking lot meeting, Callagy and Fleischman went to meet Maiorana at Wells’ apartment. They were still equipped with the electronic device and were to give a signal if there were guns at the apartment, but there were none. MacDonald’s affidavit stated that he listened to what went on in the apartment via the “bug.” MacDonald heard the three go to their car, heard Maiorana leave the car and return and heard one of the informants ask Maior-ana if he had gone back for his gun, to which Maiorana replied that he had. Maiorana was observed leaving the apartment with a.357 Magnum in his belt and getting into the back seat of the car which Callagy drove with Fleischman as a front seat passenger. As the car approached the intersection of Montvale Avenue and Washington Street, it stopped for a traffic light in heavy traffic. The officers who had been following the car had radioed ahead for another cruiser, which they learned was manned by a young and.inexperienced trooper. Not wishing to involve him and hoping to take Maiorana by surprise, they decided that, if the traffic light turned red again, after turning green, and Callagy’s car was still stopped, they would arrest Maiorana immediately. Callagy’s car was halted again by a change of lights and the arrest attempt was made.
Approaching the car from behind, Long and Guilmette went to the passenger side, and MacDonald and Scire went to the driver’s side. All had their guns drawn, displayed police identification, and shouted warnings not to move. Long reached into the back seat and attempted to restrain Maiorana’s hands. A shot was fired and Long was hit. MacDonald heard Long exclaim, “I am hit,” or words to that effect. He saw movement in the back seat and fired three times. Scire’s affidavit stated that he fired a single shot after seeing Maiorana reach for his waist. Guilmette stated that he shot from a crouched position after realizing that Long had been hit and seeing Maiorana use his left hand to grip the butt of the gun he had in his belt. Scire ran around the car to assist Long. Both Maiorana and Long were taken to the hospital where Maiorana died. The parties now agree that Scire’s shot hit Long, Guil-mette’s shot hit Maiorana in the thigh, and one of MacDonald’s three shots killed Maiorana by piercing his lung and aorta.
After making findings well within the compass of the affidavits, the court went on to rule that the plaintiff’s actions survived her son’s death. Next, it concluded that there was no genuine dispute concerning the reasonableness and good faith of the officers, who the court found had grounds to believe that Maiorana was armed and dangerous and who were called upon to act decisively under the circumstances. The court characterized the plaintiff’s counter-affidavits as “mostly conclusory allegations. [about] the state of mind of the officers... [and] a speculative, unsupported and self-serving analysis of the circumstances surrounding the arrest.” It found no competent evidence to create a material issue of fact as to the reasonable belief and good faith of the officers.
In deciding whether the district court properly granted summary judgment, we are guided by Fed.R.Civ.P. 56 and the principles discussed in Hahn v. Sargent, 523 F.2d 461 (1st Cir. 1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 54 (1976). We must determine whether the defendants, as the moving parties, affirmatively demonstrated that there was “no genuine issue as to any material fact.” Rule 56(c). In doing so, we view the record “ ‘in the light most favorable to. the party opposing the motion,’ ” Hahn, supra, at 464, quoting Poller v. Columbia Broadcasting System, 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962), and “indulge all inferences favorable to the party opposing the motion.” Hahn, supra, at 464, citing United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962). We are also required to consider whether the plaintiff’s counteraffidavits conformed to Rule 56(e), which states in pertinent part:
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to all matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.
We are well aware, as was the district court, that cases like this one in which state of mind is at issue do not usually lend themselves to summary judgment. Poller v. Columbia Broadcasting System, supra, 368 U.S. at 473, 82 S.Ct. 486; Gual Morales v. Hernandez Vega, 579 F.2d 677, 680-81 (1st Cir. 1978); 10 Wright and Miller, Federal Practice and Procedure: Civil § 2730 (1973). In Hahn, where state of mind was at issue, while upholding summary judgment, we indicated that “great circumspection is required” in such circumstances and a trial is appropriate as long as the party opposing summary judgment has given “some indication that he can produce the requisite quantum of evidence to enable him to reach the jury with his claim.” Hahn v. Sargent, supra, 523 F.2d at 468.
Nevertheless, we cannot ignore the Supreme Court’s clear statement that government officials raising immunity defenses to damage suits may properly be awarded summary judgment. In recognizing qualified immunity for most federal officials, the Court recently said:
[D]amage suits concerning constitutional violations need not proceed to trial, but can be terminated on a properly supported motion for summary judgment based on the defense of immunity. See [Scheuer v. Rhodes] 416 U.S., at 250 [94 S.Ct., at 1693]. In responding to such a motion, plaintiffs may not play dog in the manger; and firm application of the Federal Rules of Civil Procedure will ensure that federal officers are not harassed by frivolous lawsuits.
Butz v. Economou, supra, 438 U.S. at 508, 98 S.Ct. at 2911. In Scheuer, a § 1983 action brought against various state officials by the estates of students killed at Kent State University, the Court had required further proceedings on the issue of good faith “either by way of summary judgment or by trial on the merits." Scheuer v. Rhodes, supra, 416 U.S. at 250, 94 S.Ct. at 1693. See also Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978), where summary judgment was upheld for state prison officials asserting qualified immunity for interference with prisoners’ mail.
There are two competing considerations bearing on whether summary judgment should be granted in civil rights cases where qualified immunity is asserted. The traditional reluctance to grant summary judgment in cases involving state of mind issues (such as good faith) is counterbalanced by the desirability of screening out frivolous actions through the summary judgment filter so as not to discourage officials from taking necessary and decisive action. See Butz v. Economou, supra, 438 U.S. at 496 and 506, 98 S.Ct. at 2906 and 2911.
It is with this perspective that we determine whether the defendants were entitled to summary judgment.
We have the least difficulty concluding that summary judgment was properly awarded Jajuga. Jajuga could not be held liable under § 1983 unless he had some personal role in Maiorana’s death. Kostka v. Hogg, 560 F.2d 37, 40 (1st Cir. 1977). According to the undisputed facts, he did not participate in the investigation that led to the attempted arrest of Maiorana and was not present when Maiorana was shot.
Furthermore, although one of the plaintiff’s counteraffidavits sharply contradicted some of Jajuga’s sworn statements, it failed to establish the existence of a genuine and material factual issue concerning his liability. The dispute centered on whether Jaju-ga had supplied Maiorana with guns, money, and drugs when Maiorana was acting as his informant — an issue that had no direct bearing on Jajuga’s involvement in the fatal shooting, of Maiorana. There was further disagreement as to whether Jajuga threatened Maiorana when he said he no longer wanted to be an informant, but there was nothing solid in the plaintiff’s counteraffidavit to link this alleged threat to the actions of those who participated in the fatal shooting.
By asserting in her brief that “[Jajuga’s] actions in supplying Maiorana with drugs, money and guns may have contributed to the circumstances bringing about [Maiorana’s] death,” the plaintiff has attempted “to build a case on the gossamer threads of whimsy, speculation and conjecture.” Manganaro v. Delaval Separator Co., 309 F.2d 389, 393 (1st Cir. 1962). Even if Jajuga had engaged in the misconduct alleged by the plaintiff, there was no indication that it brought about the shooting of Maiorana by the others. Cf. Palmer v. Hall, 517 F.2d 705, 708—19 (5th Cir. 1975) (judgment against mayor reversed for insufficient evidence that his “shoot to kill” statements caused a police officer to shoot the plaintiff). In the absence of a genuine issue as to Jajuga’s involvement in the shooting, summary judgment was warranted. See Simms v. Reiner, 419 F.Supp. 468, 474-75 (N.D.Ill.1976); Richardson v. Snow, 340 F.Supp. 1261, 1262-63 (D.Md.1972) (police chiefs not involved in shootings held entitled to summary judgment). Cf. Kostka v. Hogg, supra, 560 F.2d at 40-41; Delaney v. Dias, supra, 415 F.Supp. at 1353-55 (police chiefs held entitled to dismissals due to insufficient allegations of their involvement in subordinates’ misconduct).
A more difficult question is whether summary judgment should have been granted Long, Guilmette, Scire, and MacDonald. All participated in the events leading up to and including the fatal shooting. Their affidavits indicate that Long took the lead and chose the moment of arrest. Each of the others, by his own admission, fired his gun at the decedent.
In addressing the liability of these defendants, we bear in mind that “police officers... must often act swiftly and firmly at the risk that action deferred will be futile or constitute virtual abdication of office.” Scheuer v. Rhodes, supra, 416 U.S. at 246, 94 S.Ct. at 1691. We also recognize that an arrest may sometimes entail the use of deadly force and that liability under § 1983 will not arise if the officers involved reasonably believed in good faith that such force was necessary to protect themselves or others from death or great bodily harm. See, e. g., Clark v. Ziedonis, 513 F.2d 79, 81 (7th Cir. 1975); Willis v. Tillrock, 421 F.Supp. 368, 370-72 (N.D.Ill.1976). See generally, Butz v. Economou, supra, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895; Pierson v. Ray, supra, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288. See also Hebah v. United States, 456 F.2d 696, 709, 197 Ct.Cl. 729 (1972), cert. denied, 409 U.S. 870, 93 S.Ct. 199, 34 L.Ed.2d 121; Commonwealth v. Young, 326 Mass. 597, 601-02, 96 N.E.2d 133, 135 (1950).
At the time Maiorana left the apartment with Callagy and Fleischman, all officers knew that he was armed with a.357 Magnum, they had been reliably informed that he carried this gun to get an edge on the police and that he could fire it without drawing it entirely out of his jacket. They also had been reliably informed that when arrested the previous year Maiorana had gone for a gun hidden under a pillow. They knew he had a prior criminal record and was a drug user. Based upon all the information the defendants had, they would have been extremely naive to believe that arresting Maiorana was going to be easy or routine. While it might be argued that the defendants overreacted, this is purely Monday morning quarterbacking.
We agree with the district court that the affidavits lead inexorably to the conclusion that the defendants acted “out of a sense of public duty without malice and in good faith to effect the safe apprehension of Maiorana.” On the defendants’ version of the facts, we find no issue as to their reasonableness or good faith and no possible basis for a judgment holding them liable. See Brubaker v. King, 505 F.2d 534, 538-39 (7th Cir. 1974). Compare Jaroslawicz v. Seedman, 528 F.2d 727, 732 (2d Cir. 1975).
The next and crucial question, therefore, is whether the plaintiff’s counteraffidavits raised a genuine issue of fact as to the officers’ reasonable belief and good faith. See Tristis v. Backer, 501 F.2d 1021, 1024 (7th Cir. 1974); Strutt v. Upham, 440 F.2d 1236,1237 (9th Cir. 1971). It is clear, as the district court found, that they did not.
The pertinent portions of the plaintiff’s counteraffidavits are set forth in the margin. The principal assertions in them are that (1) Long knew Maiorana could have been arrested, unarmed, earlier on the 15th, (2) after shooting Long, Scire holstered his gun and went to Long’s aid, and Guilmette and MacDonald observed this before shooting, and (3) MacDonald’s fatal shot hit Maiorana one and one-half inches under the left armpit without striking his arm.
As the defendants correctly point out, the critical portions of the counteraffidavits do not comply with Rule 56(e). The defects are numerous. To begin with, the plaintiff’s statements were not made “on personal knowledge” since she did not witness the events of the 15th. Hahn v. Sargent, supra, 523 F.2d at 466-67. See Chan Wing Cheung v. Hamilton, 298 F.2d 459, 460 (1st Cir. 1962). See generally Automatic Radio Manufacturing Co. v. Hazeltine Research, Inc., 339 U.S. 827, 831, 70 S.Ct. 894, 94 L.Ed. 1312 (1950). They were, instead, purportedly based upon testimony she heard at an inquest and on an autopsy report. Yet, sworn or certified copies of the transcript of the inquest and the autopsy report were not, as required, attached to her counteraffidavits or served with them. Washington Post Co. v. Keogh, 125 U.S.App.D.C. 32, 38, 365 F.2d 965, 971 (1966), cert. denied, 385 U.S. 1011, 87 S.Ct. 708, 17 L.Ed.2d 548 (1967). In addition, to the extent that the plaintiff was repeating statements made by others, she was apparently relying upon hearsay — inadmissible evidence to which she would not be competent to testify. Broadway v. City of Montgomery, Alabama, 530 F.2d 657, 661 (5th Cir. 1976). Particular portions of the counteraffidavits were improper because they purported to examine the defendants’ thoughts as well as their actions. Hahn v. Sargent, supra, 523 F.2d at 466. Other portions contained impermissible speculation or eonclusory language. Applegate v. Top Associates, Inc., 425 F.2d 92, 96-97 (2d Cir. 1970). See Feldman v. Birger, 205 F.Supp. 87, 90 (D.Mass.1962).
The plaintiffs’ efforts to salvage her counteraffidavits on appeal do not impress us. First, she appears to argue that she should be excused for her failure to append or serve the inquest transcript. Nevertheless, the mandatory language of Rule 56(e) and the weight of authority are to the contrary. 6 Pt. 2, Moore’s Federal Practice 1156.22[1] at 1328 (2d ed. 1976), and cases cited at n.53. But see Washington v. Johns-Manville Corp., 259 F.Supp. 440, 458 (E.D. Pa.1966). We do not see why, even if the transcript was bulky, the relevant portions could not have been properly presented, or the transcript at least proffered in the district court. Whitaker v. Coleman, 115 F.2d 305, 307 (5th Cir. 1940).
The plaintiff argues that her counteraffidavits were legally sufficient insofar as they summarized inquest testimony which was given by the defendants in her presence and in which the defendants made statements inconsistent with their affidavits. There is authority suggesting that affidavits containing such information fall within an exception to the hearsay rule and sufficiently comply with Rule 56(e). Corley v. Life and Casualty Insurance Co. of Tennessee, 111 U.S.App.D.C. 327, 328-29, 296 F.2d 449, 450-51 (1961); Douglas v. Beneficial Finance Co. of Anchorage, 334 F.Supp. 1166, 1169—70 (D.Alaska 1971). This authority does not aid the plaintiff, however, because the counteraffidavits do not pose any material discrepancies between the inquest testimony and the affidavits given by any of the defendants.
Finally, the plaintiff urges that affidavits filed by a party opposing summary judgment have been treated with more indulgence than those of the moving party. 6 Pt. 2, Moore’s Federal Practice, supra, at 1333-34, and cases cited at nn.64 and 65; 10 Wright and Miller, Federal Practice and Procedure: Civil § 2738 at 708-09 (1973), and cases cited at n.61. Applying this approach here would conflict to some extent with the Supreme Court’s admonition that, when government officials are sued, the rules concerning summary judgment should be given “firm application.” Butz v. Econo-mou, supra, 438 U.S. at 508, 98 S.Ct. at 2911. Even so, we might be inclined toward leniency had there been some clear sign the plaintiff could have defeated summary judgment with properly drafted coun-teraffidavits. There was not.
Even if the plaintiff had somehow shown that Long knew Maiorana could have been arrested earlier while unarmed, we do not think a trial would have been required. The timing of the arrest was primarily geared to the firearms trafficking investigation. The police cannot be faulted for hoping to get two birds with one stone. They started out on the morning of the 15th hoping to seize a supply of illegal firearms and to arrest Maiorana. The delay, even if intentional, did not create an issue as to the officer’s reasonable belief or good faith.
Nor, do we believe, would evidence that Guilmette and MacDonald observed Scire holster his gun and go to Long’s aid after shooting him have made any difference. We do not agree with the plaintiff’s suggestion that this would cut against a finding that the officers reasonably believed in good faith that they were still in danger from Maiorana. It could just as well have meant that Scire felt Maiorana could be handled by Guilmette and MacDonald.
We cannot agree with the plaintiff that the statement in one of her affidavits that the bullet that killed her son entered under his left armpit created an issue of material fact because it showed that he was shot while his arms were raised to surrender. This is a pretty shaky inference. Maiorana could just as well have been in the act of drawing his weapon or moving his arm to do so. Such evidence does not in any way contradict MacDonald’s sworn statement that he saw movement before shooting or create an issue as to whether he reasonably believed in good faith that deadly force was necessary. There was no way that there could have been testimony to the contrary if there were a trial. This is clearly not the type of situation where the physical facts themselves create an issue, as, for instance, if Maiorana had been shot in the back.
To summarize, the critical portions of the plaintiff’s counteraffidavits have such glaring and pervasive defects that we are obliged to give them little weight, but, even if we considered them as in full compliance with the rule, we do not feel they would prevent summary judgment. See Tritsis v. Backer, supra, 501 F.2d at 1024; Strutt v. Upham, supra, 440 F.2d at 1237.
Because of our decision that summary judgment was properly granted to all defendants, we do not reach the question whether the plaintiff’s civil rights actions survived her son’s death.
Affirmed.
. The basis of the fourth amendment claim against federal agent MacDonald is attenuated at best: plaintiff alleged in her original complaint that the intended arrest of Maiorana was unlawful. The precise basis of this claim against MacDonald was that the imminent arrest was purportedly for Maiorana’s armed robbery of a Friendly ice cream store, a state offense. Plaintiff argues that, since MacDonald was a federal agent, he had no authority to be involved in arrest for a state offense. We think this argument strains the outer parameters of the federal rules’ mandate to give a liberal reading to complaints and all reasonable inferences drawn therefrom. However, since it is unclear whether plaintiff also claimed that the proposed arrest would have been made without probable cause, we read the complaint as properly, albeit marginally, stating a claimed violation of the fourth amendment. Since we affirm the district court’s judgment for defendant, we need not and do not reach the question of whether the facts alleged herein could underpin a constitutional tort premised on Bivens.
. On appeal, the plaintiff has abandoned her even more serious allegation that the state police defendants conspired to kill her son, who she said had been an informant, but had threatened to cease such activity and expose illegal activities by the police. The plaintiffs brief focussed on the claim that the police had been grossly negligent in effecting her son’s arrest. At oral argument, her counsel expressly disavowed any claim that the deceased was deliberately “set up” and murdered and relied on gross negligence and/or recklessness in the arrest to establish liability.
. See n. 1, supra.
. After the arres.., Maiorana was bound over for the next term of the grand jury. No further explanation is given as to why he was not in custody during the events which concern us.
. This ruling applied not only to the plaintiff s claim that the defendants used excessive force in arresting her son, but also to her conspiracy to murder claim and her claim as to gross negligence by the defendants in supplying her son with guns and drugs.
. This statement expressly contravened the minority view, which was that summary judgment would rarely be appropriate in an action in which the central issue was an official’s state of mind. Butz v. Economou, 438 U.S. 478, 526, 98 S.Ct. 2894, 2921, 57 L.Ed.2d 895 (1978).
. For example, the allegation that, on the evening before he was shot, Maiorana told the plaintiff that he was afraid police were going to kill him did not specifically connect Jajuga to the shooting. And, as noted at n. 2, supra, the plaintiff is no longer pressing her conspiracy to murder claim.
Further allegations that Jajuga warned Long to be careful of Maiorana and gave him Maior-ana’s picture do not appear to be based on the plaintiffs personal knowledge, as required by Rule 56(e). Even if they were, they would not appreciably advance the plaintiffs case against Jajuga, in light of the ample information the officers at the scene had from other sources that Maiorana was armed and dangerous.
. The counteraffidavit submitted against Long said, in part:
Trooper Long.. knew that during that same morning my son was walking the streets of Woburn, to a diner and a barbershop, unarmed, and under surveillance by his men, was not dangerous, could have been safely arrested during these few hours, but chose not to do so. There would have been no risk of ‘death or serious bodily harm’ during this period. Instead he waited until my son made a last minute trip back into the house for a gun and then followed several miles in traffic until they had placed my son in a dangerous condition, then allowed excessive force to be used while apprehending my son.
... Where the shooting that took place it is a busy intersection, he cannot maintain that he was faithfully performing his duties to protect the public.
The counteraffidavit submitted against MacDonald and Scire said, in part:
Agent MacDonald states in paragraph 19 of his affidavit that he was about even with the driver (of Maiorana car) when he heard a shot, and heard Trooper Long say he was shot.
This could not be so, as Officer Scire testified at the inquest into the death of my son that he, (Scire) reached the car on that side, at the same time Long opened the door on passengers’ side. He further testified that MacDonald was behind him, following him to driver’s side. When he (scire) reached the driver”s side, he opened the door, pushed the front seat forward (with the driver still in it) claimed he saw a movement in the back seat of the car and fired one shot (at the movement) hitting Trooper Long who fell back out of the car, crying that he was hit.
Officer Scire then testified that he holstered his gun, then ran around the car to assist Long, who he knew he shot. He did not bump into MacDonald (who”s testimony was that he was a step behind Scire on the way to the car). He did not even see MacDonald during this period.
MacDonald, however must have seen Scire and his actions. It was plain to him that Scire had shot into the car, then showed no further interest in shooting again, or even holding his pistol pointed into the car
Question: Did the court rule that the defendant had inadequate counsel?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_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.
Harry B. HELMSLEY, Plantiff-Appellant, v. CITY OF DETROIT, MICHIGAN, a Municipal Corporation of the State of Michigan, Defendant-Appellee.
No. 15134.
United States Court of Appeals Sixth Circuit.
July 25, 1963.
Henry J. Freud, Detroit, Mich. (James P. Mattimoe, Detroit, Mich., on the brief), for appellant.
Julius C. Pliskow, Detroit, Mich. (Robert Reese, Corp. Counsel, Vance G. In-galls, Irving S. Wolfe, Nick Sacorafas, Assts. Corp. Counsel, City of Detroit, Detroit, Mich., on the brief), for appellee.
Before CECIL, Chief Judge, and MILLER and O’SULLIVAN, Circuit Judges.
CECIL, Chief Judge.
This is an appeal from a judgment of the United States District Court for the Eastern District of Michigan, Southern Division, in an action brought by the plaintiff under the Declaratory Judgment Act (Section 2201, Title 28, U.S.C.) to declare the assessments for 1960 and 1961 ad valorem taxes, on certain industrial real estate in the city of Detroit owned by plaintiff, as being in violation of the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States. Harry B. Helmsley, plaintiff-appellant, and City of Detroit, defendant-appellee, will be referred to as plaintiff and defendant, respectively.
The district judge acting sua sponte dismissed the complaint for lack of jurisdiction and the plaintiff appealed.
The plaintiff claims jurisdiction by virtue of diversity of citizenship, the amount in controversy being in excess of $10,000, exclusive of interest and costs (Section 1332, Title 28, U.S.C.). He also claims jurisdiction by reason of the existence of a federal question under the Fourteenth Amendment to the Constitution of the United States. (Section 1331, Title 28, U.S.C.)
The property in question as described :in the complaint was purchased by a partnership of which the plaintiff was a .member, for the sum of $500,000. At the time this action was commenced, the •plaintiff had succeeded to the sole ownership. We will refer to him as the owner and purchaser. The property was described as an obsolete manufacturing plant, consisting of eleven factory buildings, an office building and a power house. It had been abandoned as a manufacturing plant by Murray Corporation of America in 1954. It is alleged that the only possible present use for the property is division into small or light industrial tenancies, and that even for such purpose part of it is unusable.
For the years in question, 1960 and 1961, the assessment for tax purposes was $3,532,350, of which amount $3,230,-180 was for buildings and $302,170 was for land. On the basis of this assessment, the tax burden for the year 1961 was approximately $180,000. At the current level of taxes, the plaintiff suffered a loss of $360,000 in carrying the property from April 1,1960, to July 1,1961.
The plaintiff charges that the assessing officials of the city of Detroit are “wil-fully and deliberately following an intentional and systematic plan to assess the property in a wrongful manner and without any regard whatever to its true cash valuethat their method “is arbitrary, capricious and based on fundamentally unsound principles;” and that the result is “so totally unreasonable as to constitute fraud in law.” He further charges that while the assessors are wil-fully assessing his property at seven times its cash value, they are wilfully assessing most Detroit property at an average of one-third to one-half of cash value.
Having exhausted all administrative remedies by timely and proper appeals to the Board of Review of the City of Detroit and to the State Tax Commission, the plaintiff sought relief in the United States District Court. The plaintiff claims that the action of the assessing officials deprives him of his property without compensation and without due process of law and denied him equal protection of the laws all in violation of the Fourteenth Amendment.
The law of the state of Michigan and the city of Detroit provides that the assessment of all real and personal property for ad valorem taxes shall be uniform and at cash value. (Art. X, Secs. 3, 7, Mich.Const.; Title VI, Ch. II, Sec. 1, Charter, City of Detroit; Comp.L. Mich., 1948, Sec. 211.24, MSA Sec. 7,24) Cash value is defined as the price which could be obtained for the property at private sale and not at forced or auction sale. (Comp.L.Mich., 1948, Sec. 211.27, MSA Sec. 7.27) The plaintiff alleges that the property in question is assessed at over seven times its true cash value.
The defendant filed an answer, in which it was alleged inter alia, that the plaintiff had not resorted to “the plain, available and adequate remedy at law provided” by the Michigan statutes. This question arose at a pretrial conference and since the defendant did not file a motion to dismiss the complaint the trial judge considered the question sua sponte.
Section 1341, Title 28, U.S.C. (Johnson Act) provides, “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” Even though the plaintiff is not seeking to “enjoin, suspend or restrain the assessment, levy or collection of any tax under” the law of Michigan, it is the duty of a district judge to withhold relief by way of declaratory judgment where it appears that the taxpayer has an adequate remedy under state law. Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 300, 63 S.Ct. 1070, 87 L.Ed. 1407.
In Matthews v. Rodgers, 284 U.S. 521, 525-526, 52 S.Ct. 217, 219-220, 76 L.Ed. 447, the court said: “The scrupulous regard for the rightful 'independence of state governments which should at all times actuate the federal courts, and a proper reluctance to interfere by injunction with their fiscal operations, require that such relief should be denied in every case where the asserted federal right may! be preserved without it. Whenever the question has been presented, this Court, has uniformly held that the mere illegality or unconstitutionality of a state or municipal tax is not in itself a ground for equitable relief in the courts of the United States. If the remedy at law is. plain, adequate and complete, the aggrieved party is left to that remedy in the state courts, from which the cause may be brought to this Court for review' if any federal question be involved.”
We turn now to the state remedies. In the first instance taxable prop-' erty is assessed at its estimated true cash value. (Comp.L.Mich.1948, Sec. 211.24, MSA Sec. 7.24) This assessment is subject to review by a board of review on complaints of individual taxpayers. A further review may be had before the State Tax Commission. (Comp.L.Mich. 1948, Sec. 211.152, MSA Sec. 7.210) There is no provision for a judicial review from a decision of the commission. Its action is final. (Comp.L.Mich.1948, Sec. 211.152, MSA Sec. 7.210) Plaintiff has exhausted this avenue of relief. We do not find that review of the action of the commission by certiorari to the Supreme Court of Michigan, as suggested by counsel for the defendant, offers any real practical remedy. The cases cited by counsel in their brief do not support this procedure as an available remedy.
A taxpayer may obtain relief from illegal and discriminatory taxes by injunction in cases of fraud or where jrreparable injury would result from payment of the tax. This remedy is available notwithstanding Section 211.114, Comp.L.Mich., 1948 (MSA Sec. 7.168) which provides that “[n]o injunction 'shall issue to stay proceedings for the •assessment or collection of taxes.” Wyzlic v. City of Ironwood, 365 Mich. 87, 112 N.W.2d 94; United States Cold Storage Corp. v. Detroit Board of Assessors, 349 Mich. 81, 89, 84 N.W.2d 487; Haggerty v. City of Dearborn, 332 Mich. 304, 316, 51 N.W.2d 290; Sunday Lake Iron Company v. City of Wakefield, 323 Mich. 497, 506, 35 N.W.2d 470; Twenty-two Charlotte, Inc. v. City of Detroit, 294 Mich. 275, 282, 293 N.W. 647; Sloman-Polk Co. v. City of Detroit, 261 Mich. 689, 247 N.W. 95, 87 A.L.R. 1294; Copper Range Co. v. Adams Township, 208 Mich. 209, 175 N.W. 282. The plaintiff has alleged fraud but if he is not able to establish this claim or cannot show that irreparable injury would result from payment of tire tax there is a further remedy open to him.
This remedy appears to be adequate and complete. Comp.L.Mich.1948, Sec. 211.53, as amended by Pub.Acts 1962, No. 133 (MSA Sec. 7.97), provides that a taxpayer may pay the tax under protest and bring suit for recovery of the tax paid. There are many cases in Michigan in which this remedy has been invoked. Davidson v. City of Lansing, 356 Mich. 697, 97 N.W.2d 592; Naph-Sol Refining Co. v. Township of Muskegon, 346 Mich. 16, 77 N.W.2d 255; Haggerty v. City of Dearborn, 332 Mich. 304, 51 N.W. 2d 290; Helin v. Grosse Pointe Township, 329 Mich. 396, 45 N.W.2d 338; Moran v. Grosse Pointe Township, 317 Mich. 248, 26 N.W.2d 763; Hudson Motor Car Co. v. City of Detroit, 282 Mich. 69, 275 N.W. 770, 113 A.L.R. 1472; S. S. Kresge Co. v. City of Detroit, 276 Mich. 565, 268 N.W. 740, 107 A.L.R. 1258.
The tenor of the opinions in these cases may be stated as follows: “Under the Constitution and laws of this State, the final arbiter of value for taxing purposes which, when it has jurisdiction, determines the same finally and conclusively, is the State tax commission.” Hudson Motor Car Co. v. City of Detroit, 282 Mich. 69, 81, 275 N.W. 770, 775.
In Naph-Sol Refining Co. v. Township of Muskegon, 346 Mich. 16, 20, 77 N.W.2d 255, 257, the Court, quoting from the syllabi of S. S. Kresge Company v. City of Detroit, 276 Mich. 565, 268 N.W. 740, stated the general rule: “ ‘Assessments of properties for purposes of taxation will not be disturbed by courts unless they are so at variance with undisputed facts as to be a fraud upon the taxpayer, notwithstanding courts might disagree with conclusions of assessing officers in the exercise of their discretionary power and adopt a different figure upon the same evidence. * * *
“ ‘Courts cannot substitute their judgment as to the valuation of property for the judgment of duly constituted tax authorities unless assessments are shown clearly to transgress reasonable limits, mere overvaluation or error of judgment not amounting to fraud not being enough to warrant court interference.’ ”
Taxation is a legislative function and not a judicial function. It is proper therefore that courts should not substitute their judgment for that of the taxing authorities and should not interfere with them except in cases of constructive fraud. The obj ections which the plaintiff makes to the assessment of the property in the case before us, if proven, would come within the definition of fraud as given in these cases. He can preserve his constitutional rights in an action to recover taxes paid under protest and secure a review of them by the Supreme Court of the United States. Great Lakes Dredge & Dock Co. v. Huffman, supra.
Under a statute of Louisiana similar to the Michigan payment under protest statute (Comp.L.Mich.1948, Sec. 211.53, MSA Sec. 7.97) the Supreme Court held that the Louisiana law afforded an adequate remedy and that “in the appropriate exercise of the court’s discretion, relief by way of a declaratory judgment should have been denied * * Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 301-302, 63 S.Ct. 1070, 1074, 87 L.Ed. 1407. At page 298 of 319 U.S., at page 1073 of 63 S.Ct. the Court said: “It is in the public interest that federal courts of equity should exercise their discretionary power to grant or withhold relief so as to avoid needless obstruction of the domestic policy of the states.” And at pages 300-301 of 319 U. S., at page 1074 of 63 S.Ct.: “With due regard for these considerations, it is the court’s duty to withhold such relief (declaratory judgment) when, as in the present case, it appears that the state legislature has provided that on payment of any challenged tax to the appropriate state officer, the taxpayer may maintain a suit to recover it back. In such a suit he may assert his federal rights and secure a review of them by this Court. This affords an adequate remedy to the taxpayer, and at the same time leaves undisturbed the state’s administration of its taxes.” We hold that this case is controlling of the issues in the case before us.
Matthews v. Rodgers, supra, involved a statute of Mississippi by which a taxpayer could pay a tax under protest and bring suit in the state court for its recovery. The court held that such a procedure saves to the taxpayer his federal right and defeats the jurisdiction of federal courts to enjoin collection of the tax.
Judge Starr, Senior District Judge for the Western District of Michigan, in a recent well-reasoned opinion held that the Michigan statute in question afforded a taxpayer an adequate remedy and that the District Court did not have jurisdiction over the subject matter of an action to enjoin the collection of an alleged illegal tax. Carbonneau Industries, Inc. v. City of Grand Rapids, D.C., 198 F.Supp. 629. See also Kohn v. Central Distributing Co., 306 U.S. 531, 59 S.Ct. 689, 83 L.Ed. 965.
Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101, did not reverse Great Lakes Dredge & Dock Co. v. Huffman, as implied by counsel for plaintiff. In this case the court vacated the judgment of the Circuit Court of Appeals and remanded it to the District Court to be held until the state courts of Connecticut decided the questions of state law. The court indicated that the District Court had jurisdiction to entertain the complaint on its constitutional aspects for the reason that the adequacy of a remedy under the Connecticut law was uncertain. The remedy is not uncertain either in our case or the Great Lakes case.
Township of Hillsborough Somerset County, N. J., v. Cromwell, 326 U.S. 620, 66 S.Ct. 445, 90 L.Ed. 358, cited by counsel for the plaintiff is not in point as distinguished by the Court. At page 629 of 326 U.S., at page 451 of 66 S.Ct. the Court said: “Thus, however the case may be viewed, the exceptional circumstances which we have noted take it out of the general rule of Great Lakes Dredge & Dock Co. v. Huffman, supra.” In this case a taxpayer who claimed that his taxes were too high as compared to other taxpayers of the district could not bring an action to reduce his taxes, but must sue to increase his neighbors’ taxes. The court held that this was not an adequate remedy.
In the complaint the plaintiff asks the District Court to fix the assessment for real estate taxes at $500,000. Counsel argue in the brief that “a judgment for refund following payment under protest does not conclude the controversy, but simply relegates the taxpayer to ultimate re-determination of the tax assessment by an administrative tribunal from whose decisions, made within its broad statutory jurisdiction, there is no appeal to a court.”
We do not think it is the function of any trial court, having jurisdiction to hear plaintiff’s complaint, to specifically fix the amount of the assessment on his property. The court could only find that the assessment was illegal and discriminatory and point out the reasons for its conclusion. The matter would then have to be remanded to the tax commission which has the final authority to make a reassessment consistent with the court’s decision. It would seem that administrative officers would be obligated by their oaths of office to act in accordance with judgments of the courts pointing out the illegality of their past actions.
One of the claims made by plaintiff is that there is no adequate state remedy for the reason that the Michigan statute, which authorizes payment of tax under protest, does not provide for the allowance of interest in the event of a refund. This claim is not substantiated by the Michigan cases. Ready-Power Co. v. City of Dearborn, 336 Mich. 519, 58 N.W.2d 904; Standard Oil Co. v. State of Michigan, 283 Mich. 85, 276 N.W. 908; Corby v. City of Detroit, 191 Mich. 308, 158 N.W. 160; City of Grand Rapids v. Blakely, 40 Mich. 367.
We conclude that the statutes of Michigan afforded the plaintiff an adequate and complete remedy for the adjudication of his claim that the assessment against his property is illegal and discriminatory. In pursuing this remedy he can assert his constitutional rights and have them finally determined in the Supreme Court of the United States. The conclusion reached by the trial judge in his opinion, reported at 205 F.Supp. 793, is correct and the judgment is accordingly affirmed.
. Thomson v. City of Dearborn, 348 Mich. 300, 83 N.W.2d 329; In re Dearborn Clinic & Diagnostic Hospital, 342 Mich. 673, 71 N.W.2d 212; City of Negaunee v. State Tax Commission, 337 Mich. 169, 59 N.W.2d 136.
. “Any person may pay the taxes or special assessments, or any one of the several taxes or special assessments, on any parcel or description of land, or on any undivided share thereof, and the treasurer shall note across the face of the receipt in ink any portion of the taxes or special assess-meats remaining unpaid. He may pay any tax or special assessment, whether levied on personal or real property, under protest, to the treasurer, specifying at the time, in writing, signed by him, the grounds of such protest, and such treasurer shall minute the fact of such protest on the tax roll and in the receipt given. The person paying under such protest may, within 30 days and not afterwards, sue the township for the amount paid, and recover, if the tax or special assessment is shown to be illegal for the reason shown in such protest.”
. Hudson Motor Car Co. v. City of Detroit, 282 Mich. 69, 79, 275 N.W. 770, 113 A.L.R. 1472.
. La.Acts 1938, Act 330, LSA-R.S. 47:1575, 47:1576, 47:2110. This statute differs from the Michigan statute in that the money paid under protest is held in a separate fund until the case is decided.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
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".
UNITED STATES of America, Plaintiff-Appellee, v. 124.84 ACRES OF LAND, MORE OR LESS, Situate IN WARRICK COUNTY, STATE OF INDIANA, Chester S. Vanada and Betty Ray Vanada, Robert P. Lant and Gertrude A. Lant et al., Defendants-Appellants.
No. 16196.
United States Court of Appeals Seventh Circuit.
Jan. 2, 1968.
William T. Fitzgerald, F. Wesley Bowers, Evansville, Ind., for appellants.
Richard P. Stein, U. S. Atty., Sidney Milum, Asst. U. S. Atty., Indianapolis, Ind., Edwin L. Weisl, Jr., Asst. Atty. Gen., Robert M. Perry, Roger P. Marquis, Attys., Dept, of Justice, Washington, D. C., Claude D. Brown, Sp. Asst, to the U. S. Atty., Indianapolis, Ind., for appellee.
Before CASTLE, SWYGERT and FAIRCHILD, Circuit Judges.
CASTLE, Circuit Judge.
The defendants-appellants, Chester S. Vanada, Betty Ray Vanada, Robert P. Lant and Gertrude A. Lant, prosecute this appeal from a judgment order of the District Court approving and adopting a report of Commissioners appointed pursuant to Rule 71A of the Federal Rules of Civil Procedure. The report fixes the sum of $40,867.00 as the just compensation due the defendants for 47.52 acres of land taken by the government to provide for the construction of a navigational lock and dam on the Ohio River. The acreage involved, referred to as Tract No. 108, is located along the northern shore of the river in Anderson Township, Warrick County, Indiana, east of Newburgh, Indiana. It was unimproved at the time of the taking, and approximately 30 acres of the tract was subject to annual flooding. It had been used for agricultural purposes. Intervening between the northern boundary of the tract taken and a state highway there remained a narrow strip of land about twenty feet higher than the acreage taken, and upon which there had formerly stood 14 summer houses or cabins utilized in connection with fishing and boating.
On appeal the defendants contend the District Court erred in overruling their objections to the commission’s report. The government counters with contentions that the objections were inadequate for lack of specificity, and that, in any event, the arguments advanced by the defendants on appeal do not demonstrate the existence of error requiring a reversal.
A number of the objections made by defendants to the report are too general to comply with the mandate of United States v. Merz, 376 U.S. 192, 199, 84 S.Ct. 639, 643, 11 L.Ed.2d 629, that such objections be “in specific, rather than in generalized form”. And, although the objection made concerning the commission’s admission of testimony of the government’s valuation witness with respect to sales of properties some 25 miles distant from the tract taken, and also challenged for lack of comparability; the objection that the commission improperly discriminated between the defendants and the government with respect to the admission of testimony concerning post-take sales of property; and the objection relative to the exclusion of testimony proffered by defendants as to the value of real estate asserted to be comparable with the tract taken, might well have been more specifically made, it is our conclusion, based on the limited number of valuation witnesses who testified, the relatively few sales to which reference was made, and the brevity of the record as to Tract 108, that the objections sufficed to pin-point the relevant testimony alluded to and the particular issue raised.
We are likewise unpersuaded by the defendants’ contention that the commission’s report was insufficient to provide the basis for proper review. The commission’s summarization of the valuation testimony reflects the commission’s analysis of the substance of that evidence, and the portion of the report devoted to expressing the commission’s conclusions and reasons distinctly marks the path followed by the commission in reaching the amount of the award.
The commission’s factual findings may not be rejected unless they are “clearly erroneous”. Rule 53(e) (2) of the Federal Rules of Civil Procedure is applicable to such findings. United States v. Merz, 376 U.S. 192, 198, 84 S.Ct. 639, 643, 11 L.Ed.2d 629. And, as pointed out in Merz:
The commissioners need not make detailed findings such as judges do who try a case without a jury. Commissioners, we assume, will normally be laymen, inexperienced in the law. But laymen can be instructed to reveal the reasoning they use in deciding on a particular award, what standard they try to follow, which line of testimony they adopt, what measure of severance damages they use, and so on. We do not say that every contested issue raised on the record before the commission must be resolved by a separate finding of fact. We do not say that there must be an array of findings of subsidiary facts to demonstrate that the ultimate finding of value is soundly and legally based. The path followed by the commissioners in reaching the amount of the award can, however, be distinctly marked. Such a requirement is within the competence of laymen; and laymen, like judges, will give more careful consideration to the problem if they are required to state not only the end result of their inquiry, but the process by which they reached it.
We turn to consideration of the defendants’ contentions that the commission erred in the admission and in the exclusion of testimony concerning sales relied upon as comparable. The testimony of the government’s valuation witness included testimony with respect to sales of properties 20 to 25 miles distant from Tract 108. In this connection the witness testified to the effect that to find overflow river bottom land with the same characteristics and soil type as Tract 108 it was necessary to move over into the area of the adjoining county. One of defendants’ witnesses had testified, in this respect, that he found it “a little hard to find comparables on farm land, that is, this type land”. We perceive no error in the admission of the testimony concerning the sales to which defendants object. The test of comparability of sales is not dependent upon mere distance alone. Similarity of character and locality depends not upon mere propinquity. Knollman v. United States, 6 Cir., 214 F.2d 106,109. The sales here in question were all within the same market area, and were of properties in the same flood plain, subject to similar overflow, and of the same soil type as the subject property. Determination of comparability rests within the discretion of the trier of the facts, and ordinarily will not be disturbed on review. Bailey v. United States, 1 Cir., 325 F.2d 571, 572; Fain v. United States ex rel Tennessee Valley Authority, 6 Cir., 145. F. 2d 956, 958. Cf. United States v. Lowrie, 4 Cir., 246 F.2d 472, 474. Any dissimilarity in comparable sales goes to the weight of the testimony, rather than to its admissibility. Ramming Real Estate Co. v. United States, 8 Cir., 122 F.2d 892, 895. The weight to be accorded evidence of sales of similar properties is for the trier of the facts — here the commission. United States v. Meyer, 7 Cir., 113 F.2d 387, 397.
The valuation testimony of the defendants’ witnesses related primarily to sales of nearby properties for industrial and commercial purposes. The commission in its report concluded that due to the low elevation of Tract 108 and the high cost of fill, factors established by the evidence, the highest and best use of the tract must be considered to be agricultural, but because of a “presently existing and recognized potential for a higher use at some time in the future” for which a willing buyer would pay, the commission found a value of $860 an acre rather than the $525 an acre valuation placed on the tract by the government’s witness on the basis of agricultural use.
The commission, however, did exclude testimony proffered by defendants by which they sought to establish the capitalized value of a post-take 99 year lease of an adjacent 30 acre tract. The government objected to the admission of this testimony on the ground, inter alia, that the lease was a special-purpose lease. The record shows that this lease was granted by George Vanada, a brother of defendant Chester Vanada, to Ryan Construction Co. in June 1966. Ryan was a contractor on the government project’s cofferdam. Although Ryan had completed its work it had applied for a permit to excavate gravel from the cofferdam bar. Ryan leased the site in question as a place on the river where it could consolidate, store and repair its equipment; have a headquarters; utilize the site as a loading dock; and from which it could conduct the retail sale of gravel and crushed rock.
We perceive no error in the exclusion of the testimony relating to the Ryan lease. It is apparent that the lease reflects the unique and special needs of the contractor, and value based on such elements is not a proper basis for the determination of fair market value of the property involved, much less as a measure of the fair market value of adjacent premises. In Kimball Laundry Co. v. United States, 338 U.S. 1, 5, 69 S.Ct. 1434, 1437, 93 L.Ed. 1765, it is pointed out in this connection that:
“ * * * In view, however, of the liability of all property to condemnation for the common good, loss to the owner of non-transferable values deriving from his unique need for the property or idiosyncratic attachment to it, like loss due to an exercise of the police power is properly treated as part of the burden of common citizenship.”
The defendants’ remaining contention is that prejudicial error resulted from improper discrimination between the defendants and the government by the commission in its rulings on the admissibility of testimony concerning post-take sales. This contention is without merit. The defendants posit prejudicial discrimination on the commission’s exclusion of the proffered testimony relative to the capitalized value of the Ryan lease while permitting the government’s witness to testify with respect to a post-taice sale. The post-take sale testified to by the government’s witness served merely to up-date the government’s sales evidence, and, in fact, reflected an increase in value to the defendants’ advantage. The exclusion of the Ryan lease testimony, however, was entirely proper, as indicated above, for a reason other than the coincidence of its post-take date.
The judgment order of the District Court is affirmed.
Affirmed.
. In this connection see also: “United States v. Lewis, 9 Cir., 308 F.2d 453; Morgan v. United States, 8 Cir., 356 F. 2d 17, 23-24; and United States v. Certain Lands in City of Statesboro, 5 Cir., 341 F.2d 742.
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_genapel1
|
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 is to determine the nature of the first listed appellant.
AMERICAN NATIONAL RED CROSS and The Travelers Insurance Company, a corporation, Plaintiffs-Appellants, v. James E. HAGEN, Guardian of James H. Hagen, and R. C. Enos, Deputy Commissioner, Defendants-Appellees.
No. 14300.
United States Court of Appeals Seventh Circuit.
Feb. 4, 1964.
William H. Symmes, David Jacker, Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago, 111., for plaintiffs-appellants.
Frank E. McDonald, U. S. Atty., Chicago, 111., Morton Hollander, Edward Berlin, Attys., Dept, of Justice, Washington, D. C., John W. Douglas, Asst. Atty. Gen., for appellees.
Before SCHNACKENBERG, KNOCH and CASTLE, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
American National Red Cross and The Travelers Insurance Company, a corporation, have appealed from an order of the district court granting the motion of James E. Hagen, guardian of James H. Hagen, and R. C. Enos, Deputy Commissioner, defendants, for summary judgment, denying plaintiffs’ motion for summary judgment and affirming the order and award of said Deputy Commissioner, which order was entered May 28, 1963. The action was brought under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq.
According to § 902(2), “injury” means “accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury * *
The record reveals that the Deputy Commissioner found substantially the following facts:
On November 6, 1960, and for some time prior thereto, James H. Hagen, hereinafter additionally referred to as “claimant” was in the employ of the American National Red Cross, assigned to duty with the troops stationed in Iwakune, Japan, when he suffered a mental breakdown diagnosed as acute schizophrenia reaction, paranoid type. . That illness .arose out of and in ,, . , . ,, , the course of the claimants employ- , ...... . , . ment and that the circumstances m- , . . , . ,, , . volved m the claimant s working .... . . .. ... conditions during the period imme- ,. ,, , . . . diately preceding the onset of his illness on November 6, 1960 were sufficient to create an abnormal stress, and trigger and precipitate his mental breakdown, diagnosed as acute schizophrenia reaction.
Thp rirnflitinn nf “nhnnrmnl stress” was the product of accumulated disturbances in the claimant’s work environment, which included: a conflict between the claimant and a navy chaplain with respect to responsibility for the delivery to servicemen of death messages; the fact that from “August 1, 1960 to October 1, 1960, the claimant herein had been required, because of his official superior’s illness, to take over the duties of his official superior in addition to his own duties; that during this period he was confronted with a difficult personnel problem which involved a matter of questionable conduct on the part of his secretary, necessitating her transfer and the training of an inexperienced replacement; that during the same period and prior to the appointment of a replacement for the official superior, the claimant was subject to caU twenty-four hours a day *
Thereupon the Deputy Commissioner concluded that, as a result of the illness suffered on November 6, 1960, the claimant was totally disabled from March 7, 1961 to September 19, 1962, inclusive, tor which period he was awarded $4,-335.43 (80% weeks at the rate of $54.00 Per week)' Further, the Deputy Corn-missioner found that the claimant has b?ea suffering from a temporary partial disability since September 20, 1962, which, having due regard for the nature o:f mJury, his physical impairment, hls usual employment, and his capacity earn wa®es in his disabled condition is equivalent to 50 per cent loss in earning capacity . Accordingly, the employer and its insurance carrier were addi- ,. ,, , , , ,, , „ tionaliy ordered to pay the lump sum of OOOJ- „„ , ,. , . $225.00 (representing temporary partial ,, , . , , . disability benefits that had accrued from „ i i. M , „ , , September 20, 1962, to October 31, 1962) ■, CA , . .. and $37.50 per week thereafter until otherwige ordered
case a* kar was instituted on November 23, 1962, resulting in the order from which this appeal has been taken,
Plaintiffs contend that an acute schizophrenia reaction is not a compensable ini'ury ™thin the meaning of the Longshoremen s Act, relying on Furlong v. O'Hearne, 144 F.Supp. 266 (Md.1956), affirmed, 4 Cir., 240 F.2d 958 (1957). However, the Deputy Commissioner relies on Travelers Ins. Co. v. Donovan, 95 U.S.App.D.C. 331, 221 F.2d 886, 888. The court there said:
“ * * * Accordingly, absent substantial evidence to the contrary, a disability occurring in the course of employment ‘must be presumed to have arisen therefrom.’ * * * ”
Plaintiffs contend that the specific schizophrenia November 6, 1960 reaction of claimant did not arise out of and in the course of the claimant’s employment. Thus it is well to note that they do not dispute the fact that the claimant is suffering from an acute schizophrenia reaction.
Clearly the Deputy Commissioner did find that claimant suffered an acute schizophrenia reaction, paranoid type, which was triggered and precipitated by working conditions immediately preceding its onset and which “injury arose out of and in the course of employment”.
We find in the record evidence supporting that finding, consisting, inter alia,, of these facts:
(1) that from August 1955 through March 6, 1961, the claimant was in the employ of the American Red Cross;
(2) that on November 6, 1960, he suffered a mental breakdown diagnosed as acute schizophrenia reaction, paranoid type;
(3) that on that date, as he had been for the preceding twenty-one months, the claimant was assigned to duty with troops stationed overseas;
(4) that thereafter, he attempted to take his own life and it became necessary to institutionalize him, and
(5) that as of the date of the hearing before the Deputy Commissioner the claimant was still receiving psychiatric assistance on an outpatient basis and had not yet been gainfully employed.
From a detailed examination of the testimony of claimant, Red Cross Field Director Cecil Roberts, claimant’s father, mother and sister, as well as the medical testimony of his attending physician Dr. Richard 0. Heilman, who stated as his opinion that claimant’s work environment “did precipitate * * * the illness”, and whose opinion was that claimant would require further hospitalization and that “his prognosis in years to come would be just fair”, that claimant could not now earn a living and the likelihood of a complete recovery would be very unusual, we are required to conclude that there is substantial evidence to support the findings of the district court, with which we have no right to interfere. Universal Camera Corp. v. Labor Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456; O’Leary v. Brown-Pacific-Maxon, 340 U.S. 504, 71 S.Ct. 470, 95 L.Ed. 483.
In the light of those findings, we hold that the ruling applied in Travelers Ins. Co. v. Donovan, supra, is controlling here.
For these reasons the order of the district court from which this appeal was taken is affirmed.
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_treat
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
CANADAY v. GUITTEAU, Collector of Internal Revenue.
Nos. 7058, 7050.
Circuit Court of Appeals, Sixth Circuit.
Nov. 13, 1936.
George W. Ritter, of Toledo, Ohio, for appellant.
William B. Waldo, of Washington, D. C. (Frank J. Wideman, J. Louis Monarch, and J. Leonard Lyons, all of Washington, D. C., Emerich B. Freed, of Cleveland, Ohio, Gerald B. Openlander, of Toledo, Ohio, and William B. Waldo, of Washington, D. C., on the brief), for appellee.
Before HICKS and SIMONS, Circuit Judges, and FORD, District Judge.
FORD, District Judge.
This appeal is from a judgment dismissing appellant’s petition by which he sought to recover certain federal income taxes paid for the years 1927, 1928, and 1929, on account of deficiency assessments by which certain premiums on appellant’s life insurance policies paid during those years by the United States Advertising Corporation, of which he was president and a large stockholder, were treated as income to him and so taxed.
Prior to July 11, 1927, upon his own application, appellant procured to be issued- certain insurance policies upon his life, upon which the corporation paid the premiums from the beginning.
On July 11, 1927, the appellant and the corporation entered into a written agreement with designated trustees, under the terms'of which all of the policies upon the life of appellant were placed in trust, and the corporation agreed and obligated itself to pay the annual premiums on some of them. By the terms of the trust thereby created, the proceeds, to be derived from the appellant’s life insurance policies, are first to be paid to Ward M. Canaday, Inc. (a corporation which holds all the common stock of United States Advertising Corporation and in which the appellant is largely interested through stock ownership), according to a schedule providing increasing amounts, apparently corresponding to the increase of premium payments, as the years pass. The remaining proceeds are to be held for the use and benefit of the appellant’s wife and daughter during their respective lives; then to the issue of the daughter, if any, and, if none, to the brothers of the appellant, with the provision that, under certain remote contingencies, the trust is to be administered for certain educational purposes.
However, the absolute power and right of the appellant to impose his will upon the use of the trust property is preserved by an express provision of the agreement reserving to him the right to change the beneficiaries at his pleasure and the unlimited right to terminate the agreement and abolish the trust, thereby created, at any time he may choose to do so.
None of the reserved rights were exercised by the appellant during the years here in question.
The United States Advertising Corporation paid the premiums, as agreed, during the years 1927, 1928, and 1929, and in filing its income tax returns for those years it claimed and was allowed to deduct its payments as ordinary and necessary business expenses. These premium payments are the subject of this litigation.
It is the contention of appellant that, under the facts above set out, he had no property rights in the policies referred to during the years in question and that, since he failed to exercise any of the rights reserved to him thereunder, he received nothing of value as the result of the investment of capital, labor, or a combination of both; that he received no benefit under the insurance policies; that there was no gain or profit to him, and, hence, the premiums are not taxable to him as income within the meaning of the Revenue Acts of 1926 and 1928 (44 Stat. 9, and 45 Stat. 791), which governed the imposition of federal taxes upon the income of individuals during those years.
In the case of Burnet v. Wells, 289 U.S. 670, 679, 680, 53 S.Ct. 761, 764, 77 L.Ed. 439, it is said: “A policy of life insurance is a contract susceptible of ownership like any other chose in action. * * * One who takes out a policy on his own life, after application in his own name accepted by the company, becomes in so doing a party to a contract, though the benefits of the insurance are to accrue to some one else. * * * The rights and interests thereby generated do not inhere solely in those who are to receive the proceeds. They inhere also in the insured who in co-operation with the insurer has brought the contract into being. * * * "The contracts remain his, or his at least in part, though the fruits when they are gathered are to go to some one else.”
In the case of Douglas v. Willcuts, 296 U.S. 1, 9, 56 S.Ct. 59, 62, 80 L.Ed. 3, 101 A.L.R. 391, the court said: “We have held that income was received by a taxpayer, when, pursuant to a contract, a debt or other obligation was discharged by another for his benefit. The transaction was regarded as being the same in substance as if the money had been paid to the taxpayer and he had transmitted it to his creditor. Old Colony Trust Co. v. Commissioner, 279 U.S. 716, 49 S.Ct. 499, 73 L.Ed. 918; United States v. Boston & Maine Railroad, 279 U.S. 732, 49 S.Ct. 505, 73 L.Ed. 929. See, also, United States v. Mahoning Coal R. Co. (C.C. A.) 51 F.(2d) 208. The creation of a trust by the taxpayer as the channel for the application of the income to the discharge of his obligation leaves the nature of the transaction unaltered.”
Nothing appears in the record to show that the United States Advertising Corporation received or expected to receive-any benefits from the insurance policies which its payments preserved and kept alive. In making the payments for the years in question, the corporation simply fulfilled its contractual obligation entered into on July 11, 1927. It charged the expenditures so made to ordinary business expenses. Clearly, the fulfillment of its contractual obligation was not a gift. Nor do the circumstances here disclosed bear any analogy to those cases in which the employer takes out group insurance for the benefit of his employees, regarding such an investment as beneficial to-himself in the way of increased efficiency arising from the consciousness of security and contentment thereby created in the minds of his employees.
The judgment of the District Court, holding that the premiums paid were in the nature of compensation to the appellant for his services and constituted income properly taxable to him, is fully supported by the facts disclosed in the record. Yuengling v. Commissioner C.A.) 69 F.(2d) 971.
Judgment affirmed.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
sc_issuearea
|
J
|
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.
TRANSCONTINENTAL & WESTERN AIR, INC. v. KOPPAL.
No. 509.
Argued April 8-9, 1953.
Decided June 1, 1953.
Horace G. Hitchcock argued the cause for petitioner. With him on the brief were Gerald B. Brophy, Ruby D. Garrett, Harold L. Warner, Jr. and Francis E. Koch.
Fred J. Freel and Ray D. Jones, Jr. argued the cause for respondent. With them on the brief was John R. Baty.
Mr. Justice Burton
delivered the opinion of the Court.
This case presents two questions: (1) whether a discharged employee of a carrier that is subject to the Railway Labor Act is precluded by that Act from resorting to a state-recognized cause of action for wrongful discharge and, if not, (2) whether, in such action, he must show that he has exhausted his administrative remedies, under his contract of employment. For the reasons hereafter stated, our answer to the first question is no and to the second, yes,, provided the applicable state law so requires. After stating the case, we shall discuss the second question first.
Respondent Koppal is a citizen of Kansas who, in 1949, was employed as a master mechanic in Kansas City, Missouri, by petitioner, Transcontinental & Western Air, Inc., a Delaware corporation. At all times material to this case, petitioner has been a carrier by air, engaged in interstate commerce and subject to Title II of the Railway Labor Act. The terms of respondent’s employment contract were stated in a written agreement between petitioner and the International Association of Machinists. That association was a union which, for collective-bargaining purposes, represented respondent and the other mechanics in the employ of petitioner, although respondent was not a member of the union.
November 8, 1949, respondent reported to his employer by telephone that he was not well and would not be able to work that day. Before noon, a representative from petitioner’s Industrial Relations Department made an unexpected call at respondent’s home. He found respondent there with two of petitioner’s employees, one of whom also had taken sick leave. While the testimony is conflicting, there is substantial evidence to support a conclusion that respondent was not sufficiently ill to justify his staying at home and that, by prearrangement, he met there with two other employees while preparing to take an examination to qualify as a flight engineer. On respondent’s return to work-the next day, he was suspended from employment on a charge of abuse of the sick-leave provisions of his contract and notified that a hearing would be held on that charge November 11, pursuant to the grievance procedure in his contract. He attended the hearing, which was held before a representative of petitioner other than the one bringing the complaint. At its conclusion, the hearing officer stated that there had been a severe abuse of the sick-pay policy and that respondent would be discharged. In view of respondent’s past favorable record, the hearing officer asked him whether he would prefer to resign and advised him that he could appeal even if he resigned.
Respondent resigned, stating that he did so “under protest.” He took no appeal under his employment contract but, June 30, 1950, instituted the present proceeding in the United States District Court for the Western District of Missouri, claiming diversity of citizenship and seeking $7,500 compensatory and $15,000 punitive damages.
During the trial, which was before a jury, petitioner (then defendant) moved for a directed verdict in its favor and made a similar motion at the close of evidence. Both motions were denied and the jury returned a verdict of $7,500 for respondent. The court set aside the verdict and dismissed the complaint on the ground that respondent had failed to appeal the original decision of the hearing officer and had otherwise failed to exhaust the remedies prescribed in his employment contract. The Court of Appeals, with one judge dissenting, reversed that judgment and remanded the case for further proceedings. 199 F. 2d 117. Because of differing opinions expressed as to the effect of our decisions in Moore v. Illinois Central R. Co., 312 U. S. 630, and Slocum v. Delaware, L. & W. R. Co., 339 U. S. 239, and due to the importance of the case in relation to the Railway Labor Act, we granted certiorari. 344 U. S. 933.
The jurisdiction of the District Court rested upon diversity of citizenship and an adequate amount in controversy. The complaint sought judgment for damages resulting from the alleged unlawful discharge of respondent in violation of a contract of employment made in Missouri, to be performed in Missouri and agreed by the parties to be a “Missouri contract.” Accordingly, if the Railway Labor Act were not involved, there would be no question but that the substantive law of Missouri should determine the requirements of the cause of action, the interpretation of the contract and the measure of damages to be applied. Erie R. Co. v. Tompkins, 304 U. S. 64; Klaxon Co. v. Stentor Electric Mfg. Co., 313 U. S. 487.
No decision of the Supreme Court of Missouri has been cited on the point but the law of Missouri has been shown, by the following cases, to be that an employee must exhaust the administrative remedies under his contract of employment in order to sustain his cause of action in such a case.
The United States Court of Appeals for the Eighth Circuit, in 1934, affirmed a decision' of the United States District Court for the Eastern District of Missouri to that effect. Harrison v. Pullman Co., 68 F. 2d 826. That was a diversity case, removed from a Missouri state court, in which a discharged porter sued his employer, the Pullman Company, for damages for his alleged unlawful discharge in November, 1926. The terms of his employment were stated in a printed agreement which contained a complete code for the adjustment of such disputes. The code called for an initial appeal by the employee to a district official of the company, a subsequent appeal to the highest local officer of the company designated to handle such matters, then an appeal to the Zone General Committee and finally to the Bureau of Industrial Relations. The porter made no substantial attempt to follow this procedure beyond the district official and none whatever to reach the Zone General Committee. Instead, about five years later, he brought suit and, in that litigation, the United States Court of Appeals, in affirming a directed verdict for the employer, said:
“Appellant in terms sues because of an alleged breach of this contract, and, to prevail, he must show that he has brought himself within its terms and has been unable to secure a satisfactory adjustment by the means therein expressly provided. This he has failed to do, and for this reason he is unable to present his case in court as a justiciable controversy.” Id., at 827.
Similarly, in 1936, the St. Louis Court of Appeals, Missouri, in Reed v. St. Louis S. W. R. Co., 95 S. W. 2d 887 (not published in State Reports), took a like position. There a discharged conductor sued his employer, the St. Louis Southwestern Railroad Company, for damages for his alleged unlawful discharge in 1928. The terms of his employment were stated in a written contract between the Order of Railway Conductors and the railroad. This prescribed a complete code for the hearing and review of discharges. The conductor was charged with intoxication and attended a prescribed hearing, which was held on that charge, before an assistant superintendent of the company. This resulted in the conductor’s discharge but he resorted to none of the administrative appeals prescribed in the code. Instead, he sued his employer in a state court and won a verdict and judgment for damages due to his discharge. The St. Louis Court of Appeals reversed that judgment because the trial court had failed to sustain the employer’s demurrer which was based on the ground that the conductor had failed to exhaust the remedies prescribed in his contract.
Respondent’s contract, in the instant case, consisted simply of his employment by petitioner pursuant to the terms of a written agreement between petitioner and the mechanics and related employees in its service, as represented by the International Association of Machinists. That agreement was entered into “in accordance with the provisions of Title II of the Railway Labor Act, as amended . . . It contained detailed provisions as to grievance procedure and sick leave. It included provisions that no employee in respondent’s status shall be discharged—
“without a fair hearing before a designated representative of the Company other than the one bringing complaint against the employee. ... At a reasonable time prior to the hearing, such employee and his duly authorized representative will be apprised, in writing, of the precise charge and given a reasonable opportunity to secure the presence of necessary witnesses. ... A written decision will be issued within five (5) work days after the close of such hearing. If the decision is not satisfactory, then appeal may be made in accordance with the procedure prescribed in Step 3.”
Step 3 provided for an appeal to the chief operating officer of the company. Notice of intent to appeal must be in writing and made within ten work days after the above-mentioned decision which is part of Step 2. If the decision in Step 3 is not satisfactory to the union, the matter then may be referred by the system general chairman, acting for the union, to the system board of adjustment or, by mutual agreement, to arbitration. This procedure is comparable to that described in the Railway Labor Act, which provides that disputes between an employee and a carrier “shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes,” then by appropriate adjustment boards and finally by the National Air Transport Adjustment Board. 49 Stat. 1189-1190, 45 U. S. C. §§ 184, 185.
Under the law of Missouri, as shown above, respondent was required to show exhaustion of administrative remedies under his employment contract in order to sustain his cause of action. As he did not do so, the District Court’s dismissal of his complaint was justified, unless the fact that petitioner was a carrier subject to the Railway Labor Act or the fact that the employment contract was drafted pursuant to that Act should make a difference.
The important point is that while the employment contract conforms to the policy of the Railway Labor Act and the Act provides a procedure for handling grievances so as to avoid litigation and interruptions of service, the Act does not deprive an employee of his right to sue his employer for an unlawful discharge if the employee chooses to do so.
“[W]e find nothing in that [Railway Labor] Act which purports to take away from the courts the jurisdiction to determine a controversy over a wrongful discharge or to make an administrative finding a prerequisite to filing a suit in court. . . . The District Court and the Circuit Court of Appeals properly decided that petitioner was not required by the Railway Labor Act to seek adjustment of his controversy with the railroad as a prerequisite to suit for wrongful discharge.” Moore v. Illinois Central R. Co., 312 U. S. 630, 634, 636.
We amplified the foregoing statement in Slocum v. Delaware, L. & W. R. Co., 339 U. S. 239, 244, as follows:
“Moore [in 312 U. S. 630] was discharged by the railroad. He could have challenged the validity of his discharge before the Board, seeking reinstatement and back pay. Instead he chose to accept the railroad’s action in discharging him as final, thereby ceasing to be an employee, and brought suit claiming damages for breach of contract. As we there held, the Railway Labor Act does not bar courts from adjudicating such cases. A common-law or statutory action for wrongful discharge differs from any remedy which the Board has power to provide, and does not involve questions of future relations between the railroad and its other employees. If a court in handling such a case must consider some provision of a collective-bargaining agreement, its interpretation would of course have no binding effect on future interpretations by the Board.”
The result is that, whereas, under the Railway Labor Act, the Adjustment Board has exclusive jurisdiction to adjust grievances and jurisdictional disputes of the type involved in the Slocum case, that Board does not have like exclusive jurisdiction over the claim of an employee that he has been unlawfully discharged. Such employee may proceed either in accordance with the administrative procedures prescribed in his employment contract or he may resort to his action at law for alleged unlawful discharge if the state courts recognize such a claim. Where the applicable law permits his recovery of damages without showing his prior exhaustion of his administrative remedies, he may so recover, as he did in the Moore litigation, supra, under Mississippi law.
On the other hand, if the applicable local law, as in Missouri, requires an employee to exhaust his administrative remedies under his employment contract in order to sustain his cause of action, he must show that he has done so. Here respondent was employed by a carrier, subject to Title II of the Railway Labor Act, and his employment contract contained many administrative steps for his relief, all of which were consistent with that Act. Accordingly, while he was free to resort to the courts for relief, he was there required by the law of Missouri to show that he had exhausted the very administrative procedure contemplated by the Railway Labor Act. In the instant case, he was not able to do so and his complaint was properly dismissed.
The judgment of the Court of Appeals, therefore, is reversed. The judgment of the District Court is affirmed and the cause is remanded to it.
Reversed and remanded.
Mr. Justice Douglas dissents.
Mr. Justice Reed took no part in the consideration or decision of this case.
49 Stat. 1189 et seq., 45 U. S. C. §§ 181-188.
The grant was limited to questions 1 and 2 presented by the petition for the writ, viz.:
“1. Whether in a diversity action for wrongful discharge by an employee against a carrier subject to the provisions of the Railway Labor Act, the Act precludes the application by the District Court of state law, otherwise controlling, governing the right to bring the action.
“2. Whether the decisions of this Court in Moore v. Illinois Central R. Co., 312 U. S. 630, and Slocum v. Delaware, L. & W. R. Co., 339 U. S. 239, bar the application of state law requiring an employee to attempt to adjust his dispute with his employer before he may seek redress in state courts for alleged breach of a collective bargaining agreement made pursuant to the Railway Labor Act.”
“. . . This assignment of error is based upon the rule that where a contract of employment provides, as in the instant case, that a discharged employee may seek redress by appealing to certain designated officers, boards, or tribunals, such an employee is required to pursue and exhaust his contract remedy and cannot properly complain to a court for redress until he has exhausted the remedies accorded him by his contract. The point is well taken.” Id., at 888-889.
“. . . It is well settled that, where contracting parties either agree or are required by law to resort to a designated tribunal for the adjustment of controversies, they must exhaust such remedy before resorting to the courts for redress.” Glass v. Hoblitzelle, 83 S. W. 2d 796, 802 (Tex. Civ. App.). See also, Bell v. Western R. Co., 228 Ala. 328, 153 So. 434. This quotation and citation are relied on in the Reed case, at 889.
Moore received a judgment for 14,183.20, as damages for his wrongful discharge, without establishing his exhaustion of his administrative remedies under his employment contract. For related proceedings, see Moore v. Yazoo & M. V. R. Co., 176 Miss. 65, 166 So. 395; Moore v. Illinois Central R. Co., 180 Miss. 276, 176 So. 593; 24 F. Supp. 731; 112 F. 2d 959; 136 F. 2d 412. See also, Texas & N. O. R. Co. v. McCombs, 143 Tex. 257, 183 S. W. 2d 716.
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_authoritydecision
|
B
|
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.
ZABLOCKI, MILWAUKEE COUNTY CLERK v. REDHAIL
No. 76-879.
Argued October 4, 1977
Decided January 18, 1978
Ward L. Johnson, Jr., Assistant Attorney General of Wis:-consin, argued the cause for appellant. With him on the briefs were Bronson C. La Follette, Attorney General, Robert P. Russell, and John R. Devitt.
Robert H. Blondis argued the cause and filed briefs for appellee.
Terry W. Rose filed a brief for the Wisconsin Civil Liberties Union Foundation, Inc., as amicus curiae urging affirmance.
Mr. Justice Marshall
delivered the opinion of the Court.
At issue in this case is the constitutionality of a Wisconsin statute, Wis. Stat. §§245.10 (1), (4), (5) (1973), which provides that members of a certain class of Wisconsin residents may not marry, within the State or elsewhere, without first obtaining a court order granting permission to marry. The class is defined by the statute to include any “Wisconsin resident having minor issue not in his custody and which he is under obligation to support by any court order or judgment.” The statute specifies that court permission cannot be granted unless the marriage applicant submits proof of compliance with the support obligation and, in addition, - demonstrates that the children covered by the support order “are not then and are not likely thereafter to become public charges.” No marriage license may lawfully be issued in Wisconsin to a person covered by the statute, except upon court order; any marriage entered into without compliance with § 245.10 is declared void; and persons acquiring marriage licenses in violation of the section are subject to criminal penalties.
After being denied a marriage license because of his failure to comply with § 245.10, appellee brought this class action under 42 U. S. C. § 1983, challenging the statute as violative of the Equal Protection and Due Process Clauses of the Fourteenth Amendment and seeking declaratory and injunctive relief. The United States District Court for the Eastern District of Wisconsin held the statute unconstitutional under the Equal Protection Clause and enjoined its enforcement. 418 F. Supp. 1061 (1976). We noted probable jurisdiction, 429 U. S. 1089 (1977), and we now affirm.
I
Appellee Redhail is a Wisconsin resident who, under the terms of § 245.10, is unable to enter into a lawful marriage in Wisconsin or elsewhere so long as he maintains his Wisconsin residency. The facts, according to the stipulation filed by the parties in the District Court, are as follows. In January 1972, when appellee was a minor and a high school student, a paternity action was instituted against him in Milwaukee County Court, alleging that he was the father of a baby girl born out of wedlock on July 5, 1971. After lie appeared and admitted that he was the child's father, the court entered an order on May 12, 1972, adjudging appellee the father and ordering him to pay $109 per month as support for the child until she reached 18 years of age. From May 1972 until August 1974, appellee was unemployed and indigent, and consequently was unable to make any support payments.
On September 27, 1974, appellee filed an application for a marriage license with appellant Zablocki, the County Clerk of Milwaukee County, and a few days later the application was denied on the sole ground that appellee had not obtained a court order granting him permission to marry, as required by § 245.10. Although appellee did not petition a state court thereafter, it is stipulated that he would not have been able to satisfy either of the statutory prerequisites for an order granting permission to marry. First, he had not satisfied his support obligations to his illegitimate child, and as of December 1974 there was an arrearage in excess of $3,700. Second, the child had been a public charge since her birth, receiving benefits under the Aid to Families with Dependent Children program. It is stipulated that the child's benefit payments were such that she would have been a public charge even if appellee had been current in his support payments.
On December 24, 1974, appellee filed his complaint in the District Court, on behalf of himself and the class of all Wisconsin residents who had been refused a marriage license pursuant to § 245.10 (1) by one of the county clerks in Wisconsin. Zablocki was named as the defendant, individually and as representative of a class consisting of all county clerks in the State. The complaint alleged, among other things, that appellee and the woman he desired to marry were expecting a child in March 1975 and wished to be lawfully married before that time. The statute was attacked on the grounds that it deprived appellee, and the class he sought to represent, of equal protection and due process rights secured by the First, Fifth, Ninth, and Fourteenth Amendments to the United States Constitution.
A three-judge court was convened pursuant to 28 U. S. C. §§ 2281, 2284. Appellee moved for certification of the plaintiff and defendant classes named in his complaint, and by order dated February 20, 1975, the plaintiff class was certified under Fed. Rule Civ. Proc. 23 (b)(2). After the parties filed the stipulation of facts, and briefs on the merits, oral argument was heard in the District Court on June 23, 1975, with a representative from the Wisconsin Attorney General’s office participating in addition to counsel for the parties.
The three-judge court handed down a unanimous decision on August 31, 1976. The court ruled, first, that it was not required to abstain from decision under the principles set forth in Huffman v. Pursue, Ltd., 420 U. S. 592 (1975), and Younger v. Harris, 401 U. S. 37 (1971), since there was no pending state-court proceeding that could be frustrated by the declaratory and injunctive relief requested: Second, the court held that the class of all county clerks in Wisconsin was a proper defendant class under Rules 23(a) and (b)(2), and that neither Rule 23 nor due process required prejudgment notice to the members of the plaintiff or the defendant class.
On the merits, the three-judge panel analyzed the challenged statute under the Equal Protection Clause and concluded that “strict scrutiny” was required because the classification created by the statute infringed upon a fundamental right, the right to marry. The court then proceeded to evaluate the interests advanced by the State to justify the statute, and, finding that the classification was not necessary for the achievement of those interests, the court held the statute invalid and enjoined the county clerks from enforcing it.
Appellant brought this direct appeal pursuant to 28 U. S. C. § 1253, claiming that the three-judge court erred in finding §§ 245.10 (1), (4), (5) invalid under the Equal Protection Clause. Appellee defends the lower court’s equal protection holding and, in the alternative, urges affirmance of the District Court’s judgment on the ground that the statute does not satisfy the requirements of substantive due process. We agree with the District Court that the statute violates the Equal Protection Clause.
II
In evaluating §§ 245.10 (1), (4), (5) under the Equal Protection Clause, “we must first determine what burden of justification the classification created thereby must meet, by looking to the nature of the classification and the individual interests affected.” Memorial Hospital v. Maricopa County, 415 U. S. 250, 253 (1974). Since our past decisions make clear that the right to marry is of fundamental importance, and since the classification at issue here significantly interferes with the exercise of that right, we believe that “critical examination” of the state interests advanced in support of the classification is required. Massachusetts Board of Retirement v. Murgia, 427 U. S. 307, 312, 314 (1976); see, e. g., San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 17 (1973).
The leading decision of this Court on the right to marry is Loving v. Virginia, 388 U. S. 1 (1967). In that case, an interracial couple who had been convicted of violating Virginia’s miscegenation laws challenged the statutory scheme on both equal protection and due process grounds. The Court’s opinion could have rested solely on the ground that the statutes discriminated on the basis of race in violation of the Equal Protection Clause'. Id., at 11-12. But the Court went on to hold that the laws arbitrarily deprived the couple of a fundamental liberty protected by the Due Process Clause, the freedom to marry. The Court’s language on the latter point bears repeating:
“The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.
“Marriage is one of the 'basic civil rights of man,’ fundamental to our very existence and survival.” Id., at 12, quoting Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 541 (1942).
Although Loving arose in the context of racial discrimination, prior and subsequent decisions of this Court confirm that the right to marry is of fundamental importance for all individuals. Long ago, in Maynard v. Hill, 125 U. S. 190 (1888), the Court characterized marriage as “the most important relation in life,” id., at 205, and as “the foundation of the family and of society, without which there would be neither civilization nor progress,” id., at 211. In Meyer v. Nebraska, 262 U. S. 390 (1923), the Court recognized that the right “to marry, establish a home and bring up children” is a central part of the liberty protected by the Due Process Clause, id., at 399, and in Skinner v. Oklahoma ex rel. Williamson, supra, marriage was described as “fundamental to the very existence and survival of the race,” 316 U. S., at 541.
More recent decisions have established that the right to marry is part of the fundamental “right of privacy” implicit in. the Fourteenth Amendment’s Due Process Clause. In Griswold v. Connecticut, 381 U. S. 479 (1965), the Court observed:
“We deal with a right’ of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.” Id., at 486.
See also id., at 495 (Goldberg, J., concurring); id., at 502-503 (White, J., concurring in judgment).
Cases subsequent to Griswold and Loving have routinely categorized the decision to marry as among the personal decisions protected by the right of privacy. See generally Whalen v. Roe, 429 U. S. 589, 598-600, and nn. 23-26 (1977). For example, last Term in Carey v. Population Services International, 431 U. S. 678 (1977), we declared:
“While the outer limits of [the right of personal privacy] have not been marked by the Court, it is clear that among the decisions that an individual may make without unjustified government interference are personal decisions'relating to marriage, Loving v. Virginia, 388 U. S. 1, 12 (1967); procreation, Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 536, 541-542 (1942); contraception, Eisenstadt v. Baird, 405 U. S., at 453-454; id., at 460, 463-465 (White, J., concurring in result); family relationships, Prince v. Massachusetts, 321 U. S. 158, 166 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925); Meyer v. Nebraska, [262 U. S. 390, 399 (1923)].’ ” Id., at 684-685, quoting Roe v. Wade, 410 U. S. 113, 152-153 (1973).
See also Cleveland Board of Education v. LaFleur, 414 U. S. 632, 639-640 (1974) (“This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment”); Smith v. Organization of Foster Families, 431 U. S. 816, 842-844 (1977); Moore v. East Cleveland, 431 U. S. 494, 499 (1977); Paul v. Davis, 424 U. S. 693, 713 (1976).
It is not surprising that the decision to marry has been placed on the same level of importance as decisions relating to procreation, childbirth, child rearing, and family relationships. As the facts of this case illustrate, it would make little sense to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society. The woman whom appellee desired to marry had a fundamental right to seek an abortion of their expected child, see Roe v. Wade, supra, or to bring the child into life to suffer the myriad social, if not economic, disabilities that the status of illegitimacy brings, see Trimble v. Gordon, 430 U. S. 762, 768-770, and n. 13 (1977); Weber v. Aetna Casualty & Surety Co., 406 U. S. 164, 175-176 (1972). Surely, a decision to marry and raise the child in a traditional family setting must receive equivalent protection. And, if appellee’s right to procreate means anything at all, it must imply some right to enter the only relationship in which the State of Wisconsin allows sexual relations legally to take place.
By reaffirming the fundamental character of the right to marry, we do not mean to suggest that every state regulation which relates in any way to the incidents of or prerequisites for marriage must be subjected to rigorous scrutiny. To the contrary, reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed. See Califano v. Jobst, ante, p. 47; n. 12, infra. The statutory classification at issue here, however, clearly does interfere directly and substantially with the right to marry.
Under the challenged statute, no Wisconsin resident in the affected class may marry in Wisconsin or elsewhere without a court order, and marriages contracted in violation of the statute are both void and punishable as criminal offenses. Some of those in the affected class, like appellee, will never be able to obtain the necessary court order, because they either lack the financial means to meet their support obligations or cannot prove that their children will not become public-charges. These persons are absolutely prevented from getting married. Many others, able in theory to satisfy the statute’s requirements, will be sufficiently burdened by having to do so that they will in effect be coerced into forgoing their right to marry. And even those who can be persuaded to meet the statute’s requirements suffer a serious intrusion into their freedom of choice in an area in which we have held such freedom to be fundamental.
Ill
When a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests. See, e. g., Carey v. Population Services International, 431 U. S., at 686; Memorial Hospital v. Maricopa County, 415 U. S., at 262-263; San Antonio Independent School Dist. v. Rodriguez, 411 U. S., at 16-17; Bullock v. Carter, 405 U. S. 134, 144 (1972). Appellant asserts that two interests are served by the challenged statute: the permission-to-marry proceeding furnishes an opportunity to counsel the applicant as to the necessity of fulfilling his prior support obligations; and the welfare of the out-of-custody children is protected. We may accept for present purposes that these are legitimate and substantial interests, but, since the means selected by the State for achieving these interests unnecessarily impinge on the right to marry, the statute cannot be sustained.
There is evidence that the challenged statute, as originally introduced in the Wisconsin Legislature, was intended merely to establish a mechanism whereby persons with support obligations to children from prior marriages could be counseled before they entered into new marital relationships and incurred further support obligations. Court permission to marry was to be required, but apparently permission was automatically to be granted after counseling was completed. The statute actually enacted, however, does not expressly require or provide for any counseling whatsoever, nor for any automatic granting of permission to marry by the court, and thus it can hardly be justified as a means for ensuring counseling of the persons within its coverage. Even assuming that counseling-does take place — a fact as to which there is no evidence in the record — this interest obviously cannot support the withholding of court permission to marry once counseling is completed.
With regard to safeguarding the welfare of the out-of-custody children, appellant’s brief does not make clear the connection between the State’s interest and the statute’s requirements. At.argument, appellant’s counsel suggested that, since permission to marry cannot be granted unless the applicant shows that he has satisfied his court-determined support obligations to the prior children and that those children will not become public charges, the statute provides incentive for the applicant to make support payments to his children. Tr. of Oral Arg. 17-20. This “collection device” rationale cannot justify the statute’s broad infringement on the right to marry.
First, with respect to individuals who are unable to meet the.statutory requirements, the statute merely prevents the applicant from getting married, without delivering any money at all into the hands of the applicant’s prior children. More importantly, regardless of the applicant’s ability or willingness to meet the statutory requirements, the State already has numerous other means for exacting compliance with support obligations, means that are at least as effective as the instant statute’s and yet do not impinge upon the right to marry. Under Wisconsin law, whether the children are from a prior marriage or were born out of wedlock, court-determined support obligations may be enforced directly via wage assignments, civil contempt proceedings, and criminal penalties. And, if the State believes that parents of children out of their custody should be responsible for ensuring that those children do not become public charges, this interest can be achieved by adjusting the criteria used for determining the amounts to be paid under their support orders.
There is also some suggestion that § 245.10 protects the ability of marriage applicants to meet support obligations to prior children by preventing the applicants from incurring new support obligations. But the challenged provisions of § 245.10 are grossly underinclusive with respect to this purpose, since they do not limit in any way new financial commitments by the applicant other than those arising out of the contemplated marriage. The statutory classification is substantially over-inclusive as well: Given the possibility that the new.spouse will actually better the applicant’s financial situation, by contributing income from a job or otherwise, the statute in. many cases may prevent affected individuals from improving their ability to satisfy their prior support obligations. And, although it is true that the applicant will incur support obligations to any children born during the contemplated marriage, preventing the marriage may only result in the children being born out of wedlock, as in fact occurred in appellee’s case. Since the support obligation is the same whether the child is born in or out of wedlock, the net result of preventing the marriage is simply more illegitimate children.
The statutory classification created by §§245.10(1), (4), (5) thus cannot be justified by the interests advanced in support of it. The judgment of the District Court is, accordingly,
Affirmed.
Wisconsin Stat. § 245.10 provides in pertinent part:
“(1) No Wisconsin resident having minor issue not in his custody and which he is under obligation to support by any court order or judgment, may marry in this state or elsewhere, without the order of either the court of this state which granted such judgment or support order, or the court having divorce jurisdiction in the county of this state where such minor issue resides or where the marriage license application is made. No marriage license shall be issued to any such person except upon court order. The court, within 5 days after such permission is sought by verified petition in a special proceeding, shall direct a court hearing to be held in the matter to allow said person to submit proof of his compliance with such prior court obligation. No such order shall be granted, or hearing held, unless both parties to the intended marriage appear, and unless the person, agency, institution, welfare department or other entity having the legal or actual custody of such minor issue is given notice of such proceeding by personal service of a copy of the petition at least 5 days prior to the hearing, except that such appearance or notice may be waived by the court upon good cause shown, and, if the minor issue were of a prior marriage, unless a 5-day notice thereof is given to the family court com-' missioner of the county where such permission is sought, who shall attend such hearing, and to the family court commissioner of the court which granted such divorce judgment. If the divorce judgment was granted in a foreign court, service shall be made on the clerk of that court. Upon the hearing, if said person submits such proof and makes a showing that such children are not then and are not likely thereafter to become public charges, the court shall grant such order, a copy of which shall be filed in any prior proceeding... or divorce action of such person in this state affected thereby; otherwise permission for a license shall be withheld until such proof is submitted and such showing is made, but any court order withholding such permission is an appealable order. Any hearing under this section may be waived by the court if the court is satisfied from an examination of the court records in the case and the family support records in the office of the clerk of court as well as from disclosure by said person of his financial resources that the latter has complied with prior court orders or judgments affecting his minor children, and also has shown that such children are not then and are not likely thereafter to become public charges. No county clerk in this state shall issue such license to any person required to comply with this section unless a certified copy of a court order permitting such marriage is filed with said county clerk.
“ (4) If a Wisconsin resident having such support obligations of a minor, as stated in sub. (1), wishes to marry in another state, he must, prior to such marriage, obtain permission of the court under sub. (1), except that in a hearing ordered or held by the court, the other party to the proposed marriage, if domiciled in another state, need not be present at the hearing. If such other party is not present at the hearing, the judge shall within 5 days send a copy of the order of permission to marry, stating the obligations of support, to such party not present.
“(5) This section shall have extraterritorial effect outside the state; and s. 245.04 (1) and (2) [providing that out-of-state marriages to circumvent Wisconsin law are void] are applicable hereto. Any marriage contracted without compliance with this section, where such compliance is required, shall be void, whether entered into in this state or elsewhere.”
The criminal penalties for violation of § 245.10 are set forth in Wis. Stat. §245.30 (1) (f) (1973). See State v. Mueller, 44 Wis. 2d 387, 171 N. W. 2d 414 (1969) (upholding criminal prosecution for failure to comply with §245.10).
The record does not indicate whether appellee obtained employment subsequent to August 1974.
Under Wisconsin law, “[m]arriage may be validly solemnized and contracted [within the] state only after a license has been issued therefor,” Wis. Stat. § 245.16 (1973), and (with an exception not relevant here) the license must be obtained from “the county clerk of the county in which one of the parties has resided for at least 30 days immediately prior to making application therefor,” § 245.05.
The order defined the plaintiff class as follows:
“All Wisconsin residents who have minor issue not in their custody and who are under an obligation to support such minor issue by any court order or judgment and to whom the county clerk has refused to issue a marriage license without a court order, pursuant to §245.10 (1), Wis. Stats. (1971).”
The order also established a briefing schedule on appellee’s motion for certification of a defendant class. Although appellee thereafter filed a brief in support of the motion, appellant never submitted a brief in opposition.
418 F. Supp. 1061, 1064-1065. The possibility that abstention might be required under our decision in Huffman v. Pursue, Ltd., was raised by the District Court, sua sponte, at argument before that court. Appellee subsequently filed a memorandum contending that abstention was not required; appellant did not submit a response. Appellant now argues, on this appeal/ that the District Court failed to consider the “doctrine of federalism” set forth in Younger and Huffman. According to appellant, proper consideration of this doctrine would have led the District Court to require appellee to bring suit first in the state courts, in order to give those courts the initial opportunity to pass on his constitutional attack against § 245.10. We cannot agree.
First, the District Court was correct in finding Huffman and Younger inapplicable, since there was no pending state-court proceeding in which appellee could have challenged the statute. See Wooley v. Maynard, 430 U. S. 705, 710-711 (1977). Second, there are no ambiguities in the statute for the state courts to resolve, and — absent issues of state law that might affect the posture of the federal constitutional claims — this Court has uniformly held that individuals seeking relief under 42 U. S. C. § 1983 need not present their federal constitutional claims in state court before coming to a federal forum. See, e. g., Wisconsin v. Constantineau, 400 U. S. 433, 437-439 (1971); Zwickler v. Koota, 389 U. S. 241, 245-252 (1967). See also Huffman v. Pursue, Ltd., 420 U. S., at 609-610, n. 21.
Appellant also contends on this appeal, for the first time, that the District Court should have abstained out of “regard for the independence of state governments in carrying out their domestic policy.” Brief for Appellant 16, citing Burford v. Sun Oil Co., 319 U. S. 315, 317-318 (1943). Unlike Burford, however, this case does not involve complex issues of state law, resolution of which would be “disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.” Colorado River Water Conservation Dist. v. United States, 424 U. S. 800, 814-815 (1976). And there is, of course, no doctrine requiring abstention merely because resolution of a federal question may result in the overturning of a state policy.
418 F. Supp., at 1065-1068. Appellant has not appealed the District Court’s finding that the defendant class satisfied the requirements of Rules 23 (a) and (b)(2), the court’s definition of the class to include all county clerks in Wisconsin, or the requirement that appellant send a copy of the judgment to each of the county clerks, and those issues are therefore not before us. Appellant does claim on this appeal that due process required prejudgment notice to the members of the defendant class if the judgment was to be binding on them. As this issue has been framed, however, we cannot perceive appellant’s “personal stake in the outcome,” Baker v. Carr, 369 U. S. 186, 204 (1962), and we therefore hold that appellant lacks standing to raise the claim. Appellant would be bound, regardless of what we concluded as to the judgment’s binding effect on absent members of the defendant class, and appellant has not asserted that he was injured in any way by the maintenance of this suit as a defendant class action. Indeed, appellant never filed a brief in the District Court in opposition to the defendant class, despite being invited to do so, see n. 4, supra, and the notice issue was briefed for the first time on this appeal, after the Wisconsin Attorney General took over as lead counsel for appellant. In these circumstances, the absent class members must be content to assert their due process rights for themselves, through collateral attack or otherwise. See Hansberry v. Lee, 311 U. S. 32 (1940); Advisory Committee Notes on 1966 Amendment to Rule 23, 28 U. S. C. App., p. 7768, citing Restatement of Judgments §86, Comment (h), § 116 (1942). We note, in any event, that in light of our disposition of this case and the recent revision of Wisconsin’s Family Code, see n. 9, infra, the question of binding effect on the absent members may be wholly academic.
418 F. Supp., at 1068-1071. The court found an additional justification for applying strict scrutiny in the fact that the statute discriminates on the basis of wealth, absolutely denying individuals the opportunity to marry if they lack sufficient financial resources to make the showing required by the statute. Id., at 1070, citing San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 20 (1973).
418 F. Supp., at 1071-1073.
Counsel for appellee informed us at oral argument that appellee was married in Illinois some time after argument on the merits in the District Court, but prior to judgment. Tr. of Oral Arg. 23, 30-31. This development in no way moots the issues before us. First, appellee’s individual claim is unaffected, since he is still a Wisconsin resident and the Illinois marriage is consequently void under the provisions of §§245.10 (1), (4), (5). See State v. Mueller, 44 Wis. 2d 387, 171 N. W. 2d 414 (1969) (§245.10 has extraterritorial effect with respect to Wisconsin residents). Second, regardless of the current status of appellee’s individual claim, the dispute over the statute’s constitutionality remains live with respect to members of the class appellee represents, and the Illinois marriage took place well after the class was certified. See Franks v. Bowman Transp, Co., 424 U. S. 747, 752-757 (1976); Sosna v. Iowa, 419 U. S. 393, 397-403 (1975).
After argument in this Court, the Acting Governor of Wisconsin signed into law a comprehensive revision of the State’s marriage laws, effective February 1, 1978. 1977 Wis. Laws, ch. 105, Wis. Legis. Serv. (West 1977). The revision added a new section (§ 245.105) which appears to be a somewhat narrower version of § 245.10. Enactment of this new provision also does not moot our inquiry into the constitutionality of § 245.10. By its terms, the new section “shall be enforced only when the provisions of § 245.10 and utilization of the procedures thereunder are stayed or enjoined by the order of any court.” § 245.105 (8). As we read this somewhat unusual proviso, and as it was explained to us at argument by the representative of the Wisconsin Attorney General, Tr. of Oral Arg. 4^10, the new section is meant only to serve as a stopgap during such time as enforcement of § 245.10 is barred by court order. Were we to vacate the District Court’s injunction on this appeal, § 245.10 would go back into full force and effect; accordingly, the dispute over its validity is quite live. We express no judgment on the constitutionality of the new section.
Further support for the fundamental importance of marriage is found in our decisions dealing with rights of access to courts in civil cases. In Boddie v. Connecticut, 401 U. S. 371 (1971), we wrote that “marriage involves interests of basic importance in our society,” id., at 376, and held that filing fees for divorce actions violated the due process rights of indigents unable to pay the fees. Two years later, in United States v. Kras, 409 U. S. 434 (1973), the Court concluded that filing fees in bankruptcy actions did not deprive indigents of due process or equal protection. Boddie was distinguished on several grounds, including the following:
“The denial of access to the judicial forum in Boddie touched directly... on the marital relationship and on the associational interests that surround the establishment and dissolution of that relationship. On many occasions we have recognized the fundamental importance of these interests under our Constitution. See, for example, Loving v. Virginia... 409 U. S., at 444.
See also id., at 446 (“Bankruptcy is hardly akin to free speech or marriage...[,] rights!.. that the Court has come to regard as fundamental”).
Wisconsin punishes fornication as a criminal offense:
“Whoever has sexual intercourse with a person not his spouse may be fined not more than $200 or imprisoned not more than 6 months or both.” Wis. Stat. §944.15 (1973).
The directness and substantiality of the interference with the freedom to marry distinguish the instant case from Califano v. Jobst, ante, p. 47. In Jobst, we upheld sections of the Social Security Act providing, inter alia, for termination of a dependent child's benefits upon marriage to an individual not entitled to benefits under the Act. As the opinion for the Court expressly noted, the rule terminating benefits upon marriage was not “an attempt to interfere with the individual’s freedom to make a decision as important as marriage.” Ante, at 54. The Social Security provisions placed no direct legal obstacle in the path of persons desiring to get married, and — notwithstanding our Brother Rehnquist’s imaginative recasting of the case, see dissenting opinion, post, at 408 — there was no.evidence that the laws significantly discouraged, let alone made “practically impossible,” any marriages. Indeed, the provisions had not deterred the individual who challenged the statute from getting married, even though, he and his wife were both disabled. See Califano v. Job
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_respondent
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001
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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.
NIJHAWAN v. HOLDER, ATTORNEY GENERAL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 08-495.
Argued April 27, 2009
Decided June 15, 2009
Breyer, J., delivered the opinion for a unanimous Court.
Thomas E. Moseley argued the cause for petitioner. With him on the briefs was Peter C. Salerno.
Curtis E. Gannon argued the cause for respondent. With him on the brief were Solicitor General Kagan, Acting Assistant Attorney. General Hertz, Deputy Solicitor General Kneedler, Donald E. Keener, Jennifer J. Keeney, W. Manning Evans, Holly M. Smith, Andrew C. MacLachlan, Saul Greenstein, and Erica B. Miles.
Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by Jayashri Srikantiah, Cecillia D. Wang, Lucas Guttentag, and Steven R. Shapiro; for the Asian American Justice Center et al. by Vincent A. Eng, Karen K. Narasaki, David A. Kettel, and Donald W. Yoo; for the National Association of Criminal Defense Lawyers by Iris E. Bennett, Michael A. Hoffman, and Joshua L. Dratel; and for Akio Kawashima et al. by Jenny Lin-Alva, Edward O. C. Ord, and Thomas J. Whalen.
Justice Breyer
delivered the opinion of the Court.
Federal immigration law provides that any “alien who is convicted of an aggravated felony at any time after admission is deportable.” 8 U. S. C. § 1227(a)(2)(A)(iii) (emphasis added). A related statute defines “aggravated felony” in terms of a set of listed offenses that includes “an offense that... involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” § 1101(a)(43)(M)(i) (emphasis added). See Appendix A, infra. The question before us is whether the italicized language refers to an element of the fraud or deceit “offense” as set forth in the particular fraud or deceit statute defining the offense of which the alien was previously convicted. If so, then in order to determine whether a prior conviction is for the kind of offense described, the immigration judge must look to the criminal fraud or deceit statute to see whether it contains a monetary threshold of $10,000 or more. See Taylor v. United States, 495 U. S. 575 (1990) (so interpreting the Armed Career Criminal Act). We conclude, however, that the italicized language does not refer to an element of the fraud or deceit crime. Rather it refers to the particular circumstances in which an offender committed a (more broadly defined) fraud or deceit crime on a particular occasion.
I
Petitioner, an alien, immigrated to the United States in 1985. In 2002 he was indicted for conspiring to commit mail fraud, wire fraud, bank fraud, and money laundering. 18 U. S. C. §§371, 1341, 1343, 1344, 1956(h). A jury found him guilty. But because none of these statutes requires a finding of any particular amount of victim loss, the jury made no finding about the amount of the loss. At sentencing petitioner stipulated that the loss exceeded $100 million. The court then imposed a sentence of 41 months in prison and required restitution of $683 million.
In 2005 the Government, claiming that petitioner had been convicted of an “aggravated felony,” sought to remove him from the United States. The Immigration Judge found that petitioner’s conviction was for crimes of fraud and deceit; that the sentencing stipulation and restitution order showed that the victims’ loss exceeded $10,000; and that petitioner’s conviction consequently fell within the immigration statute’s “aggravated felony” definition. See 8 U. S. C. §§ 1101(a)(43)(M)(i), (U) (including within the definition of “aggravated felony” any “attempt or conspiracy to commit” a listed “offense”). The Board of Immigration Appeals agreed. App. to Pet. for Cert. 44a-51a. So did the Third Circuit. 523 F. 3d 387 (2008). The Third Circuit noted that the statutes of conviction were silent as to amounts, but, in its view, the determination of loss amounts for “aggravated felony” purposes “requires an inquiry into the underlying facts of the case.” Id., at 396 (internal quotation marks omitted).
The Courts of Appeals have come to different conclusions as to whether the $10,000 threshold in subparagraph (M)(i) refers to an element of a fraud statute or to the factual circumstances surrounding commission of the crime on a specific occasion. Compare Conteh v. Gonzales, 461 F. 3d 45, 55 (CA1 2006) (fact-based approach); 523 F. 3d 387 (case below) (same); Arguelles-Olivares v. Mukasey, 526 F. 3d 171, 178 (CA5 2008) (same), with Dulal-Whiteway v. United States Dept. of Homeland Security, 501 F. 3d 116, 131 (CA2 2007) (definitional approach); Kawashima v. Mukasey, 530 F. 3d 1111, 1117 (CA9 2008) (same); Obasohan v. United States Atty. Gen., 479 F. 3d 785, 791 (CA11 2007) (same). We granted certiorari to decide the question.
II
The interpretive difficulty before us reflects the linguistic fact that in ordinary speech words such as “crime,” “felony,” “offense,” and the like sometimes refer to a generic crime, say, the crime of fraud or theft in general, and sometimes refer to the specific acts in which an offender engaged on a specific occasion, say, the fraud that the defendant planned and executed last month. See Chambers v. United States, 555 U. S. 122, 125 (2009). The question here, as we have said, is whether the italicized statutory words “offense that involves fraud or deceit in which the loss to the... victims exceeds $10,000” should be interpreted in the first sense (which we shall call “categorical”), i. as referring to a generic crime, or in the second sense (which we shall call “circumstance-specific”), as referring to the specific way in which an offender committed the crime on a specific occasion. If the first, we must look to the statute defining the offense to determine whether it has an appropriate monetary threshold; if the second, we must look to the facts and circumstances underlying an offender’s conviction.
A
The basic argument favoring the first — i. e., the “generic” or “categorical” — interpretation rests upon Taylor, Chambers, and James v. United States, 550 U. S. 192 (2007). Those cases concerned the Armed Career Criminal Act (ACCA), a statute that enhances the sentence imposed upon certain firearm-law offenders who also have three prior convictions for “a violent felony.” 18 U. S. C. § 924(e). See Appendix B, infra. ACCA defines “violent felony” to include, first, felonies with elements that involve the use of physical force against another; second, felonies that amount to “burglary, arson, or extortion” or that involve the use of explosives; and third, felonies that “otherwise involv[e] conduct that presents a serious potential risk of physical injury to another.” § 924(e)(2)(B).
In Taylor and James we held that ACCA’s language read naturally uses the word “felony” to refer to a generic crime as generally committed. Chambers, supra, at 125 (discussing Taylor, supra, at 602); James, supra, at 201-202. The Court noted that such an interpretation of the statute avoids “the practical difficulty of trying to ascertain” in a later proceeding, “perhaps from a paper record” containing only a citation (say, by number) to a statute and a guilty plea, “whether the [offender’s] prior crime... did or did not involve,” say, violence. Chambers, supra, at 125.
Thus in James, referring to Taylor, we made clear that courts must use the “categorical method” to determine whether a conviction for “attempted burglary” was a conviction for a crime that, in ACCA’s language, “involve[d] conduct that presents a serious potential risk of physical injury to another.” § 924(e)(2)(B)(ii). That method required the court to “examine, not the unsuccessful burglary the defendant attempted on a particular occasion, but the generic crime of attempted burglary.” Chambers, supra, at 125 (discussing James, supra, at 204-206).
We also noted that the categorical method is not always easy to apply. That is because sometimes a separately numbered subsection of a criminal statute will refer to several different crimes, each described separately. And it can happen that some of these crimes involve violence while others do not. A single Massachusetts statute section entitled “Breaking and Entering at Night,” for example, criminalizes breaking into a “building, ship, vessel or vehicle.” Mass. Gen. Laws, ch. 266, § 16 (West 2006). In such an instance, we have said, a court must determine whether an offender’s prior conviction was for the violent, rather than the nonviolent, break-ins that this single five-word phrase describes (e. g., breaking into a building rather than into a vessel), by examining “the indictment or information and jury instructions,” Taylor, 495 U. S., at 602, or, if a guilty plea is at issue, by examining the plea agreement, plea colloquy, or “some comparable judicial record” of the factual basis for the plea, Shepard v. United States, 544 U. S. 13, 26 (2005).
Petitioner argues that we should interpret the subsection of the “aggravated felony” statute before us as requiring use of this same “categorical” approach. He says that the statute’s language, read naturally as in Taylor, refers to a generic kind of crime, not a crime as committed on a particular occasion. He adds that here, as in Taylor, such a reading avoids the practical difficulty of determining the nature of prior conduct from what may be a brief paper record, perhaps noting only a statutory section number and a guilty plea; or, if there is a more extensive record, combing through that record for evidence of underlying conduct. Also, the categorical approach, since it covers only criminal statutes with a relevant monetary threshold, not only provides assurance of a finding on the point, but also assures that the defendant had an opportunity to present evidence about the amount of loss.
B
Despite petitioner’s arguments, we conclude that the “fraud and deceit” provision before us calls for a “circumstance-specific,” not a “categorical,” interpretation. The “aggravated felony” statute of which it is a part differs in general from ACCA, the statute at issue in Taylor. And the “fraud and deceit” provision differs specifically from ACCA’s provisions.
1
Consider, first, ACCA in general. That statute defines the “violent” felonies it covers to include “burglary, arson, or extortion” and “crime[s]” that have “as an element” the use or threatened use of force. 18 U. S. C. §§ 924(e)(2)(B)(i)-(ii). This language refers directly to generic crimes. The statute, however, contains other, more ambiguous language, covering “crime[s]” that “involv[eJ conduct that presents a serious potential risk of physical injury to another.” Ibid. (emphasis added). While this language poses greater interpretive difficulty, the Court held that it too refers to crimes as generically defined. James, supra, at 202.
Now compare the “aggravated felony” statute before us. 8 U. S. C. § 1101(a)(43). We concede that it resembles ACC A in certain respects. The “aggravated felony” statute lists several of its “offenses” in language that must refer to generic crimes. Subparagraph (A), for example, lists “murder, rape, or sexual abuse of a minor.” See, e. g., Estrada-Espinoza v. Mukasey, 546 F. 3d 1147, 1152 (CA9 2008) (en banc) (applying the categorical approach to “sexual abuse”); Singh v. Ashcroft, 383 F. 3d 144, 164 (CA3 2004) (same); Santos v. Gonzales, 436 F. 3d 323, 324 (CA2 2005) (per curiam) (same). Subparagraph (B) lists “illicit trafficking in a controlled substance.” See Gousse v. Ashcroft, 339 F. 3d 91, 95-96 (CA2 2003) (applying categorical approach); Fernandez v. Mukasey, 544 F. 3d 862, 871-872 (CA7 2008) (same); Steele v. Blackman, 236 F. 3d 130, 136 (CA3 2001) (same). And subparagraph (C) lists “illicit trafficking in firearms or destructive devices.” Other sections refer specifically to an “offense described in” a particular section of the Federal Criminal Code. See, e. g., subparagraphs (E), (H), (I), (J), (L).
More importantly, however, the “aggravated felony” statute differs from ACCA in that it lists certain other “offenses” using language that almost certainly does not refer to generic crimes but refers to specific circumstances. For example, subparagraph (P), after referring to “an offense” that amounts to “falsely making, forging, counterfeiting, mutilating, or altering a passport,” adds, “except in the case of a first offense for which the alien... committed the offense for the purpose of assisting... the alien’s spouse, child, or parent... to violate a provision of this chapter.” (Emphasis added.) The language about (for example) “forging... passport[s]” may well refer to a generic crime, but the italicized exception cannot possibly refer to a generic crime. That is because there is no such generic crime; there is no criminal statute that contains any such exception. Thus if the provision is to have any meaning at all, the exception must refer to the particular circumstances in which an offender committed the crime on a particular occasion. See also subparagraph (N) (similar exception).
The statute has other provisions that contain qualifying language that certainly seems to call for circumstance-specific application. Subparagraph (K)(ii), for example, lists “offense[s]... described in section 2421, 2422, or 2423 of title 18 (relating to transportation for the purpose of prostitution) if committed for commercial advantage.” (Emphasis added.) Of the three specifically listed criminal statutory sections only one subsection (namely, § 2423(d)) says anything about commercial advantage. Thus, unless the “commercial advantage” language calls for circumstance-specific application, the statute’s explicit references to §§2421 and 2422 would be pointless. But see Gertsenshteyn v. United States Dept. of Justice, 544 F. 3d 137, 144-145 (CA2 2008).
Subparagraph (M)(ii) provides yet another example. It refers to an offense “described in section 7201 of title 26 (relating to tax evasion) in which the revenue loss to the Government exceeds $10,000.” (Emphasis added.) There is no offense “described in section 7201 of title 26” that has a specific loss amount as an element. Again, unless the “revenue loss” language calls for circumstance-specific application, the tax-evasion provision would be pointless.
The upshot is that the “aggravated felony” statute, unlike ACCA, contains some language that refers to generic crimes and some language that almost certainly refers to the specific circumstances in which a crime was committed. The question before us then is to which category subparagraph (M)(i) belongs.
2
Subparagraph (M)(i) refers to “an offense that... involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” (Emphasis added.) The language of the provision is consistent with a circumstance-specific approach. The words “in which” (which modify “offense”) can refer to the conduct involved “m” the commission of the offense of conviction, rather than to the elements of the offense. Moreover, subparagraph (M)(i) appears just prior to subparagraph (M)(ii), the internal revenue provision we have just discussed, and it is identical in structure to that provision. Where, as here, Congress uses similar statutory language and similar statutory structure in two adjoining provisions, it normally intends similar interpretations. IBP, Inc. v. Alvarez, 546 U. S. 21, 34 (2005).
Moreover, to apply a categorical approach here would leave subparagraph (M)(i) with little, if any, meaningful application. We have found no widely applicable federal fraud statute that contains á relevant monetary loss threshold. See, e. g., 18 U. S. C. §§ 1341 (mail fraud), 1343 (wire fraud), 1344 (bank fraud), 371 (conspiracy to defraud the United States), 666 (theft in federally funded programs), 1028 (fraud in connection with identification documents), 1029 (fraud in connection with access devices), 1030 (fraud in connection with computers), 1347 (health care fraud), and 1348 (securities fraud). Petitioner has found only three federal fraud statutes that do so, and those three contain thresholds not of $10,000, but of $100,000 or $1 million, §§ 668 (theft by fraud of an artwork worth $100,000 or more), 1031(a) (contract fraud against the United States where the contract is worth at least $1 million), and 1039(d) (providing enhanced penalties for fraud in obtaining telephone records, where the scheme involves more than $100,000). Why would Congress intend subparagraph (M)(i) to apply to only these three federal statutes, and then choose a monetary threshold that, on its face, would apply to other, nonexistent statutes as well?
We recognize, as petitioner argues, that Congress might have intended subparagraph (M)(i) to apply almost exclusively to those who violate certain state fraud and deceit statutes. So we have examined state law. See Appendix C, infra. We have found, however, that in 1996, when Congress added the $10,000 threshold in subparagraph (M)(i), see Illegal Immigration Reform and Immigrant Responsibility-Act § 321(a)(7), 110 Stat. 3009-628, 29 States had no major fraud or deceit statute with any relevant monetary threshold. In 13 of the remaining 21 States, fraud and deceit statutes contain relevant monetary thresholds but with amounts significantly higher than $10,000, leaving only 8 States with statutes in respect to which subparagraph (M)(i)’s $10,000 threshold, as categorically interpreted, would have full effect. We do not believe Congress would have intended (M)(i) to apply in so limited and so haphazard a manner. Cf. United States v. Hayes, 555 U. S. 415, 427 (2009) (reaching similar conclusion for similar reason in respect to a statute referring to crimes involving “domestic violence”).
Petitioner next points to 8 U. S. C. § 1326, which criminalizes illegal entry after removal and imposes a higher maximum sentence when an alien’s removal was “subsequent to a conviction for commission of an aggravated felony.” § 1326(b)(2). Petitioner says that a circumstance-specific approach to subparagraph (M)(i) could create potential constitutional problems in a subsequent criminal prosecution under that statute, because loss amount would not have been found beyond a reasonable doubt in the prior criminal proceeding. The Government, however, stated in its brief and at oral argument that the later jury, during the illegal reentry trial, would have to find loss amount beyond a reasonable doubt, Brief for Respondent 49-50; Tr. of Oral Arg. 39-40, eliminating any constitutional concern. Cf. Hayes, supra, at 426.
We conclude that Congress did not intend subparagraph (M)(i)’s monetary threshold to be applied categorically, i. e., to only those fraud and deceit crimes generically defined to include that threshold. Rather, the monetary threshold applies to the specific circumstances surrounding an offender’s commission of a fraud and deceit crime on a specific occasion.
III
Petitioner, as an alternative argument, says that we should nonetheless borrow from Taylor what that case called a “modified categorical approach.” He says that, for reasons of fairness, we should insist that a jury verdict, or a judge-approved equivalent, embody a determination that the loss involved in a prior fraud or deceit conviction amounted to at least $10,000. To determine whether that is so, petitioner says, the subsequent immigration court applying subparagraph (M)(i) should examine only charging documents, jury instructions, and any special jury finding (if one has been requested). If there was a trial but no jury, the subsequent court should examine the equivalent judge-made findings. If there was a guilty plea (and no trial), the subsequent court should examine the written plea documents or the plea colloquy. To authorize any broader examination of the prior proceedings, petitioner says, would impose an unreasonable administrative burden on immigration judges and would unfairly permit him to be deported on the basis of circumstances that were not before judicially determined to have been present and which he may not have had an opportunity, prior to conviction, to dispute.
We agree with petitioner that the statute foresees the use of fundamentally fair procedures, including procedures that give an alien a fair opportunity to dispute a Government claim that a prior conviction involved a fraud with the relevant loss to victims. But we do not agree that fairness requires the evidentiary limitations he proposes.
For one thing, we have found nothing in prior law that so limits the immigration court. Taylor, James, and Shepard, the cases that developed the evidentiary list to which petitioner points, developed that list for a very different purpose, namely, that of determining which statutory phrase (contained within a statutory provision that covers several different generic crimes) covered a prior conviction. See supra, at 34-35; Taylor, 495 U. S., at 602; Shepard, 544 U. S., at 26. For another, petitioner’s proposal itself can prove impractical insofar as it requires obtaining from a jury a special verdict on a fact that (given our Part II determination) is not an element of the offense.
Further, a deportation proceeding is a civil proceeding in which the Government does not have to prove its claim “b
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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songer_district
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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 which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
MacMANUS et al. v. COMMISSIONER OF INTERNAL REVENUE.
No. 9110.
Circuit Court of Appeals, Sixth Circuit.
Dec. 3, 1942.
John J. Sloan, of Detroit, Mich., for petitioner.
L. W. Post, Sp. Asst. to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Sp. Asst. to Atty. Gen., on the brief), for respondent.
Before PIICKS, SIMONS, and ALLEN, Circuit Judges.
SIMONS, Circuit Judge.
The single question presented for decision is whether for tax purposes the petitioner was a trustee in four separate and independent trusts originally set up by his father, Theodore F. MacManus, or whether, by the several mutations subsequent to the original creation of the trusts, they had become merged into a single trust with multiple beneficiaries. The question is important because if there is but a single trust, as the Commissioner of Internal; Revenue ruled, and the Board of Tax Appeals found, a substantial additional tax is payable. If there are four trusts as contended by the petitioner, the additional tax is but nominal. There is no controversy about the computations.
On July 18, 1923, Theodore F. MacManus created six identical revocable trusts, one for each of his six children, with the Detroit Trust Company as trustee in each. Unless previously revoked the trusts were to terminate on the grantor’s death when the principal and accumulations were to be paid over to each beneficiary. The following year, by amendment to each of the trusts, they were made irrevocable, the grantor, however, reserving to himself the power to designate beneficiaries within certain limits. Two of the children died in 1930 and 1931 respectively, and the assets of each of their trusts were distributed to their distributees or heirs at law, as provided in the trust instruments. Early in 1934 the grantor, being dissatisfied with the handling of the estates by the trustee, desired to terminate or reconstitute the trusts and to rehabilitate the assets. The carrying out of his purpose was preceded by family conferences and resulted in the transfer of the assets of all four trusts to the petitioner who executed a declaration of trust wherein he acknowledged holding the corpus as trustee for hi& two sisters, his brother, and himself, share and share alike. It is with the interpretation of this instrument that the controversy mainly is concerned. Prior to its execution, however, Theodore F. MacManus on April 20, 1934, wrote to the petitioner advising him of his intention and purpose in reconstituting the trusts. Since the Board found the petitioner’s declaration ambiguous and resort to extrinsic aids to its interpretation necessary, the precise terms of this communication likewise becomes important, and both it and the instrument itself are, insofar as they bear upon the issue involved, printed in the margin.
That prior to May 9, 1934, there remained four separate and independent trusts of the six originally created is not questioned. In the instrument subsequently executed by the son John, for the benefit of himself, sisters and brother, there appears to be indiscriminate reference to a singular “trust” and to plural “trusts.” While attaching no great significance to this aspect, the Board considered that it left the question of the grantor’s intent unanswered. It concluded from other relevant documents that if the father or son intended to create more than one trust they failed to give this intention adequate expression. Finding that a single capital account was set up on the books of the trustee in his name as trustee, by the accountant in charge, and that but one fiduciary return was filed, executed by the trustee, which listed the four beneficiaries each as having a 25% share in the income, the Board concluded that this evidenced a practical construction of the trust instrument, both by the trustee and the accountant who had been his father’s consultant. It therefore concluded that there was one trust and not four.
The reasoning leading to this conclusion was that the petitioner’s contention as to the multiple character of the trusts necessitated a preliminary assumption that the administration of the trust was carried on in a' manner inconsistent with the purpose and intent of the original grantor, and so to hold that four trusts existed would compel an inference that the son and the grantor’s adviser, though fully aware of the father’s intention to erect four trusts, deliberately accomplished the reverse. This the Board was not prepared to do. The argument is not persuasive and is unsound. Insofar as it bases conclusion upon an assumed practical construction of an ambiguous instrument it utilizes but an unilateral construction thereof. Theodore F. MacManus is dead. It is his intention that is conceded to be controlling. There is nothing in the record to indicate that he knew, consented to, or acquiesced in the treatment of trust accounts as though of a single trust, and it would be novel doctrine to resolve an ambiguity by relying upon a construction given to an instrument which it not mutual to all parties concerned therewith.
Assuming ambiguity, we turn to a consideration of the grantor’s letter to his son John. It indicates his sole purpose to be a change of trustee because of his dissatisfaction with the results obtained by the Trust Company. He is advised that the simplest way of relieving the Trust Company is to change the beneficiary provision from Theodora, Alice and Teddy, to John, who would then act as sole trustee. Then to avoid any misunderstanding or confusion, he says, “I want to impress upon you most earnestly, however, that the original spirit behind the creation of the trust (s) is not changed. Our distinct and definite understanding is that the four trusts are to remain intact and that your own, Theodora’s, Alice’s and Teddy’s positions will be exactly the same.” Had he stopped there, no contention could reasonably have been made that it was his purpose to convert the separate trusts into one. The final sentence of the. letter, however, says, “The details and mechanics of the matter I leave to you in consultation with Mr. Hammel and Mr. Sloan.” It is upon this grant of authority that the Board relies in concluding that the “administration” (book treatment) of the estate was in consonance with the grantor’s intention.
The conclusion will not bear analysis. The “details and mechanics of the matter” certainly do not, in the ordinary understanding of the phrase, comprehend departure from the clearly expressed purpose that the four trusts are to remain intact. However the purpose of the grantor may have been carried out, whether by following the recited suggestion of Hammel and Sloan, or upon other advice, whether by one trust instrument or by four, whether by treating the corpus as it had theretofore been treated as single or divided into four equal shares, whether the instrument was to be a trust declaration by the petitioner or an agreement between the grantor and his beneficiaries, these are “details and mechanics of the matter,” but none would cause departure from the grantor’s clearly expressed purpose.
In this approach to the interpretation of the trust instrument and the purpose of Theodore MacManus, we assume, as did the Board and respondent’s counsel in argument, that our decision in Buhl v. Kavanagh, 6 Cir., 118 F.2d 315, is sound, and that when the original grantor undertakes to reshape or remold a trust, the better to conform with his ideas, the original trustor is still the grantor of the trust estate, regardless of the form that the reshaping or remolding of the trust may take.
That the accountant, for the purpose of convenience, set up but one capital account, is unimportant, for where there is an intention to create (or continue) separate trusts the fact that “the trusts” are kept in one fund does not necessarily defeat the intention and require the conclusion that there is but a single trust, United States Trust Co. v. Commissioner, 296 U.S. 481, 487, 56 S.Ct. 329, 80 L.Ed. 340, for an undivided interest in property may constitute the corpus of a trust and there may be several trusts where there is but one corpus. Once an estate is created no subsequent course of dealing can change its nature. McCrory v. Commissioner, 5 Cir., 69 F.2d 688. True it may be that the trustee’s treatment of the corpus may throw light upon the intention of the grantor, as in Huntington Nat’l Bank-v. Commissioner, 6 Cir., 90 F.2d 876, where other criteria coincide, but this argument does not go so far as to indicate that such treatment controls where there are opposing indicia of the grantor’s purpose, clearly expressed.
While the Board laid no great stress upon the seemingly indiscriminate use of singular and plural in reference to the trust estate, much was made of it in argument by counsel for the respondent, and so analysis of the trust declaration becomes important. It will be observed that the petitioner recites therein that Theodore F. MacManus was the grantor in four trust agreements dated July 18, 1923, later amended, and that under the power reserved to him he is to make “the said John R. MacManus the sole beneficiary in each of said four (4) trusts,” the purpose of changing beneficiaries “in said trusts” being to facilitate a termination thereof by unanimous consent of all the parties in interest so that “said trusts” may be continued in a broader form. The petitioner then acknowledges that pursuant to a common understanding with all parties in interest, he will hold the corpus and income “of said trusts” as trustee. Then follows a provision authorizing the conversion of assets into cash and its reinvestment. Here is the first reference to the trusts in the singular, but immediately thereafter is a provision authorizing the payments of money to the mother of the beneficiary and wife of the grantor, with reference to the corpus and income “of said trust estate or estates,” and a following provision for advances to the beneficiary of a part of the corpus or income “of said trusts.” The remaining provisions of the instrument contain several references to the trust in the singular, but intermingled with references to plural trusts.
It thus will be seen that in the declaration of the trustee there is a clear recognition of the purpose of Theodore F. MacManus to continue the existing trusts with but one change, and that in the name of the trustee, and that the predominant thought throughout the instrument is that there are four trusts and not one. When it is understood that the corpus of the trust was in solido and that the trust estate of each of the beneficiaries was an undivided interest in such corpus, the occasional departure from the plural to the singular is easily understood. The concept predominantly in the mind of the draftsman in one recital may have, been the plural trusts, in another the unitary character of the corpus. Upon such finely woven distinctions the clearly expressed purpose of the actual trustor is not to be set aside.
It is true that on questions of fact we are bound by the findings of the Board, Tracy v. Com’r, 6 Cir., 53 F.2d 575, if not contrary to the indisputable character of the evidence or if the evidence is legally sufficient to sustain such finding. The question of the grantor’s intention may be a question of fact based upon evidence or inference reasonably flowing from such evidence. Our search of the record fails to disclose any evidence to indicate the purpose of the settlor to' merge the four previously existing trusts into one trust, or reasonably to warrant an inference of such purpose. There is, on the contrary, a rule of construction based on reason and human experience to the effect that an existing condition is presumed to continue until there is proof that some change has occurred or is contemplated. In the interpretation of the trust declaration of the petitioner we assume the question to be one of law, and that upon it, we are not circumscribed by the Board’s conclusions.
The decision of the Board is reversed and the cause remanded for further proceedings consistent herewith.
“John:
“As you are aware, we have had several discussions during the past year with the Trust Co. concerning the arrangement with them. They have probably done their best — as they see it — but Messrs. Hamm el and Sloan and myself are agreed that your interests and those of your brother and sisters will be best served, if we take the whole matter in hand ourselves. If the Trust Co. is eliminated there is a good chance that the four trusts can bo rehabilitated which is, of course, my dearest wish. I am advised that the simplest way of relieving the Trust Co. of the four trusts is to change the beneficiary provision from Theodora, Alice, and Teddy to you. You would then act as sole trustee and all clerical and other signature provisions would be executed through you. If these are the mechanics to be followed it is agreeable to me. I want to impress upon you most earnestly, however, that the original spirit behind the creation of the trust is not changed. Our distinct and definite understanding is that the four trusts are to remain intact and that your own, Theodora’s, Alice’s, and Teddy’s positions will be exactly the same. The details and mechanics of the matter I leave to you in consultation with Mr. Hammel and Mr. Sloan.
“Father.”
“Theodore F. MacManus, the Grantor in four (4) Trust Agreements dated July 18, 1923, and later amended, in which trusts the Detroit Trust Company, a Michigan Corporation, is trustee, and in which Theodora MacManus, Alice W. MacManus, Edwin Benedict MacManus, and John R. MacManus, are the respective beneficiaries, bas indicated that under the powers reserved to him in said trusts and amendments, he is to make me, the said John R. MacManus the sole beneficiary in each of said four (4) trusts.
“The purpose of so changing the beneficiaries in said Trusts is to facilitate a termination thereof by unanimous consent of all the parties in interest so that said Trusts may be continued in a broader form to the end that if possible said Trusts may be rehabilitated, I, the said John R. MacManus, supplanting the Detroit Trust Company as trustee.
“I therefore acknowledge, pursuant to a common understanding with all parties in interest, that I shall hold all of the corpus and income of said trusts as trustee for Theodora MacManus, Alice M. MacManus (now Alice M. Fox), Edwin Benedict MacManus and John R. Mac-Manus, share and share alike.
“It is understood that the assets of said trust may be by me at any time converted into cash or exchanged for other securities and that funds so realized may be carried by me in my own name individually or as trustee, and that I may make investments from time to time in business ventures or speculative ventures, but whether carried in my name individually or as trustee, it is understood that all of said assets and all the emoluments and dividends and profits thereof are and shall be the property of the four (4) persons hereinbefore named in the proportions hereinbefore indicated.
“It is understood that I may upon request of Alice Holdridge MacManus, the mother of all of the beneficiaries herein-before named pay to her from time to time any part of the corpus and income of said trust estate or estates, and that all such payments shall be deemed to be the equal contribution of all the beneficiaries herein named, and that the receipt to me of the said Alice Holdridge MacManus shall be my full acquittance to the extent thereof.
“It is further understood that I may from time to time with the consent of Alice Holdridge MacManus advance to said beneficiaries a part of the corpus or income of said trusts, the making of the said advancement being however within my sole discretion, and the amounts so advanced shall be a charge against such beneficiaries’ interest.
“I further agree that if, as and when any dividends or profits are declared on any investments of such trust funds and paid to me, I may divide the same equally among the persons hereinbefore named, if at that time I deem such division advisable or I may withhold the same and credit to account of beneficiaries if I deem it expedient for the benefit of such trusts.
“It is further agreed that I shall be responsible only for the exercise of good faith and to account to the four (4) beneficiaries named above.
“It is farther understood that this trust shall remain in full force and effect until the death of the survivor of Theodore F. MacManus and Alice Holdridge Mac-Manus, his wife. On termination, the entire assets of said trust estate shall pass to and be paid over to the beneficiaries thereof, share and share alike, and in the event of the death of any such beneficiary prior to termination of trust such share shall be held in trust till termination, then pass to his or her distribu-tees ; that is to say, the persons who, by the statute of distributions, shall be entitled to share his or her intestate personal estate and in the proportions in such statute provided.”
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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sc_lcdisagreement
|
A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
UNITED STATES v. SEABOARD AIR LINE RAILROAD CO.
No. 10.
Argued October 19, 1959.
Decided November 9, 1959.
John F. Davis argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Wilkey, Beatrice Rosenberg and J. F. Bishop.
Eppa Hunton TV argued the cause for respondent. With him on the brief was Lewis Thomas Booker.
Mr. Justice Douglas
delivered the opinion of the Court.
This is a suit for statutory penalties, instituted by the United States, charging respondent with the operation of four trains in violation of the Safety Appliance Act, 27 Stat. 531, as amended, 32 Stat. 943, 45 U. S. C. §§ 1, 6, 9. That Act requires every “train” moving in interstate traffic to have power brakes on not less than 50% of the cars (§§ 1, 9) — a requirement which the'Interstate Commerce Commission by regulation has increased to 85%. 49 CFR § 132.1. The penalties .are $100 for each violation. § 6.
The'District Court rendered judgment for respondent and the Court of Appeals affirmed by a divided vote. 258 F. 2d 262. We granted the petition for a writ of certiorari because of the seeming conflict between that ruling and our prior decisions. 358 U. S. 926.
Respondent has a “classification or assembly yard” in Hopewell, Virginia. Trains to and from Hopewell use it for breaking.up incoming trains and for assembling cars into outgoing trains. A- track extends from this “classification” yard for about two miles through the city. In this stretch the tracks make an interchange connection with another railroad and cross, at grade, fivé streets, two private roads and four tracks of another railroad. Nine spur tracks branch off these tracks to industrial sidings. About two miles from the “classification” yard are plants of the Allied Chemical & Dye Company and Continental Can Company.
The complaint charged four violations: First, moving a locomotive and 26 cars as a single' unit, without stops, from the track of Allied Chemical to the “classification” yard.' ' Second, moving a locomotive and 28 cars as a single unit, without stops, from the “classification” yard to the track of Allied Chemical. Third, moving a locomotive- and 29 cars as a single unit, without stops, from a track near Allied Chemical for about a mile to the interchange track where the locomotive was detached, coupled to 20 additional cars, and then recoupled to the 29 cars. The 49 cars were then hauled, without stops, for about a mile to the “classification” yard. Fourth, moving a locomotive and 23 cars as a single unit, without stops, from the “classification” yard to the track of Continental Can.
The meaning of the word “train” as used, in the Act has been before the Court four times. In United States v. Erie R. Co., 237 U. S. 402, it was recognized that while “switching operations” were not “train” movements within the meaning of the Act, the movement of cars from one yard to another yard of the same carrier was covered. It was emphasized that this movement, like other mainline movements, took the cars over switches and other tracks where the traffic was exposed to the hazards against which the Act was designed to afford protection. The same result was reached in United States v. Chicago, B. & Q. R. Co., 237 U. S. 410, where the movements were of transfer trains, shifting cars from one yard in Kansas City to another on the opposite side of the Missouri River. It was again emphasized that this was “not shifting cars about in a yard or on isolated tracks devoted to switching operations,” but moving traffic over- a line where there were great hazards in the operation. Id., at 412. Louisville & J. Bridge Co. v. United States, 249 U. S. 534, involved movements of cars for about three-quarters of a mile from one company’s terminal to that of another, the cars passing over city streets, at grade, and along and over .other tracks. The Court, in holding that these movements were covered by the Act, emphasized that this was not “a sorting, or selecting, or classifying” of cars “involving coupling and uncoupling, and the movement of one or a few at a time for short distances,” but an operation involving the typical hazards which gave rise to the need for the Act. Id., at 538. United States v. Northern Pacific R. Co., 254 U. S. 251, involved so-called transfer trains running between points, four miles apart-, within one yard. The railroad contended that the Act. did not apply because the movement was within a yard and because no through or local trains moved over these tracks. The tracks did cross streets and other tracks at grade; and the trains were run without stops the four miles. It was held that these movements were covered by the Act.. “A moving locomotive with cars attached is without the provision of the act only when it is not a train; as where the operation is that of switching, classifying and assembling cars within railroad yards for the purpose of making up trains.” Id.,. at 254-255.
We think this case, judged by the principles announced in the earlier four,.was erroneously decided.
The end of each trip was characteristic of the usual freight run: cars were either received from a consignor -or delivered to the consignee. This was not “sorting, or selecting, or classifying” cars “involving coupling and uncoupling, and the movement of one or a few at a time for short distances’’ (Louisville & J. Bridge Co. v. United States, supra, at 538) nor any other type of movement that is comparable to “switching.” In three of the movements there was a run of two miles without stops. In one, there was one stop to pick up additional cars ; but a mile run preceded that stop and another mile of uninterrupted travel followed it. The prior decisions make clear that it is immaterial that the run was not on the main "line but in a yard. The fact that switching preceded or followed these movements is likewise irrelevant to the statutory test. It may properly.be said there is no “train” in a true “switching” operation.. But when cars — at least in substantial number — are being received from consignors or delivered to consignees in an assembled unit of engine • and cars that moves a substantial distance, the operation is intrinsically no different, for purposes of the Act, than a mainrline haul.
The District Court found that “The movements complained of would not have been less hazardous to employees -or the public if air brakes had been coupled and used.” Yet it is not for courts to determine in particular cases whether this, safety measure is or is not needed. Congress determined the policy that governs us in applying the law. Traditionally, movements of assembled cars for substantial distances involved the hazards of, crossing public highways and the tracks of other lines with attendant risks to the • public. More important, they involved risks to those who ride the trains, párticu-larly the men who operate them. History showed that hundreds of workers had been injured or killed by the stopping of imbraked cars, by the operation of hand brakes, and by. the use of hand couplers. This history, well known to Congress, was the primary purpose behind the legislation. The Act, therefore, should be liberally construed as a safety measure. Movements which, though miniature when compared with, main-line hauls, have the characteristics of the customary “train” movement and its attendant risks, are to be included.
Reversed.
Section. 1 provides, in relevant part:
“It shall be unlawful for any common carrier engaged in interstate commerce by railroad to use on its line any locomotive engine in moving interstate traffic not ¿quipped with . . . appliances for operating the train-brake system, or to run any train in such traffic that has not a sufficient number of cars in it so equipped with power or train brakes that the engineer on the locomotive drawing such train can control its speed without requiring brakemen to use the common hand brake for that purpose.”
The statute was amended August 14, 1957, to increase the penalty to $250 (71 Stat. 352, 45 U. S. C. (Supp. V) § 6).
Respondent since 1951 had used air brakes on the cars in these movements after inspectors of the Interstate Commerce Commission had advised that it was necessary to do so. But it discontinued the practice in 1956; justifying the discontinuance on the ground that switching movements were involved, that the use of air brakes caused a delay of about 40 minutes in each movement, and that the increased annual cost for the usé of air brakes was $30,000.
The title of the original Act described it as “An Act to promote the safety of employees arid travelers upon railroads . . .” etc. 27 Stat. 531.
See H. R. Rep. No. 1678, 52d Cong., 1st Sess., p. 3, where it is noted that for the years 1889 and 1890 “38 per cent of the total number of deaths and 46 per cent of the total number of injuries sustained by railway employés resulted while coupling cars or setting brakes.”
On page 7 of a report of a subcommittee submitted as a part of S. Rep. No. 1930, 57th Cong., 1st Sess., the following statement of a witness appearing before the subcommittee was made: ;
“If only a portion of the equipped cars are operated, trainmen are exposed to great danger ■ arising from the breakage of an air hose, or a coupling between the cars so braked, which causes an instantaneous and extremely powerful application of the power brakes, which causes the front cars in the train to quickly slacken speed and stop, and the other cars behind them, which are not braked, to rush forward against them, thus causing a severe shock, which often wrecks the train and jars the trainmen off and injures them, and' in some cases they fall under the wheels and are killed. If the brakes on all of thé cars were operated this would not be so, for the brakes would be applied equally all over the train, and the cars on! the rear end would slacken their speed just as quickly as those on the front end, and thus prevent their running forward against the front cars and producing the shock just described. There is no -way for trainmen to escape these injuries; for they are still required by the companies to ride out on the tops of trains, ^nd when.one of these shocks comes, it comes to them without warning, for the noise of the running train, together, with darkness at'night, prevents them from detecting any trouble ahead.
“Wrecks caused in this way do not only cause injury to the trainmen on the train which is wrecked, but also on double-tracked roads the opposite track is immediately blocked, with wrecked cars, thus endangering not only the lives and limbs of trainmen, but passengers as well, who may be on trains approaching on the opposite track, which can not be stopped before striking the obstruction! I personally know of several bad wrecks of this character myself.”
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer:
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sc_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.
SECURITIES INDUSTRY ASSOCIATION et al. v. BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM et al.
No. 82-1766.
Argued March 21, 1984
Decided June 28, 1984
Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and White, Marshall, Powell, and Rehnquist, JJ., joined. O’Connor, J., filed a dissenting opinion, in which Brennan and Stevens, JJ., joined, post, p. 160.
Harvey L. Pitt argued the cause for petitioners. With him on the briefs for petitioner A. G. Becker Incorporated were Henry A. Hubschman, David M. Miles, and Laurence H. Tribe. James B. Weidner, John M. Liftin, William J. Fitzpatrick, and Donald J. Crawford filed briefs for petitioner Securities Industry Association.
Deputy Solicitor General Claiborne argued the cause for respondents. With him on the brief were Solicitor General Lee, Acting Assistant Attorney General Willard, Barbara E. Etkind, and Anthony J. Steinmeyer
Briefs of amici curiae urging reversal were filed for Goldman, Sachs & Co. by G. Duane Vieth, Leonard H. Becker, and Joseph McLaughlin; and for the Investment Company Institute by Louis Loss and Thomas D. Maher.
Briefs of amici curiae urging affirmance were filed for Bankers Trust Co. by John W. Bamum and Jennifer A. Sullivan; and for the New York Clearing House Association et al. by Robert S. Rifkind, William H. Smith, and Michael F. Crotty.
Justice Blackmun
delivered the opinion of the Court.
This case involves a challenge to the efforts of a state commercial bank to enter the business of selling third-party commercial paper. The Board of Governors of the Federal Reserve System (Board) concluded that such activity by state member banks is not prohibited by the Banking Act of 1933, ch. 89, 48 Stat. 162 (commonly known as the Glass-Steagall Act) because commercial paper is neither a “security” nor a “note” within the meaning of that Act and therefore falls outside the Act’s proscriptions. The District Court disagreed with the Board, but the Court of Appeals deferred to the Board’s interpretation and reversed the judgment of the District Court. Because commercial paper falls within the plain language of the Act, and because the inclusion of commercial paper within the terms of the Act is fully consistent with the Act’s purposes, we conclude that commercial paper is a “security” under the Glass-Steagall Act, and we reverse the judgment of the Court of Appeals.
hH
During 1978 Bankers Trust Company (Bankers Trust), a New York-chartered member bank of the Federal Reserve System, began serving as agent for several of its corporate customers in placing their commercial paper in the commercial-paper market. Petitioners, the Securities Industry Association (SIA), a national securities-industry trade association, and A. G. Becker Inc. (Becker), a dealer in commercial paper, informally expressed concern to the Board about Bankers Trust’s commercial-paper activities. SIA and Becker subsequently petitioned the Board for, among other things, a ruling that Bankers Trust’s activities are unlawful under §§16 and 21 of the Act, 12 U. S. C. §§24 Seventh and 378(a)(1). Section 16 prohibits commercial banks from underwriting “securities or stock,” while §21 prohibits them from marketing “stocks, bonds, debentures, notes, or other securities.” Petitioners asserted that Bankers Trust’s activities violated both § 16 and § 21.
On September 26, 1980, the Board responded to petitioners’ request for enforcement of §§ 16 and 21 against Bankers Trust. See Federal Reserve System, Statement Regarding Petitions to Initiate Enforcement Action (1980), App. 122A (Board Statement). The Board acknowledged that Congress enacted the Act to prevent commercial banks from engaging in certain investment-banking activities, but explained that Congress did not intend the Act’s prohibitions to cover every instrument that could be characterized as a “note” or “security.” The Board expressed concern that such a broad interpretation might preclude commercial banks from maintaining many of their traditional activities. Accordingly, the Board took the position that “if a particular kind of financial instrument evidences a transaction that is more functionally similar to a traditional commercial banking operation than to an investment transaction, then fidelity to the purposes of the Act would dictate that the instrument should not be viewed as a security.” Id., at 135A. Applying this “functional analysis” to commercial paper, the Board concluded that such paper more closely resembles a commercial bank loan than an investment transaction and that it is not a “security” for purposes of the Glass-Steagall Act. Because of this determination, the Board did not consider whether Bankers Trust’s involvement with commercial paper constitutes “underwriting,” within the meaning of the Act.
Petitioners challenged the Board’s ruling in the United States District Court for the District of Columbia under, inter alia, the judicial-review provisions of the Administrative Procedure Act, 5 U. S. C. §701 et seq., claiming that the ruling was contrary to law. The District Court reversed the ruling, finding that commercial paper falls within the scope of §21’s reference to “notes... or other securities.” A. G. Becker Inc. v. Board of Governors of Federal Reserve System, 519 F. Supp. 602, 612 (1981). The court also found error in the Board’s “functional analysis” because it focused exclusively on the role that commercial paper plays in the financial affairs of the issuer. This approach ignored the commercial bank’s role in the transaction, which the District Court concluded is a central concern of the Act. Id., at 615-616.
The United States Court of Appeals for the District of Columbia Circuit, by a divided vote, reversed the judgment of the District Court. A. G. Becker Inc. v. Board of Governors of Federal Reserve System, 224 U. S. App. D. C. 21, 693 F. 2d 136 (1982). The Court of Appeals’ majority acknowledged that § 21’s reference to “notes” was broad enough to include commercial paper, which is a promissory note. The court explained, however, that the term “note” was also susceptible of a narrower reading, limited to long-term debt securities closely resembling a bond or debenture but of shorter maturity. Id., at 28-29, 693 F. 2d, at 143-144. Because the legislative history of the Act indicates that the 1933 Congress sought to encourage commercial banks to invest more heavily in commercial paper than in longer-term, more speculative securities, the court concluded that Congress used the term “notes” in §21 in this narrower sense. Id., at 29-31, 693 F. 2d, at 144-146. Finally, the court endorsed the Board’s functional analysis of commercial paper and concluded that commercial paper more closely resembled a loan than a security because of its low default rate, the large denominations in which it is issued, and the sophistication of its buyers. In the Court of Appeals’ view, these features of commercial paper eliminate the concerns that moved Congress to pass the Glass-Steagall Act. Id., at 32-36, 693 F. 2d, at 147-151.
Because of the importance of the issue for the Nation’s financial markets, we granted certiorari. 464 U. S. 812 (1983).
II
The Board is the agency responsible for federal regulation of the national banking system, and its interpretation of a federal banking statute is entitled to substantial deference. As the Court states elsewhere today, “the Board has primary responsibility for implementing the Glass-Steagall Act, and we accord substantial deference to the Board’s interpretation of that Act whenever its interpretation provides a reasonable construction of the statutory language and is consistent with legislative intent.” No. 83-614, Securities Industry Assn. v. Board of Governors of Federal Reserve System, post, at 217. We also have made clear, however, that deference is not to be a device that emasculates the significance of judicial review. Judicial deference to an agency’s interpretation of a statute “only sets ‘the framework for judicial analysis; it does not displace it.’” United States v. Vogel Fertilizer Co., 455 U. S. 16, 24 (1982), quoting United States v. Cartwright, 411 U. S. 546, 550 (1973). A reviewing court “must reject administrative constructions of [a] statute, whether reached by adjudication or by rulemaking, that are inconsistent with the statutory mandate or that frustrate the policy that Congress sought to implement.” FEC v. Democratic Senatorial Campaign Committee, 454 U. S. 27, 32 (1981).
Although these principles establish in general terms the appropriate standard of review, this case presents an additional consideration that counsels against full deference to the Board. At the administrative level, the Board took the position that commercial paper was not a “security” within the meaning of the Act, and that, therefore, it did “not appear necessary to examine the dangers that the Act was intended to eliminate.” Board Statement, App. 140A. Before this Court, however, the Board appears to have changed somewhat the nature of its argument. The Board’s counsel now insists that the activities of Bankers Trust “involv[e] none of the ‘hazards’ that this Court identified” as the concerns at which the Act is aimed. Brief for Respondents 40. We previously have stated that post hoc rationalizations by counsel for agency action are entitled to little deference: “It is the administrative official and not appellate counsel who possesses the expertise that can enlighten and rationalize the search for the meaning and intent of Congress.” Investment Company Institute v. Camp, 401 U. S. 617, 628 (1971); see also Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 168-169 (1962). As a result, the Board’s presentation here of the policies behind the Act as they apply to this case is of less significance than it would be if it had occurred at the administrative level. Because of this apparent shift, moreover, the contours of the Board’s present position are somewhat unclear; much of the Board’s argument now addresses the particular characteristics of the commercial paper in this case, apparently leaving open the possibility that commercial paper with different characteristics would qualify as a “security” and be subject to the Glass-Steagall Act’s proscriptions. See Brief for Respondents 33-44. To the extent that the Board has changed its position from that adopted at the administrative level, its interpretation is entitled to less weight.
Ill
A
In Camp this Court explored at some length the congressional concerns that produced the Glass-Steagall Act. Congress passed the Act in the aftermath of the banking collapse that produced the Great Depression of the 1930’s. The Act responded to the opinion, widely expressed at the time, that much of the financial difficulty experienced by banks could be traced to their involvement in investment-banking activities both directly and through security affiliates. At the very least, Congress held the view that the extensive involvement by commercial banks had been unwise; some in Congress concluded that it had been illegal. Senator Glass stated bluntly that commercial-bank involvement in securities had made “one of the greatest contributions to the unprecedented disaster which has caused this almost incurable depression.” 75 Cong. Rec. 9887 (1932).
Congressional worries about commercial-bank involvement in investment-bank activities reflected two general concerns. The first was the inherent risks of the securities business. Speculation in securities by banks and their affiliates during the speculative fever of the 1920’s produced tremendous bank losses when the securities markets went sour. In addition to the palpable effect that such losses had on the assets of affected banks, they also eroded the confidence of depositors in the safety of banks as depository institutions. This crisis of confidence contributed to the runs on the banks that proved so devastating to the solvency of many commercial banks.
But the dangers that Congress sought to eliminate through the Act were considerably more than the obvious risk that a bank could lose money by imprudent investment of its funds in speculative securities. The legislative history of the Act shows that Congress also focused on “the more subtle hazards that arise when a commercial bank goes beyond the business of acting as fiduciary or managing agent and enters the investment banking business.” Camp, 401 U. S., at 630. The Glass-Steagall Act reflects the 1933 Congress’ conclusion that certain investment-banking activities conflicted in fundamental ways with the institutional role of commercial banks.
The Act’s legislative history is replete with references to the various conflicts of interest that Congress feared to be present when a single institution is involved in both investment and commercial banking. Congress observed that commercial bankers serve as an important source of financial advice for their clients. They routinely advise clients on a variety of financial matters such as whether and how best to issue equity or debt securities. Congress concluded that it was unrealistic to expect a banker to give impartial advice about such matters if he stands to realize a profit from the underwriting or distribution of securities. See, e. g., 75 Cong. Rec. 9912 (1932) (remarks of Sen. Bulkley). Some legislators noted that this conflict is exacerbated by the considerable fixed cost that a securities dealer must incur to build and maintain a securities-distribution system. Explaining this concern, Senator Bulkley, a major sponsor of the Act, described the pressures that commercial banks had experienced through their involvement in the distribution of securities:
“In order to be efficient a securities department had to be developed; it had to have salesmen; and it had to have correspondent connections with smaller banks throughout the territory tributary to the great bank. Organizations were developed with enthusiasm and with efficiency.... But the sales departments were subject to fixed expenses which could not be reduced without the danger of so disrupting the organization as to put the institution at a disadvantage in competition with rival institutions. These expenses would turn the operation very quickly from a profit to a loss if there were not sufficient originations and underwritings to keep the sales departments busy.” Id., at 9911.
Congress also expressed concern that the involvement of a commercial bank in particular securities could compromise the objectivity of the bank’s lending operations. Congress feared that the pressure to dispose of an issue of securities successfully might lead a bank to use its credit facilities to shore up a company whose securities the bank sought to distribute. See 1931 Hearings, pt. 7, p. 1064. Some in Congress feared that a bank might even make unsound loans to companies in whose securities the bank has a stake or to a purchaser of securities that the bank seeks to distribute. Ibid. Alternatively, a bank with loans outstanding to a company might encourage the company to issue securities through the bank’s distribution system in order to obtain the funds needed to repay bank loans. 75 Cong. Rec. 9912 (1932) (remarks of Sen. Bulkley). Congress also faced some evidence that banks had misused their trust departments to unload excessive holdings of undesirable securities. Camp, 401 U. S., at 633; 1931 Hearings, pt. 1, p. 237.
The Act’s design reflects the congressional perception that certain investment-banking activities are fundamentally incompatible with commercial banking. After hearing much testimony concerning the appropriate form of a legislative response to the problems, Congress rejected the view of those who preferred legislation that simply would regulate the underwriting activities of commercial banks. Congress chose instead a broad structural approach that would “surround the banking business with sound rules which recognize the imperfection of human nature that our bankers may not be led into temptation, the evil effect of which is sometimes so subtle as not to be easily recognized by the most honorable man.” 75 Cong. Rec. 9912 (1932) (remarks of Sen. Bulkley). Through flat prohibitions, the Act sought to “separate] as completely as possible commercial from investment banking.” Board of Governors of Federal Reserve System v. Investment Company Institute, 450 U. S. 46, 70 (1981) (ICI). Such an approach was not without costs in terms of efficiency and competition, but the Act reflects the view that the subtle risks created by mixing the two activities justified a strong prophylaxis. Camp, 401 U. S., at 630.
B
Sections 16 and 21 of the Act are the principal provisions that demarcate the line separating commercial and investment banking. Section 16 limits the involvement of a commercial bank in the “business of dealing in stock and securities” and prohibits a national bank from buying securities, other than “investment securities,” for its own account. 12 U. S. C. §24 Seventh. In addition, the section includes the general provision that a national bank “shall not underwrite any issue of securities or stock.” Section 5(c) of the Act, 12 U. S. C. §335, makes §16’s limitations applicable to state banks that are members of the Federal Reserve System. It is therefore clear that Bankers Trust may not underwrite commercial paper if commercial paper is a “security” within the meaning of the Act.
Section 21 also separates investment and commercial banks, but does so from the perspective of investment banks. Congress designed § 21 to prevent persons engaged in specified investment-banking activities from entering the commercial-banking business. The section prohibits any person “engaged in the business of issuing, underwriting, selling, or distributing... stocks, bonds, debentures, notes, or other securities” from receiving deposits. Bankers Trust receives deposits, and it therefore is clear that § 21’s prohibitions apply to it.
Because § 16 and § 21 seek to draw the same line, the parties agree that the underwriting prohibitions described in the two sections are coextensive, and we shall assume that to be the case. In any event, because both § 16 and § 21 apply to Bankers Trust, its activities in this case are unlawful if prohibited by either section. The language of §21 is perhaps the more helpful, however, because that section describes in greater detail the particular activities of investment banking that Congress found inconsistent with the activity of commercial banks.
It is common ground that the terms “stocks,” “bonds,” and “debentures” do not encompass commercial paper. The dispute in this case focuses instead on petitioners’ claims that commercial paper constitutes a “note” within the meaning of § 21, and, if not, that it is nevertheless encompassed within the inclusive term “other securities.” Thus, petitioners claim that the plain language of the Act makes untenable the Board’s conclusion that commercial paper is not a “security” within the meaning of the Act. Petitioners contend further that the role played by Bankers Trust in placing the commercial paper of third parties is precisely what the Glass-Steagall Act sought to prohibit.
C
Neither the term “notes” nor the term “other securities” is defined by the statute. “This silence compels us to'start with the assumption that the legislative purpose is expressed by the ordinary meaning of the words used.’” Russello v. United States, 464 U. S. 16, 21 (1983), quoting Richards v. United States, 369 U. S. 1, 9 (1962). Respondents do not dispute that commercial paper consists of unsecured promissory notes and falls within the general meaning of the term “notes.” See Board Statement, App. 131A; see also Brief for Respondents 2. Respondents assert, however, that the context in which the term is used suggests that Congress intended a narrower definition. Because the term appears in a phrase that includes “stocks, bonds, [and] debentures,” the Board insists that the Act’s prohibitions apply only to “notes [and] other securities” that resemble the enumerated financial instruments. The Board’s position seems to be that because “stocks, bonds, [and] debentures” normally are considered “investments,” the Act is meant to prohibit the underwriting of only those notes that “shar[e] that characteristic of an investment that is the common feature of each of the other enumerated instruments.” Brief for Respondents 23. Applying that criterion to commercial paper, the Board maintains that commercial paper more closely resembles a commercial loan and that it is therefore not an investment of the kind that qualifies as a “security” under the Act.
For a variety of reasons, we find unpersuasive the notion that Congress used the terms “notes... or other securities” in the narrow sense that respondents suggest. First, the Court noted in Camp that “there is nothing in the phrasing of either § 16 or § 21 that suggests a narrow reading of the word ‘securities.’ To the contrary, the breadth of the term is implicit in the fact that the antecedent statutory language encompasses not only equity securities but also securities representing debt.” 401 U. S., at 635.
There is, moreover, considerable evidence to indicate that the ordinary meaning of the terms “security” and “note” as used by the 1933 Congress encompasses commercial paper. Congress enacted the Glass-Steagall Act as one of several pieces of legislation collectively designed to restore public confidence in financial markets. See the Banking Act of 1933, ch. 89, 48 Stat. 162 (codified as amended in scattered sections of 12 U. S. C.); the Securities Act of 1933, 48 Stat. 74, 15 U. S. C. §77a et seq.; the Securities Exchange Act of 1934, 48 Stat. 881, 15 U. S. C. §78a et seq.; and the Public Utility Holding Company Act of 1935, 49 Stat. 803, 15 U. S. C. §79a et seq. In each of these other statutes, the definition of the term “security” includes commercial paper, and each statute contains explicit exceptions where Congress meant for the provisions of an Act not to apply to commercial paper. These explicit exceptions demonstrate congressional cognizance of commercial paper and Congress’ understanding that, unless modified, the use of the term “security” encompasses it.
The Securities Act of 1933, for example, defines the term “security” to include “any note.” 15 U. S. C. §77b(1). During the hearings on that Act, Senator Glass expressed dissatisfaction with that definition because it plainly did encompass commercial paper. With the support of the Board, he sought to amend the definition of the term to exclude commercial paper, but Congress chose instead to exempt commercial paper from only the registration requirements of the statute, see 15 U. S. C. §77c(a)(3), while preserving application of the statute’s antifraud provisions to all commercial-paper “securities.” §§77i, 77q(c). Congress passed the Glass-Steagall Act two weeks later, and throughout consideration of that Act by the same Committees of the same Congress, the eponymous Senator Glass displayed no similar concern over the ordinary meaning of the broad phrase “notes... or other securities” in §21.
The difficulty with the Board’s attempt to narrow the ordinary meaning of the statutory language is evidenced by the Board’s unsuccessful efforts to articulate a meaningful distinction between notes that the Act purportedly covers and those it does not. In other statutes in which commercial paper is exempted from securities regulation, Congress either has identified a particular feature, such as maturity period, that defines the exempted class of “notes,” or it has authorized a federal agency to define it through regulation. See n. 7, supra. The Glass-Steagall Act does neither, and the efforts by the Board and the Court of Appeals to provide a workable definition that excludes commercial paper have been fraught with uncertainty and inconsistency. The Court of Appeals concluded that the Act applies only to notes that are issued “to raise money available for an extended period of time as part of the corporation’s capital structure.” 693 F. 2d, at 143. It is not clear that such a distinction finds support even with reference to the statutory language from which it purportedly derives. There is no requirement, for example, that stocks, bonds, and debentures be used only to meet the capital requirements of a corporation, and, even if there were, the legislative history provides little evidence to suggest that such a distinction was one that Congress found significant.
The Board, in contrast, seems to have concluded that a note is covered by the Act only if the note is properly viewed as an “investment.” The Board contends that this approach requires it to consider a “cluster” of the note’s features, see Brief for Respondents 34, n. 60, such as its maturity period, its risk features, and its prospective purchasers. Stocks, bonds, and debentures display a wide range of each of these characteristics, however, and the Act’s underwriting prohibition does not demonstrate any sensitivity to the characteristics of a particular issue; the Act simply prohibits commercial banks from underwriting them all. Without some clearer directive from Congress that it intended the statutory terms to involve the nebulous inquiry described by the Board, we cannot endorse the Board’s departure from the literal meaning of the Act. The Court, in another context, has said pertinently: “Had Congress intended so fundamental a distinction, it would have expressed that intent clearly in the statutory language or the legislative history. It did not do so, however, and it is not this Court’s function ‘to sit as a super-legislature,’ Griswold v. Connecticut, 381 U. S. 479, 482 (1965), and create statutory distinctions where none were intended.” American Tobacco Co. v. Patterson, 456 U. S. 63, 72, n. 6 (1982).
In this respect, we find ourselves in substantial agreement with petitioners’ suggestion that the Board’s interpretation effectively converts a portion of the Act’s broad prohibition into a system of administrative regulation. By concluding that commercial paper is not covered by the Act, the Board in effect has obtained authority to regulate the marketing of commercial paper under its general supervisory power over member banks. The Board acknowledges that “the sale of third party commercial paper by a commercial bank could involve, at least in some circumstances, practices that are not consistent with principles of safe banking.” Board Statement, App. 141A. In response to these concerns, the Board issued guidelines for state member banks explaining the circumstances in which they properly may place the commercial paper of third parties. See n. 2, supra.
Although the guidelines may be a sufficient regulatory response to the potential problems, Congress rejected a regulatory approach when it drafted the statute, and it has adhered to that rejection ever since. In 1935, for example, Congress refused to amend the Act to permit “national banks under regulations by the Comptroller of the Currency... to underwrite and sell bonds, debentures, and notes.” H. R. Conf. Rep. No. 1822, 74th Cong., 1st Sess., 53 (1935). As recently as 1980, Congress extended to the Comptroller of the Currency authority to issue such rules as were needed to “carry out the responsibilities of the office,” but expressly continued to withhold from the Comptroller the authority to issue regulations concerning “securities activities of National Banks under the Act commonly known as the ‘Glass-Steagall Act.’ ” Depository Institutions Deregulation and Monetary Control Act of 1980, § 708, 94 Stat. 188, 12 U. S. C. § 93a. When Congress has concluded that a particular form of notes should not be covered by the Act’s prohibitions, it has amended the statute accordingly. See Banking Act of 1935, § 303(a), 49 Stat. 707, 12 U. S. C. § 378(a)(1) (exempting mortgage notes from the coverage of § 21). In the face of Congress’ refusal to give the Board any rulemaking authority over the activities prohibited by the Act, we find it difficult to imagine that Congress intended the Board to engage in the subtle and ad hoc “functional analysis” described by the Board.
D
By focusing entirely on the nature of the financial instrument and ignoring the role of the bank in the transaction, moreover, the Board’s “functional analysis” misapprehends Congress’ concerns with commercial bank involvement in marketing securities. Both the Board and the Court of Appeals emphasized that Congress designed the Act to prevent future bank losses arising out of investments in speculative, long-term investments. This description of the Act’s underlying concerns is perhaps accurate but somewhat incomplete. “[I]n enacting the Glass-Steagall Act, Congress contemplated other hazards in addition to the danger of banks using bank assets in imprudent securities investments.” ICI, 450 U. S., at 66. The concern about commercial-bank underwriting activities derived from the perception that the role of a bank as a promoter of securities was fundamentally incompatible with its role as a disinterested lender and adviser. This Court explained in Camp:
“In sum, Congress acted to keep commercial banks out of the investment banking business largely because it believed that the promotional incentives of investment banking and the investment banker’s pecuniary stake in the success of particular investment opportunities was destructive of prudent and disinterested commercial banking and of public confidence in the commercial banking system.” 401 U. S., at 634.
At the administrative level, the Board expressly chose not to consider whether these concerns are present when a commercial bank has a pecuniary interest in promoting commercial paper. Board Statement, App. 140A. Although the Board indicates before this Court that such activities do not implicate the concerns of the Act, we are unpersuaded by this belated assertion. In adopting the Act, for example, Congress concluded that a bank’s “salesman’s interest” in an offering “might impair its ability to function as an impartial source of credit.” Camp, 401 U. S., at 631. In the commercial-paper market, where the distribution of an issue depends heavily on the creditworthiness of the issuer, a bank presumably can enhance the marketability of an issue by extending backup credit to the issuer. Similarly, as a commercial bank finds itself in direct competition with other commercial-paper dealers, it may feel pressure to purchase unsold notes in order to demonstrate the reliability of its distribution system, even if the paper does not meet the bank’s normal credit standards. Recognizing these pressures, this Court stated in Camp: “When a bank puts itself in competition with [securities dealers], the bank must make an accommodation to the kind of ground rules that Congress firmly concluded could not be prudently mixed with the business of commercial banking.” Id., at 637.
The 1933 Congress also was concerned that banks might use their relationships with depositors to facilitate the distribution of securities in which the bank has an interest, and that the bank’s depositors might lose confidence in the bank if the issuer should default on its obligations. See id., at 631; 1931 Hearings, pt. 7, p. 1064. This concern would appear fully applicable to commercial-paper sales, because banks presumably will use their depositor lists as a prime source of customers for such sales. To the extent that a bank sells commercial paper to large bank depositors, the result of a loss of confidence in the bank would be especially severe.
By giving banks a pecuniary incentive in the marketing of a particular security, commercial-bank dealing in commercial paper also seems to produce precisely the conflict of interest that Congress feared would impair a commercial bank’s ability to act as a source of disinterested financial advice. Senator Bulkley, during the debates on the Act, explained:
“Obviously, the banker who has nothing to sell to his depositors is much better qualified to advise disinterestedly and to regard diligently the safety of depositors than the banker who uses the list of depositors in his savings department to distribute circulars concerning the advantages of this, that, or the other investment on which the bank is to receive an originating profit or an underwriting profit or a distribution profit or a trading profit or any combination of such profits.” 75 Cong. Ree. 9912 (1932).
This conflict of interest becomes especially acute if a bank decides to distribute commercial paper on behalf of an issuer who intends to use the proceeds of the offering to retire a debt that the issuer owes the bank.
In addressing these concerns before this Court, the Board focuses primarily on the extremely low rate of default on prime-quality commercial paper. We do not doubt that the risk of default with commercial paper is relatively low — lower perhaps than with many bank loans. For several reasons, however, we find reliance on this characteristic misplaced. First, it is not clear that the Board’s exemption of commercial paper from the proscriptions of the Act is limited to commercial paper that is “prime.” The statutory language admits of no distinction in this respect, and the logic of the Board’s opinion must exempt all commercial paper from the prohibition on underwriting by commercial banks. Second, as described above, it appears that a bank can make a particular issue “prime” simply by extending backup credit to the issuer. Such a practice would seem to fit squarely within Congress’ concern that banks would use their credit facilities to aid in the distribution of securities.
More importantly, however, there is little evidence to suggest that Congress intended the Act’s prohibitions on underwriting to depend on the safety of particular securities. Stocks, bonds, and debentures exhibit the full range of risk; some are less risky than many of the loans made by a bank. And while the risk features of a security presumably affect whether it qualifies as an “investment security” that a commercial bank may purchase for its own account, the Act’s underwriting prohibition displays no appreciation for the features of a particular issue; the Act just prohibits commercial banks from underwriting any of them, with an exception for certain enumerated governmental obligations that Congress specifically has chosen to favor. See 12 U. S. C. §24 Seventh. The Act’s prophylactic prohibition on underwriting reflects Congress’ conclusion that the mere existence of a securities operation, “ ‘no matter how carefully and conservatively run, is inconsistent with the best interests’” of the bank as a whole. 75 Cong. Rec. 9913 (1932) (remarks of Sen. Bulkley, quoting a statement issued by the Bank of Manhattan Trust Co.).
In this regard, the Board’s focus on the fact that commercial banks traditionally have acquired commercial paper for their own accounts is beside the point. It is clearly true, as the Board asserts before this Court, that Congress designed the Glass-Steagall Act to cause banks to invest more of their funds in short-term obligations like commercial paper instead of in longer term and more speculative securities. By so doing, Congress hoped to enhance the liquidity of funds and protect bank solvency. But the authority to discount commercial paper is very different from the authority to underwrite it. The former places banks in their traditional role as a prudent lender. The latter places a commercial bank in the role of an investment banker, which is precisely what Congress sought to prohibit in the Act. See Note, A Conduct-Oriented Approach to the Glass-Steagall Act, 91 Yale L. J. 102 (1981); Comment, 9 J. Corp. L. 321 (1984).
The Board also seeks comfort in the fact that commercial paper is sold largely to “sophisticated” investors. Once again, however, the Act leaves little room for such an ad hoc analysis. In its prohibition on commercial-bank underwriting, the Act admits
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_jurisdiction
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ.
SALAZAR, SECRETARY OF THE INTERIOR, et al. v. BUONO
No. 08-472.
Argued October 7, 2009
Decided April 28, 2010
Kennedy, J., announced the judgment of the Court and delivered an opinion, in which Roberts, C. J., joined, and in which Auto, J., joined in part. Roberts, C. J., filed a concurring opinion, post, p. 723. Auto, J., filed an opinion concurring in part and concurring in the judgment, post, p. 723. Scalia, J., filed an opinion concurring in the judgment, in which Thomas, J., joined, post, p. 729. Stevens, J., filed a dissenting opinion, in which Ginsburg and Sotomayor, JJ., joined, post, p. 735. Breyer, J., filed a dissenting opinion, post, p. 760.
Solicitor General Kagan argued the cause for petitioners. With her on the briefs were Acting Assistant Attorney General Cruden, Deputy Solicitor General Katyal, Jeffrey B. Wall, Andrew C. Mergen, Charles R. Shockey, and Kathryn E. Kovacs.
Peter J. Eliasberg argued the cause for respondent. With him on the brief were Steven R. Shapiro, Michael C. Small, Daniel Mach, and William B. Rubenstein.
Briefs of amici curiae urging reversal were filed for the State of Indiana et al. by Gregory F Zoeller, Attorney General of Indiana, Thomas M. Fisher, Solicitor General, and Heather L. Hagan and Ashley E. Tatman, Deputy Attorneys General, by Richard A. Svobodny, Acting Attorney General of Alaska, and by the Attorneys General for their respective States as follows: Troy King of Alabama, John W. Suthers of Colorado, Bill McCollum of Florida, Lawrence G. Wasden of Idaho, James D. “Buddy” Caldwell of Louisiana, Michael A. Cox of Michigan, Henry McMaster of South Carolina, Greg Abbott of Texas, and Mark L. Shurtlejf of Utah; for the American Center for Law and Justice et al. by Jay Alan Sekulow, Stuart J. Roth, Colby M. May, James M. Henderson, Sr., Walter M. Weber, John P. Tuskey, and Laura B. Hernandez; for the American Legion Department of California by Benjamin W. Bull, Joseph P. Infranco, and Robert H. Tyler; for the Becket Fund for Religious Liberty by Kevin J. Hasson, Eric C. Rassbach, and Hannah C. Smith; for the Boy Scouts of America by George A. Davidson, Carla A Kerr, Scott H. Christensen, and David K Park; for the Christian Legal Society et al. by Carl H. Esbeck; for Citizens United et al. by Darrin R. Toney, John N. Childs, and Michael Boos; for the Eagle Forum Education and Legal Defense Fund by Douglas G. Smith; for Faith and Action et al. by Bernard P. Reese, Jr.; for the Foundation for Free Expression by James L. Hirsen and Deborah J. Dewart; for the Foundation for Moral Law by John A Eidsmoe and Benjamin D. DuPré; for the International Municipal Lawyers Association by Robert N. Driscoll; for the National Legal Foundation by Steven W. Fitschen; for the Thomas More Law Center et al. by Robert Joseph Muise, Charles S. LiMandri, and Manuel S. Klausner; for the Utah Highway Patrol Association et al. by Michael A. Sink and Frank D. Mylar, Jr.; and for Veterans of Foreign Wars of the United States et al. by Kelly J. Shackelford, Hiram, S. Sasser III, R. Ted Cruz, Allyson N. Ho, Aaron Streett, Samuel Burk, Philip B. Onderdonk, Jr., Daniel J. Murphy, Chad M. Pinson, and James A. Clark. A brief of amici curiae urging vacation was filed for Public Employees for Environmental Responsibility et al. by Sri Srinivasan and Irving L. Gornstein.
Briefs of amici curiae urging affirmance were filed for the American Humanist Association et al. by Robert V. Ritter and Elizabeth L. Hileman; for the American Jewish Congress et al. by Andrew J. Pincus, Marc D. Stem, and Kara H. Stein; for the American Muslim Armed Forces and Veterans Affairs Council et al. by Douglas Laycock; for Americans United for Separation of Church and State et al. by Ayesha N. Khan, Richard B. Katskee, Steven M. Freeman, Steven C. Sheinberg, Pedro L. Irigonegaray, Margery F. Baker, and Mark J. Pelavin; for the Baptist Joint Committee for Religious Liberty et al. by Stephen B. Kinnaird, James W. Gilliam, and K Hollyn Hollman; for the Center for Inquiry by Daniel S. Pariser, Ronald A Lindsay, and Derek C. Araujo; for David Antoon et al. by Elaine J. Goldenberg; for the Freedom from Religion Foundation by Richard L. Bolton; and for Jewish War Veterans of the United States of America, Inc., by A Stephen Hut, Jr.
Briefs of amici curiae were filed for the American Civil Rights Union by Peter J. Ferrara; for the Fidelis Center for Law & Policy et al. by Patrick T. Gillen; for the Jewish Social Policy Action Network by Theodore R. Mann, Judah I. Labovitz, and Jeffrey I. Pasek; and for Liberty Counsel by Mathew D. Staver, Anita L. Staver, Stephen M. Crampton, and Mary E. McAlister.
Justice Kennedy
announced the judgment of the Court and delivered an opinion, in which The Chief Justice joins and Justice Alito joins in part.
In 1934, private citizens placed a Latin cross on a rock outcropping in a remote section of the Mojave Desert. Their purpose and intent was to honor American soldiers who fell in World War I The original cross deteriorated over time, but a reconstructed one now stands at the same place. It is on federal land.
The Court is asked to consider a challenge, not to the first placement of the cross or its continued presence on federal land, but to a statute that would transfer the cross and the land on which it stands to a private party. Department of Defense Appropriations Act, 2004, Pub. L. 108-87, § 8121(a), 117 Stat. 1100. The District Court permanently enjoined the Government from implementing the statute. The Court of Appeals affirmed. We conclude that its judgment was in error.
I
A
The Mojave National Preserve (Preserve) spans approximately 1.6 million acres in southeastern California. The Preserve is nestled within the Mojave Desert, whose picturesque but rugged territory comprises 25,000 square miles, exceeding in size the combined area of the Nation’s five smallest States. See Merriam-Webster's Geographical Dictionary 755, 1228-1280 (3d ed. 1997). Just over 90 percent of the land in the Preserve is federally owned, with the rest owned either by the State of California or by private parties. The National Park Service, a division of the Department of the Interior, administers the Preserve as part of the National Park System. 16 U. S. C. §§410aaa-41 and 410aaa-46.
Sunrise Rock is a granite outcropping located within the Preserve. Sunrise Rock and the area in its immediate vicinity are federal land, but two private ranches are located less than two miles away. The record does not indicate whether fencing is used to mark the boundary of these ranches. In 1934, members of the Veterans of Foreign Wars (VFW) mounted a Latin cross on the rock as a memorial to soldiers who died in World War I. A Latin cross consists of two bars — a vertical one and a shorter, horizontal one. The cross has been replaced or repaired at various times over the years, most recently in 1998 by Henry Sandoz. Sandoz is a private citizen who owns land elsewhere in the Preserve, a portion of which he is prepared to transfer to the Government in return for its conveyance to the VFW of the land on which the cross stands, all pursuant to the statute now under review.
The cross, as built by Sandoz, consists of 4-inch diameter metal pipes painted white. The vertical bar is less than eight feet tall. It cannot be seen from the nearest highway, which lies more than 10 miles away. It is visible, however, from Cima Road, a narrow stretch of blacktop that comes within 100 feet of Sunrise Rock.
The cross has been a gathering place for Easter services since it was first put in place; and Sunrise Rock and its immediate area continue to be used as a campsite. At one time the cross was accompanied by wooden signs stating “‘The Cross, Erected in Memory of the Dead of All Wars,’ and ‘Erected 1934 by Members of Veterans of Foregin [sic] Wars, Death Valley post 2884/ ” Buono v. Kempthorne, 527 F. 3d 758, 769 (CA9 2008). The signs have since disappeared, and the cross now stands unmarked.
B
Frank Buono, respondent here, is a retired Park Service employee who makes regular visits to the Preserve. Buono claims to be offended by the presence of a religious symbol on federal land. He filed suit in the United States District Court for the Central District of California. He alleged a violation of the Establishment Clause of the First Amendment and sought an injunction requiring the Government to remove the cross.
The litigation proceeded in what can be described as four stages. In the first, the District Court ruled in Buono’s favor on opposing motions for summary judgment. Buono v. Norton, 212 F. Supp. 2d 1202 (2002) (Buono I). As an initial matter, the court found that Buono had standing to maintain his Establishment Clause challenge. Id., at 1210-1214. On the merits, the parties agreed that the dispute should be governed by the so-called Lemon test, which the District Court formulated as follows:
“A government religious practice or symbol will survive an Establishment Clause challenge when it (1) has a secular purpose, (2) has a primary effect that neither advances nor inhibits religion, and (3) does not foster excessive state entanglement with religion.” Buono I, supra, at 1214-1215 (citing Lemon v. Kurtzman, 403 U. S. 602, 612-613 (1971)).
The court expressly declined to consider whether the Government’s actions regarding the cross had a secular purpose, 212 F. Supp. 2d, at 1214-1215, or whether they caused excessive entanglement with religion, id., at 1217, n. 9. Instead, the court evaluated the primary effect of the cross by asking how it would be viewed by a “reasonable observer.” Id., at 1216. Concluding that presence of the cross on federal land conveyed an impression of governmental endorsement of religion, the court granted Buono’s request for injunctive relief. The court’s order in Buono I (2002 injunction) permanently forbade the Government “from permitting the display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve.” App. to Pet. for Cert. 146a.
The United States Court of Appeals for the Ninth Circuit stayed the 2002 injunction to the extent that it required the cross to be removed or dismantled but did not forbid alternative methods of complying with the order. The Government covered the cross, first with a tarpaulin and later with a plywood box.
On appeal, the judgment of the District Court was affirmed, both as to standing and on the merits of Buono’s Establishment Clause challenge. Buono v. Norton, 371 F. 3d 543 (CA9 2004) (Buono II). Like the District Court, the Court of Appeals did not decide whether the Government’s action, or nonaction, with respect to the cross had been motivated by a secular purpose. Id., at 550. Its ruling was based instead on the conclusion that a reasonable observer would perceive a cross on federal land as governmental endorsement of religion. Id., at 549-550. The Government did not seek review by this Court, so that the judgment of the Court of Appeals in Buono II became final.
C
During the relevant proceedings, Congress enacted certain statutes related to the cross:
(1) Before Buono I was filed, Congress passed an appropriations bill that included a provision forbidding the use of governmental funds to remove the cross. Consolidated Appropriations Act, 2001, Pub. L. 106-554, §133, 114 Stat. 2763A-230.
(2) While Buono I was pending before the District Court, Congress designated the cross and its adjoining land “as a national memorial commemorating United States participation in World War I and honoring the American veterans of that war.” Department of Defense Appropriations Act, 2002, Pub. L. 107-117, § 8137(a), 115 Stat. 2278. The Secretary of the Interior was directed to expend up to $10,000 to acquire a replica of the original cross and its memorial plaque and to install the plaque at a suitable nearby location. § 8137(c).
(3) Three months after Buono I was decided, Congress again prohibited the spending of governmental funds to remove the cross. Department of Defense Appropriations Act, 2003, Pub. L. 107-248, § 8065(b), 116 Stat. 1551.
(4) While the Government’s appeal in Buono II was pending, Congress passed a statute (land-transfer statute) directing the Secretary of the Interior to transfer to the VFW the Government’s interest in the land that had been designated a national memorial. Department of Defense Appropriations Act, 2004, § 8121(a), 117 Stat. 1100. In exchange, the Government was to receive land elsewhere in the preserve from Henry Sandoz and his wife. Ibid. Any difference in value between the two parcels would be equalized through a cash payment. §§ 8121(c), (d). The land-transfer statute provided that the property would revert to the Government if not maintained “as a memorial commemorating United States participation in World War I and honoring the American veterans of that war.” § 8121(e). The statute presents a central issue in this case.
The Court of Appeals in Buono II did not address the effect on the suit of a potential land transfer under the statute. The court noted that the transfer might “take as long as two years to complete,” 371 F. 3d, at 545, and that its effect was not yet known, id., at 545-546. The court thus “expressed] no view as to whether a transfer completed under [the statute] would pass constitutional muster.” Id., at 546.
D
After the Court of Appeals affirmed in Buono II, Buono returned to the District Court seeking to prevent the land transfer. He sought injunctive relief against the transfer, either through enforcement or modification of the 2002 injunction. In evaluating his request the trial court described the relevant question as whether the land transfer was a bona fide attempt to comply with the injunction (as the Government claimed), or a sham aimed at keeping the cross in place (as Buono claimed). Buono v. Norton, 364 F. Supp. 2d 1175, 1178 (CD Cal. 2005) (Buono III). In Buono III, the court did not consider whether the transfer itself was an “independent violation of the Establishment Clause.” Id., at 1182, n. 8. The court nevertheless concluded that the transfer was an attempt by the Government to keep the cross atop Sunrise Rock and so was invalid. The court granted Buono’s motion to enforce the 2002 injunction; denied as moot his motion to amend it; and permanently enjoined the Government from implementing the land-transfer statute. Id., at 1182.
The Court of Appeals again affirmed, largely following the reasoning of the District Court. Buono v. Kempthome, 502 F. 3d 1069 (CA9 2007). The Government’s motion for rehearing en banc was denied over a dissent by Judge O’Scannlain, 527 F. 3d 758, and this Court granted certiorari, 555 U. S. 1169 (2009).
II
Before considering the District Court’s order on the merits, the first inquiry must be with respect to Buono’s standing to maintain this action. To demonstrate standing, a plaintiff must have “alleged such a personal stake in the outcome of the controversy as to warrant his invocation of federal-court jurisdiction.” Horne v. Flores, 557 U. S. 433, 445 (2009) (internal quotation marks omitted). The Government argues that Buono’s asserted injury is not personal to him and so does not confer Article III standing. As noted above, Buono does not find the cross itself objectionable but instead takes offense at the presence of a religious symbol on federal land. Buono does not claim that, as a personal matter, he has been made to feel excluded or coerced, and so, the Government contends, he cannot object to the presence of the cross. Brief for Petitioners 12-17.
Whatever the validity of the objection to Buono’s standing, that argument is not available to the Government at this stage of the litigation. When Buono moved the District Court in Buono I for an injunction requiring the removal of the cross, the Government raised the same standing objections it proffers now. Rejecting the Government’s position, the District Court entered a judgment in Buono’s favor, which the Court of Appeals affirmed in Buono II. The Government did not seek review in this Court. The judgment became final and unreviewable upon the expiration of the 90-day deadline under 28 U. S. C. § 2101(c) for filing a petition for certiorari. Toledo Scale Co. v. Computing Scale Co., 261 U. S. 399, 418 (1923); see Missouri v. Jenkins, 495 U. S. 33, 45 (1990) (90-day deadline is “mandatory and jurisdictional”). The Government cannot now contest Buono’s standing to obtain the final judgment in Buono I.
Of course, even though the Court may not reconsider whether Buono had standing to seek the 2002 injunction, it is still necessary to evaluate his standing in Buono III to seek application of the injunction against the land-transfer statute. That measure of relief is embodied in the judgment upon which we granted review.
This was a measure of relief that Buono had standing to seek. A party that obtains a judgment in its favor acquires a “judicially cognizable” interest in ensuring compliance with that judgment. See Allen v. Wright, 468 U. S. 737, 763 (1984) (plaintiffs’ right to enforce a desegregation decree to which they were parties is “a personal interest, created by law, in having the State refrain from taking specific actions”). Having obtained a final judgment granting relief on his claims, Buono had standing to seek its vindication.
The Government does not deny this proposition as a general matter. Instead, it argues that Buono was not seeking to vindicate — but rather to extend — the 2002 injunction. The first injunction prohibited the Government from maintaining the cross on Sunrise Rock; yet in Buono III he sought to preclude the land transfer, a different governmental action. The Government contends that Buono lacked standing to seek this additional relief. Reply Brief for Petitioners 5.
The Government’s argument, however, is properly addressed to the relief granted by the judgment below, not to Buono’s standing to seek that relief. The Government has challenged whether appropriate relief was granted in Buono III in light of the relevant considerations and legal principles, and we shall consider these questions. The standing inquiry, by contrast, turns on the alleged injury that prompted the plaintiff to invoke the court’s jurisdiction in the first place. Buono’s entitlement to an injunction having been established in Buono I and II, he sought in Buono III to prevent the Government from frustrating or evading that injunction. Based on the rights he obtained under the earlier decree — against the same party, regarding the same cross and the same land — his interests in doing so were sufficiently personal and concrete to support his standing. Although Buono also argued that the land transfer should be prohibited as an “independent” Establishment Clause violation, the District Court did not address or order relief on that claim, which is not before us. Buono III, 364 F. Supp. 2d, at 1182, n. 8. This is not a case in which a party seeks to import a previous standing determination into a wholly different dispute.
In arguing that Buono sought to extend, rather than to enforce, the 2002 injunction, the Government in essence contends that the injunction did not provide a basis for the District Court to invalidate the land transfer. This is not an argument about standing but about the merits of the District Court’s order. Those points now must be addressed.
Ill
The procedural history of this litigation must be considered to identify the issues now subject to review. The District Court granted the 2002 injunction after concluding that a cross on federal land violated the Establishment Clause. The Government unsuccessfully challenged that conclusion on appeal, and the judgment became final upon completion of direct review. At that point, the judgment “became res judicata to the parties and those in privity with them, not only as to every matter which was offered and received to sustain or defeat the claim or demand, but as to any other admissible matter which might have been offered for that purpose.” Travelers Indemnity Co. v. Bailey, 557 U. S. 137, 152 (2009) (internal quotation marks omitted). The Government therefore does not — and could not — ask this Court to reconsider the propriety of the 2002 injunction or the District Court’s reasons for granting it.
The question now before the Court is whether the District Court properly enjoined the Government from implementing the land-transfer statute. The District Court did not consider whether the statute, in isolation, would have violated the Establishment Clause, and it did not forbid the land transfer as an independent constitutional violation. Buono III, supra, at 1182, n. 8. Rather, the court enjoined compliance with the statute on the premise that the relief was necessary to protect the rights Buono had secured through the 2002 injunction.
An injunction is an exercise of a court’s equitable authority, to be ordered only after taking into account all of the circumstances that bear on the need for prospective relief. See United States v. Swift & Co., 286 U. S. 106, 114 (1932). See also Weinberger v. Romero-Barcelo, 456 U. S. 305, 312 (1982); Hecht Co. v. Bowles, 321 U. S. 321, 329 (1944); 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2942, pp. 39-42 (2d ed. 1995) (hereinafter Wright & Miller). Equitable relief is not granted as a matter of course, see Weinberger, 456 U. S., at 311-312, and a court should be particularly cautious when contemplating relief that implicates public interests, see id., at 312 (“In exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction”); Harrisonville v. W. S. Dickey Clay Mfg. Co., 289 U. S. 334, 338 (1933) (“Where an important public interest would be prejudiced, the reasons for denying the injunction may be compelling”). Because injunctive relief “is drafted in light of what the court believes will be the future course of events,... a court must never ignore significant changes in the law or circumstances underlying an injunction lest the decree be turned into an ‘instrument of wrong.’” Wright & Miller §2961, at 393-394 (quoting Swift & Co., supra, at 115).
Here, the District Court did not engage in the appropriate inquiry. The land-transfer statute was a substantial change in circumstances bearing on the propriety of the requested relief. The court, however, did not acknowledge the statute’s significance. It examined the events that led to the statute’s enactment and found an intent to prevent removal of the cross. Deeming this intent illegitimate, the court concluded that nothing of moment had changed. This was error. Even assuming that the land-transfer statute was an attempt to prevent removal of the cross, it does not follow that an injunction against its implementation was appropriate.
By dismissing Congress’ motives as illicit, the District Court took insufficient account of the context in which the statute was enacted and the reasons for its passage. Private citizens put the cross on Sunrise Rock to commemorate American servicemen who had died in World War I. Although certainly a Christian symbol, the cross was not em-placed on Sunrise Rock to promote a Christian message. Cf. County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 661 (1989) (Kennedy, J., concurring in judgment in part and dissenting in part) (“[T]he [Establishment] Clause forbids a city to permit the permanent erection of a large Latin cross on the roof of city hall... because such an obtrusive year-round religious display would place the government’s weight behind an obvious effort to proselytize on behalf of a particular religion”). Placement of the cross on Government-owned land was not an attempt to set the imprimatur of the state on a particular creed. Rather, those who erected the cross intended simply to honor our Nation’s fallen soldiers. See Brief for VFW et al. as Amici Curiae 15 (noting that the plaque accompanying the cross “was decorated with VFW decals”).
Time also has played its role. The cross had stood on Sunrise Rock for nearly seven decades before the statute was enacted. By then, the cross and the cause it commemorated had become entwined in the public consciousness. See ibid. Members of the public gathered regularly at Sunrise Rock to pay their respects. Rather than let the cross deteriorate, community members repeatedly took it upon themselves to replace it. Congress ultimately designated the cross as a national memorial, ranking it among those monuments honoring the noble sacrifices that constitute our national heritage. See note following 16 U. S. C. § 481 (listing officially designated national memorials, including the National D-Day Memorial and the Vietnam Veterans Memorial). Research discloses no other national memorial honoring American soldiers — more than 300,000 of them — who were killed or wounded in World War I. See generally A. Leland & M. Oboroceanu, Congressional Research Service Report for Congress, American War and Military Operations Casualties: Lists and Statistics 2 (2009). It is reasonable to interpret the congressional designation as giving recognition to the historical meaning that the cross had attained. Cf. Van Orden v. Perry, 545 U. S. 677, 702-703 (2005) (Breyer, J., concurring in judgment) (“40 years” without legal challenge to a Ten Commandments display “suggest that the public visiting the [surrounding] grounds has considered the religious aspect of the tablets’ message as part of what is a broader moral and historical message reflective of a cultural heritage”).
The 2002 injunction thus presented the Government with a dilemma. It could not maintain the cross without violating the injunction, but it could not remove the cross without conveying disrespect for those the cross was seen as honoring. Cf. id., at 704 (to invalidate a longstanding Ten Commandments display might “create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid”). Deeming neither alternative to be satisfactory, Congress enacted the statute here at issue. Congress, of course, may not use its legislative powers to reopen final judgments. See Plant v. Spendthrift Farm, Inc., 514 U. S. 211, 225-226 (1995). That principle, however, was not a bar to this statute. The Government’s right to transfer the land was not adjudicated in Buono I or compromised by the 2002 injunction.
In belittling the Government’s efforts as an attempt to “evade” the injunction, Buono III, 364 F. Supp. 2d, at 1182, the District Court had things backwards. Congress’ prerogative to balance opposing interests and its institutional competence to do so provide one of the principal reasons for deference to its policy determinations. See Patsy v. Board of Regents of Fla., 457 U. S. 496, 513 (1982). Here, Congress adopted a policy with respect to land it now owns in order to resolve a specific controversy. Congress, the Executive, and the Judiciary all have a duty to support and defend the Constitution. See United States v. Nixon, 418 U. S. 683, 703 (1974) (“In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution, and the interpretation of its powers by any branch is due great respect from the others”). The land-transfer statute embodies Congress’ legislative judgment that this dispute is best resolved through a framework and policy of accommodation for a symbol that, while challenged under the Establishment Clause, has complex meaning beyond the expression of religious views. That judgment should not have been dismissed as an evasion, for the statute brought about a change of law and a congressional statement of policy applicable to the case.
Buono maintains that any governmental interest in keeping the cross up must cede to the constitutional concerns on which the 2002 injunction was based. He argues that the land transfer would be “an incomplete remedy” to the constitutional violation underlying the injunction and that the transfer would make achieving a proper remedy more difficult. Brief for Respondent 54.
A court must find prospective relief that fits the remedy to the wrong or injury that has been established. See Swift & Co., 286 U. S., at 114 (“A continuing decree of injunction directed to events to come is subject always to adaptation as events may shape the need”). See also United States v. United Shoe Machinery Corp., 391 U. S. 244, 249 (1968). Where legislative action has undermined the basis upon which relief has previously been granted, a court must consider whether the original finding of wrongdoing continues to justify the court’s intervention. See Railway Employees v. Wright, 364 U. S. 642, 648-649 (1961); Pennsylvania v. Wheeling & Belmont Bridge Co., 18 How. 421, 430-432 (1856). The relevant question is whether an ongoing exercise of the court’s equitable authority is supported by the prior showing of illegality, judged against the claim that changed circumstances have rendered prospective relief inappropriate.
The District Court granted the 2002 injunction based solely on its conclusion that presence of the cross on federal land conveyed an impression of governmental endorsement of religion. The court expressly disavowed any inquiry into whether the Government’s actions had a secular purpose or caused excessive entanglement. Buono I, 212 F. Supp. 2d, at 1215, 1217, n. 9. The Court of Appeals affirmed the injunction on the same grounds, similarly eschewing any scrutiny of governmental purpose. Buono II, 371 F. 3d, at 550.
Although, for purposes of the opinion, the propriety of the 2002 injunction may be assumed, the following discussion should not be read to suggest this Court’s agreement with that judgment, some aspects of which may be questionable. The goal of avoiding governmental endorsement does not require eradication of all religious symbols in the public realm. A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs. The Constitution does not oblige government to avoid any public acknowledgment of religion’s role in society. See Lee v. Weisman, 505 U. S. 577, 598 (1992) (“A relentless and all-pervasive attempt to exclude religion from every aspect of public life could itself become inconsistent with the Constitution”). See also Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 334 (1987) (“This Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause” (internal quotation marks omitted)). Rather, it leaves room to accommodate divergent values within a constitutionally permissible framework.
Even assuming the propriety of the original relief, however, the question before the District Court in Buono III was whether to invalidate the land transfer. Given the sole reliance on perception as a basis for the 2002 injunction, one would expeet that any relief grounded on that decree would have rested on the same basis. But the District Court enjoined the land transfer on an entirely different basis: its suspicion of an illicit governmental purpose. See Buono III, 364 F. Supp. 2d, at 1182. The court made no inquiry into the effect that knowledge of the transfer of the land to private ownership would have had on any perceived governmental endorsement of religion, the harm to which the 2002 injunction was addressed. The District Court thus used an injunction granted for one reason as the basis for enjoining conduct that was alleged to be objectionable for a different reason. Ordering relief under such circumstances was improper — absent a finding that the relief was necessary to address an independent wrong. See ibid., n. 8 (noting that the court “need not consider [Buono’s] other contention that the land transfer itself is an independent violation of the Establishment Clause”).
The District Court should have evaluated Buono’s modification request in light of the objectives of the 2002 injunction. The injunction was issued to address the impression conveyed by the cross on federal, not private, land. Even if its purpose were characterized more generally as avoiding the perception of governmental endorsement, that purpose would favor — or at least not oppose — ownership of the cross by a private party rather than by the Government. Cf. Pleasant Grove City v. Summum, 555 U. S. 460, 471 (2009) (“[Pjersons who observe donated monuments routinely — and reasonably — interpret them as conveying some message on the property owner’s behalf”).
Buono argues that the cross would continue to stand on Sunrise Rock, which has no visual differentiation from the rest of the primarily federally owned Preserve. He also points to the reversionary clause in the land-transfer statute requiring that the land be returned to the Government if not maintained as a World War I memorial. Finally, he notes that the cross remains designated a national memorial by an Act of Congress, which arguably would prevent the VFW from dismantling the cross even if it wanted to do so. Brief for Respondent 37-48.
The District Court failed to consider whether, in light of the change in law and circumstances effected by the land-transfer statute, the “reasonable observer” standard continued to be the appropriate framework through which to consider the Establishment Clause concerns invoked to justify the requested relief As a general matter, courts considering Establishment Clause challenges do not inquire into “reasonable observer” perceptions with respect to objects on private land. Even if, however, this standard were the appropriate one, but see County of Allegheny, 492 U. S., at 668 (Kennedy, J., concurring in judgment in part and dissenting in part) (criticizing the “reasonable observer” test); Capitol Square Review and Advisory Bd. v. Pinette, 515 U. S. 753, 763-768 (1995) (plurality opinion) (criticizing reliance on “perceived endorsement”), it is not clear that Buono’s claim is meritorious. That test requires the hypothetical construct of an objective observer who knows all of the pertinent facts and circumstances surrounding the symbol and its placement. See id., at 780 (O’Connor, J., concurring in part and concurring in judgment). But see id., at 767-768 (plurality opinion) (doubting the workability of the reasonable observer test). Applying this test here, the message conveyed by the cross would be assessed in the context of all relevant factors. See Van Orden, 545 U. S., at 700 (Breyer, J., concurring in judgment)
Question: What is the manner in which the Court took jurisdiction?
A. cert
B. appeal
C. bail
D. certification
E. docketing fee
F. rehearing or restored to calendar for reargument
G. injunction
H. mandamus
I. original
J. prohibition
K. stay
L. writ of error
M. writ of habeas corpus
N. unspecified, other
Answer:
|
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.
CENTRAL ILLINOIS PUBLIC SERVICE CO. v. UNITED STATES
No. 76-1058.
Argued October 12, 1977
Decided February 28, 1978
Blackmun, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Marshall, Powell, Rehnquist, and Stevens, JJ., joined. Brennan, J., filed a concurring opinion, in which Burger, C. J., and Powell, J., joined, post, p. 33. Powell, J., filed a concurring opinion, in which Burger, C. J., joined, post, p. 38. Stewart, J., filed an opinion concurring in the judgment, post, p. 39.
Sharon L. King argued the cause and filed briefs' for petitioner.
Stuart A. Smith argued the cause for the United States. With him on the brief were Solicitor General McCree and Assistant Attorney General Ferguson.
David W. Richmond filed a brief for the American Gas Assn, as amicus curiae.
Mr. Justice Blackmun
delivered the opinion of the Court.
This case presents the issue whether an employer, who in 1963 reimbursed lunch expenses of employees who were on company travel but not away overnight, must withhold federal income tax on those reimbursements. Stated another way, the issue is whether the lunch reimbursements qualify as “wages” under § 3401 (a) of the Internal Revenue Code of 1954, 26 U. S. C. § 3401 (a).
I
The facts are not in any real dispute. Petitioner Central Illinois Public Service Company (Company) is a regulated public utility engaged, in downstate Illinois, in the generation, transmission, distribution, and'sale of electric energy, and in the distribution and sale of natural gas. Its principal office is in Springfield. It serves a geographic area of some size. In order adequately to serve the area, the Company, in accord with long-established policy, reimburses its employees for reasonable, legitimate expenses of transportation, meals, and lodging they incur in travel on the Company’s business. Some of these trips are overnight; on others, the employees return before the end of the business day.
In 1963, the tax year in issue, the Company had approximately 1,900 employees. It reimbursed its union employees and the operating employees of its western division (its only nonunionized division) for noon lunches consumed, while on authorized travel, in an amount not to exceed $1.40 per lunch. The amount was specified in the Company’s collective-bargaining agreement with the union. Other salaried employees were reimbursed for actual reasonable luncheon expenses up to a specified maximum amount.
An employee on an authorized trip prepared his expense account on a company form. This was turned in to his supervisor for approval. The $1.40 rate sometimes was in excess of the actual lunch cost, but at other times it was insufficient to cover that cost. An employee who took lunch from home with him on a company trip was entitled to reimbursement. If, because of the locality of his work assignment on a particular day, the employee went home for lunch, he was not entitled to reimbursement. Many employees were engaged in open-air labor. Even in 1963 the $1.40 rate was “modest.”
The employee on travel status rendered no service to the Company during his lunch. He was off duty and on his own time. He was subject to call, however, as were all employees at any time as emergencies required. The lunch payment was unrelated to the employee’s specific job title, the nature of his work, or his rate of pay. “[T]his lunch payment arrangement was beneficial and convenient for the company and served its business interest. It saved the company employee time otherwise spent in travelling back and forth as well as the usual travel expenses.”
During 1963 the Company paid its employees a total of $139,936.12 in reimbursement for noon lunches consumed while away from normal duty stations on nonovernight trips. It did not withhold federal income tax for its employees with respect to the components of this sum. The Company in 1963, however, did withhold and pay federal income withholding taxes totaling $1,966,489.87 with respect to other employee payments.
Upon audit in 1971, the Internal Revenue Service took the position that the lunch reimbursements in 1963 qualified as wages subject to withholding. A deficiency of $25,188.50 in withholding taxes was assessed. The Company promptly paid this deficiency together with $11,427.22 interest thereon, a total of $36,615.72. It then immediately filed its claim for refund of the total amount so paid and, with no action forthcoming on the claim for six months, see 26 U. S. C. § 6532 (a) (1), instituted this suit in the United States District Court for the Southern District of Illinois to recover the amount so paid.
The District Court ruled in the Company’s favor, holding that the reimbursements in question were not wages subject to withholding.. 405 F. Supp. 748 (1975). The United States Court of Appeals for the Seventh Circuit reversed. 540 F. 2d 300 (1976). Because that decision appeared to be in conflict with the views and decision of the Fourth Circuit in Royster Co. v. United States, 479 F. 2d 387 (1973), we granted certiorari. 431 U. S. 903 (1977).
II
In Commissioner v. Kowalski, 434 U. S. 77 (1977), decided earlier this Term, the Court held that New Jersey’s cash reimbursements to its highway patrol officers for meals consumed while on patrol duty constituted income to the officers, within the broad definition of gross income under § 61 (a) of the 1954 Code, 26 U. S. C. § 61 (a), and, further, that those cash payments were not excludable under § 119 of the Code, 26 U. S. C. § 119, relating to meals or lodging furnished for the convenience of the employer.
Kowalski, however, concerned the federal income tax and the issue of what was income. Its pertinency for the present withholding tax litigation is necessarily confined to the income tax aspects of the lunch reimbursements to the Company’s employees.
The income tax issue is not before us in this case. We are confronted here, instead, with the question whether the lunch reimbursements, even though now they may be held to constitute taxable income to the employees who are reimbursed, are or are not “wages” subject to withholding, within the meaning and requirements of §§ 3401-3403 of the Code, 26 U. S. C. §§3401-3403 (1970 ed. and Supp. V). These withholding statutes are in Subtitle C of the Code. The income tax provisions constitute Subtitle A.
The income tax is imposed on taxable income. 26 IT. S. C. § 1. Generally, this is gross income minus allowable deductions. 26 IT. S. C. § 63 (a). Section 61 (a) defines as gross income “all income from whatever source derived” including, under § 61 (a) (1), “[c]ompensation for services.” The withholding tax, in some contrast, is confined to wages, § 3402 (a), and § 3401 (a) defines as “wages,” “all remuneration (other than fees paid to a public official) for services performed by an employee for his employer, including the cash value of all remuneration paid in any medium other than cash.” The two concepts — income and wages — obviously are not necessarily the same. Wages usually are income, but many items qualify as income and yet clearly are not wages. Interest, rent, and dividends are ready examples. And the very definition of “wages” in § 3401 (a) itself goes on specifically to exclude certain types of remuneration for an employee’s services to his employer (e. g., combat pay, agricultural labor, certain domestic service). Our task, therefore, is to determine the character of the lunch reimbursements in the light of the definition of “wages” in § 3401 (a), and the Company’s consequent obligation to withhold under § 3402 (a).
Before we proceed to the resolution of that issue, however, one further observation about the income tax aspect of lunch reimbursements is in order. Although United States v. Correll, 389 U. S. 299 (1967), restricting to overnight trips the travel expense deduction for meal costs under § 162 (a)(2), dispelled some of the confusion, it is fair to say that until this Court’s very recent decision in Kowalski, the Courts of Appeals have been in disarray on the issue whether, under §§ 61 and 119 of the 1954 Code or under the respective predecessor sections of the 1939 Code, such reimbursements were income at all to the recipients. Thus, even the income tax character of lunch reimbursements was not yet partially clarified before the end of 1967, four full years after the tax year for which withholding taxes on lunch reimbursements are now being claimed from the Company in the present case, and were not entirely clarified until the Kowalski decision a few weeks ago.
Ill
The Sixteenth, or income tax, Amendment to the Constitution of the United States became effective in February 1913. The ensuing Tariff Act of October 3, 1913, § IIE, 38 Stat. 170, contained, perhaps somewhat surprisingly, a fairly expansive withholding provision. This, however, was repealed and in due course came to be replaced with the predecessor of the current “information at the source” provisions constituting § 6041 et seq. of the 1954 Code, 26 U. S. C. § 6041 et seq.
The present withholding system has a later origin in the Victory Tax imposed by the Revenue Act of 1942, § 172, 56 Stat. 884. This, with its then new § 465 (b) of the 1939 Code, embraced the basic definition of “wages” now contained in § 3401 (a) of the 1954 Code. The Victory Tax was replaced by the Current Tax Payment Act of 1943, 57 Stat. 126, and was repealed by the Individual Income Tax Act of 1944, § 6 (a), 58 Stat. 234. The structure of the 1943 Act survives to the present day.
Li this legislation of 35 years ago Congress chose not to return to the inclusive language of the Tariff Act of 1913, but, specifically, “in the interest of simplicity and ease of administration,” confined the obligation to withhold to “salaries, wages, and other forms of compensation for personal services.” S. Rep. No. 1631, 77th Cong., 2d Sess., 165 (1942) The committee reports of the time stated consistently that “wages” meant remuneration “if paid for services performed by an employee for his employer” (emphasis supplied). H. R. Rep. No. 2333, 77th Cong., 2d Sess., 126 (1942); S. Rep. No. 1631, 77th Cong., 2d Sess., 166 (1942); H. R. Rep. No. 401, 78th Cong., 1st Sess., 22 (1943); S. Rep. No. 221, 78th Cong., 1st Sess., 17 (1943); H. R. Rep. No. 510, 78th Cong., 1st Sess., 29 (1943).
The current regulations also contain the “if” clause, Treas. Reg. on Employment Taxes, §31.3401 (a)-1(a)(2), 26 CFR § 31.3401 (a)-1(a) (2) (1977), and then, in § 31.3401 (a)-1 (b)(2) recite: “Amounts paid specifically — either as advances or reimbursements — for traveling or other bona fide ordinary and necessary expenses incurred or reasonably expected to be incurred in the business of the employer are not wages and are not subject to withholding.” But § 31.3401 (a)-1(b) (9) provides: “The value of any meals or lodging furnished to' an employee by his employer is not subject to withholding if the value of the meals or lodging is excludable from the gross income of the employee. See § 1.119-1 of this chapter (Income Tax Regulations).”
The Internal Revenue Service by its Regulations thus now would tie the withholding obligation of the employer to the income tax result for the employee.
IV
The Government, straightforwardly and simplistically, argues that the definition of “wages” in § 3401 (a) corresponds to the first category of gross income set forth in § 61 (a)(1), and that the two statutes “although not entirely congruent [in their] relationship,” Brief for United States 11, have “equivalent scope,” id., at 15. It is claimed that the meal allowance was compensatory, for it was paid for the performance of assigned service at the place the employer determined. Thus, it is said, there was a direct causal connection between the receipt of the allowance and the performance of services. The allowance, then, was part of a total package of remuneration designed to attract and hold the employee to the Company. The Government further argues that this is in accord with the Court’s pronouncements as to what is compensation for purposes of the tax statutes. It states that § 3401 (a) broadly defines “wages,” and it cites Old Colony Trust Co. v. Commissioner, 279 U. S. 716 (1929), where the Court held employees taxable for the amount of their income taxes paid by their employers; Commissioner v. LoBue, 351 U. S. 243 (1956), where the transfer of assets to an employee at less than fair market value in order to secure better service was held to result in taxable income to the employee; Social Security Board v. Nierotko, 327 U. S. 358 (1946), where the definition of wages under the Social Security Act was at issue; and Otte v. United States, 419 U. S. 43, 49-50 (1974), which concerned the payment of wage claims by a trustee in bankruptcy. For purposes of the tax law, the Government argues, there is no difference between benefits of this kind and traditional wage or salary payments. Both are “[Compensation for services” under §61 (a)(1) and “remuneration ... for services” under § 3401 (a). It would explain away the seemingly pertinent Treas. Reg. § 31.3401 (a)-l(b) (2) on the ground that it relates only to business expenses that are deductible under § 162 (a) of the Code, and that Correll excluded from the benefit of § 162 (a) the cost of meals consumed during nonovernight travel. And it urges that what is important is that the payments at issue were a result of the employment relationship and were a part of the total of the personal benefits that arose out of that relationship.
y
We do not agree with this rather facile conclusion advanced by the Government. The case, of course, would flow in the Government’s favor if the mere fact that the reimbursements were made in the context of the employer-employee relationship were to govern the withholding tax result. That they were so paid is obvious. But it is one thing to say that the reimbursements constitute income to the employees for income tax purposes, and it is quite another thing to say that it follows therefrom that the reimbursements in 1963 were subject to withholding. There is a gap between the premise and the conclusion and it is a wide one. Considerations that support subjectability to the income tax are not necessarily the same as the considerations that support withholding. To require the employee to carry the risk of his own tax liability is not the same as to require the employer to carry the risk of the tax liability of its employee. Required withholding, therefore, is rightly much narrower than subjectability to income taxation.
As we have noted above, withholding, under § 3402, is required only upon wages, and § 3401 (a) defines wages as “all remuneration ... for services performed by an employee for his employer.” When the withholding system was effectuated in 1942, the obligation was confined to wages, and the like, “in the interest of simplicity and ease of administration.” S. Rep. No. 1631, 77th Cong., 2d Sess., 165 (1942). And what is now Treas. Reg. § 31.3401 (a)-l(b)(2), applicable to employers and excluding from the concepts of wages and of withholding amounts “paid specifically ... for traveling or other bona fide ordinary and necessary expenses incurred . . . in the business of the employer,” was issued originally — long prior to the Correll decision in 1967 — as § 404.14 of T. D. 5277, 1943 Cum. Bull. 927, 941. There is nothing in Correll that relates to the withholding provisions, and there is nothing in Treas. Reg. § 31.3401 (a)-1(b) (2) that incorporates any overnight concept. This is so despite the Government’s assertion that “consistently” since 1940, that is, since I. T. 3395, 1940-2 Cum. Bull. 64 (relating to railroad employees and their deducting the cost of room rentals and meals for necessary rest while away from home), it has adhered, to the overnight rule in determining income tax liability. Brief for United States 32. Such consistent adherence to the overnight rule in determining income tax liability — together with the consistent absence of any reference to the overnight rule in the withholding regulations — strongly indicates that it was intended that the overnight rule not apply in determining withholding tax obligations.
Decided, cases have made the distinction, between wages and income and have refused to equate the two in withholding or similar controversies. Peoples Life Ins. Co. v. United States, 179 Ct. Cl. 318, 332, 373 F. 2d 924, 932 (1967); Humble Pipe Line Co. v. United States, 194 Ct. Cl. 944, 950, 442 F. 2d 1353, 1356 (1971); Humble Oil & Refining Co. v. United States, 194 Ct. Cl. 920, 442 F. 2d 1362 (1971); Stubbs, Overbeck Associates v. United States, 445 F. 2d 1142 (CA5 1971); Royster Co. v. United States, 479 F. 2d, at 390; Acacia Mutual Life Ins. Co. v. United States, 272 F. Supp. 188 (Md. 1967). The Government would distinguish these cases on the ground that some of them involved overnight travel, the expenses of which would be deductible, and that others were concerned with particularized allowances. We perceive the distinctions but are not persuaded that they blunt the basic difference between the wage and the income concepts the respective courts have emphasized.
An expansive and sweeping definition of wages, such as was indulged in by the Court of Appeals, 540 F. 2d, at 302, and is urged by the Government here, is not consistent with the existing withholding system. As noted above, Congress chose simplicity, ease of administration, and confinement to wages as the standard in 1942. This was a standard that was intentionally narrow and precise. It has not been changed by Congress since 1942, although, of course, as is often the case, administrative and other pressures seek to soften and stretch the definition. Because the employer is in a secondary position as to liability for any tax of the employee, it is a matter of obvious concern that, absent further specific congressional action, the employer’s obligation to withhold be precise and not speculative. See Humble Oil & Refining Co. v. United States, 194 Ct. Cl., at 933, 442 F. 2d, at 1369-1370. See also H. R. Rep. No. 94-1515, p. 489 (1976).
In 1963 not one regulation or ruling required withholding on any travel expense reimbursement. The intimation was quite the other way. See Treas. Reg. § 31-3401 (a)-1(b) (2). No employer, in viewing the regulations in 1963, could reasonably suspect that a withholding obligation existed. The 1940 ruling upon which the Government would erect its case, I. T. 3395, 1940-2 Cum. Bull. 64, predated the withholding regulations of 1943. Apart from the fact that this was a deduction ruling, it is also significant that the Government did not reflect it in its withholding regulations adopted shortly thereafter. With this omission on the part of the Government, it is hardly reasonable to require an employer to fill the gap on its own account. Further, in 1963 and for some time thereafter all judicial decisions were the other way, even on the deductibility issue. Only with Correll, decided by this Court in 1967, was there a ruling of nondeductibility. And until the Court of Appeals’ decision in the present case, no court had ever held lunch reimbursements to be wages for withholding purposes. The first published pronouncement by the Internal Revenue Service with respect to withholding came only in 1969 with Rev. Rul. 69-592, 1969-2 Cum. Bull. 193, shortly after Correll came down. That Ruling’s suggestion that withholding was a possible requirement (when reimbursed travel expenses exceeded travel deductions) contained no reference whatsoever to wages, and thus avoided any mention of the statutory requirement that the payment must be a wage to be subject to withholding.
This is not to say, of course, that the Congress may not subject lunch reimbursements to withholding if in its wisdom it chooses to do so by expanding the definition of wages for withholding. It has not done so as yet. And we cannot justify the Government's attempt to do so by judicial determination.
The judgment of the Court of Appeals is reversed.
It is so ordered.
In 1960 the noon meal reimbursement was $1.30. In 1961 the union negotiated an increase to $1.40. Tr. 93.
The Company’s controller testified that the expense accounts of employees entitled to reimbursement for actual amounts expended were carefully reviewed, were often regarded as questionable ($2.50, at the trial date, was considered questionable), and were disallowed if deemed not to be reasonable. Id,, at 64-66.
The District Court in its findings, in addition to describing the rate as “modest,” observed: “As a practical matter, it could hardly be considered a money making proposition for an employee.” 405 F. Supp. 748, 749 (SD Ill. 1975).
Ibid,
There are exceptions. E. g., 26 U. S. C. § 911 (a).
E. g., Wilson v. United States, 412 F. 2d 694 (CA1 1969); Commissioner v. Bagley, 374 F. 2d 204 (CA1 1967), cert. denied, 389 U. S. 1046 (1968); Saunders v. Commissioner, 215 F. 2d 768 (CA3 1954); Koerner v. United States, 550 F. 2d 1362 (CA4), cert. denied, 434 U. S. 984 (1977); Smith v. United States, 543 F. 2d 1155 (CA5 1976), vacated and remanded, 434 U. S. 978 (1977); United States v. Barrett, 321 F. 2d 911 (CA5 1963); Magness v. Commissioner, 247 F. 2d 740 (CA5 1957), cert. denied, 355 U. S. 931 (1958); Correll v. United States, 369 F. 2d 87 (CA6 1966), rev’d, 389 U. S. 299 (1967); United States v. Morelan, 356 F. 2d 199 (CA8 1966); Hanson v. Commissioner, 298 F. 2d 391 (CA8 1962); United States v. Keeton, 383 F. 2d 429 (CA10 1967).
“All persons . . . [or] corporations . . . having the control ... or payment of . . . salaries [or] wages ... of another person, exceeding $3,000 for any taxable year ... are hereby authorized and required to deduct and withhold from such . . . income such sum as will be sufficient to pay the normal tax imposed thereon by this section . . . .”
Act of Oct. 3, 1917, § 1204 (2), 40 Stat. 300.
The House would have included withholding on dividends and bond interest as well as wages. H. R. Rep. No. 2333, 77th Cong., 2d Sess., 125 (1942).
Similarly, Treas. Reg. §31.3401 (a)-l (b)(10), promulgated originally as § 404.15 of T. D. 5277, excluded from “wages” facilities and privileges (such as entertainment, medical services, and courtesy discounts) offered by the employer. ' Yet those, obviously, are also offered in the employer-employee relationship. See S. Rep. No. 830, 88th Cong., 2d Sess., 208 (1964); H. R. Rep. No. 1149, 88th Cong., 2d Sess., 22 (1964); S. Rep. No. 91-552, p. 110 (1969); H. R. Rep. No. 91-413, p. 77 (1969). See also Rev. Rul. 55-520, 1955-2 Cum. Bull. 393; Rev. Rul. 56-249, 1956-1 Cum. Bull. 488; Rev. Rul. 58-301, 1958-1 Cum. Bull. 23; Rev. Rul. 58-145, 1958-1 Cum. Bull. 360; and Rev. Rul. 59-227, 1959-2 Cum. Bull. 13, modified and superseded prospectively by Rev. Rul. 75-44, 1975-1 Cum. Bull. 15, for other instances of payments made in the employer-employee relationship where withholding was not required despite includability for income tax purposes.
In the District Court in the Royster case, the Government abandoned its position that the income tax provisions of the Code were in pari materia with the withholding provisions. See 479 F. 2d, at 388.
An imposition of withholding responsibility on the Company for the lunch reimbursements as far back as 1963 strikes us as somewhat retroactive in character and almost punitive in the light of the facts of this case.
Needless to say, we do not decide today whether a new regulation that, for withholding purposes, would require the treatment of lunch reimbursements as wages under the existing statute would or would not be valid.
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_two_issues
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Sterling DICKEN; Donald Harden, Plaintiffs, Edward H. Pennington, Appellant, v. John ASHCROFT; Board of Probation and Parole; Dept. of Corrections; Cranston Mitchell; Dick Moore, Appellees.
No. 90-3081.
United States Court of Appeals, Eighth Circuit.
Submitted June 9, 1992.
Decided Aug. 7, 1992.
Rehearing and Rehearing En Banc Denied Sept. 23, 1992.
Vincent O’Flaherty, Kansas City, Mo., argued, for appellant.
Denise L. Gamier, Jefferson City, Mo., argued (William L. Webster and Karen A. King, on the brief), for appellees.
Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit Judge, and MAGILL, Circuit Judge.
MAGILL, Circuit Judge.
Edward H. Pennington appeals the district court’s dismissal of his complaint for failure to state a claim. Pennington, an inmate confined in the Missouri State Penitentiary, filed a complaint in federal district court under numerous federal statutes, including the Civil Rights Act of 1871, 42 U.S.C. § 1983. He claimed that the Missouri Board of Probation and Parole (the Board) violated the constitutional ban on ex post facto laws by applying to him a parole statute that was passed after his conviction. We affirm the dismissal.
I. BACKGROUND
At the time Pennington committed his offense and was convicted, the relevant parole statute in Missouri was Mo.Rev. Stat. § 549.261. Prior to Pennington’s incarceration, inmates brought a class action lawsuit to adjudicate their rights flowing from § 549.261. Pennington became a class member in the lawsuit at the time of his incarceration. In that case, this court found that § 549.261 gave rise to a liberty interest protected by the due process clause of the Fourteenth Amendment. See Williams v. Board of Probation & Parole, 661 F.2d 697, 698 (8th Cir.1981), cert. denied, 455 U.S. 993, 102 S.Ct. 1621, 71 L.Ed.2d 855 (1982). Accordingly, we held that the statute entitled the inmates to certain procedural safeguards, including the opportunity to review adverse information in their parole files. Id. at 700. We then remanded the case to the district court for a determination of what further procedural safeguards were necessary to comport with due process. Id.
While the ease was pending on remand, the State of Missouri repealed § 549.261 and enacted Mo.Rev.Stat. § 217.690. The defendants then filed a motion for summary judgment, arguing that the claims were moot under the new statute. The class representatives conceded that the claims were moot and did not contest the motion. The district court entered summary judgment on September 28, 1982. Williams v. Board of Probation & Parole, No. 74CV125-W (W.D.Mo. Sept. 28, 1982).
In the years following summary judgment in Williams, Pennington made numerous requests for access to his parole file and for copies of the transcripts of all parole hearings related to him. The Board's repeated denial of these requests, and its denial of parole pursuant to § 217.-690, prompted Pennington to file suit in federal district court on December 15,1986. Pennington’s case was referred to a magistrate judge. The magistrate judge recommended that the court dismiss the complaint for failure to state a claim because the judgment in Williams constituted res judicata and barred the suit. The district court adopted the recommendation. Pennington appeals.
II. DISCUSSION
We review a dismissal for failure to state a claim de novo. Klett v. Pim, 965 F.2d 587, 589 (8th Cir.1992) (citing Harpole v. Arkansas Dep’t of Human Serv., 820 F.2d 923, 925 (8th Cir.1987)). A complaint should not be dismissed unless it appears beyond a doubt that plaintiffs cannot prove any set of facts in support of their claim that would entitle them to relief. Id. (citing United States v. Aceto Agric. Chem. Corp., 872 F.2d 1373, 1376 (8th Cir.1989)). We may affirm the district court on any basis that is supported by the record. Schweiker v. Hogan, 457 U.S. 569, 585 n. 24, 102 S.Ct. 2597, 2607 n. 24, 73 L.Ed.2d 227 (1982); accord Morfeld v. Kehm, 803 F.2d 1452, 1453 (8th Cir.1986).
Pennington claims that the district court erred in holding that the Williams judgment is res judicata to his claim. He argues that it cannot act as res judicata because the class representatives were inadequate. See Gonzales v. Cassidy, 474 F.2d 67, 72 (5th Cir.1973) (inadequate representation of class precludes res judicata from attaching to that judgment and binding absent class members); see also Wright, Miller and Kane, Federal Practice and Procedure: Civil 2d § 1789 (1986). We need not address whether the class representatives were adequate, however, because Pennington no longer has a substantive claim that would be barred by Williams.
Pennington’s only claim before the district court was that the application of § 217.690 to him was a violation of constitutional ex post facto principles. At oral argument, however, Pennington conceded that he does not have a valid ex post facto claim. There is no reason for us to examine the adequacy of the Williams class representation to determine whether Pennington should be allowed to make a substantive argument he has conceded.
In his brief and at oral argument, Pennington asserted a second substantive argument. He claims that a regulation governing the maintenance of inmate files at the Missouri State Penitentiary gives him a protected liberty interest. See, e.g., Maggard v. Wyrick, 800 F.2d 195, 198 (8th Cir.1986) (protected liberty interest may arise when particularized standards or criteria in form of regulations, practices or customs guide state’s decisionmakers), cert. denied, 479 U.S. 1068, 107 S.Ct. 958, 93 L.Ed.2d 1006 (1987); Gale v. Moore, 763 F.2d 341, 343 (8th Cir.1985) (“a protected liberty interest may arise where particular regulations, practices or customs have been formally utilized through ... devices ... which limit the Board’s discretion”). That regulation, which became effective on June 27, 1985, reads in pertinent part: “PURPOSE: This rule is established to ensure that secure and accurate files will be maintained on all inmates assigned to the Missouri State Penitentiary.” Missouri State Penitentiary Regulations, Ch. 8, § 208.010 (1985).
Initially, we note that this claim could not be subject to res judicata under the judgment in Williams because any protected liberty interest created by this regulation is clearly outside the scope of that litigation. The Williams case was concerned solely with Mo.Rev.Stat. § 549.261 and was final in 1982. Regulation 208.010, on the other hand, was issued in 1985 and could not have been raised in the Williams case.
Pennington did not, however, raise this issue before the district court. We generally do not address issues that were not first raised before the district court. Diamonds Plus, Inc. v. Kolber, 960 F.2d 765, 768 (8th Cir.1992); United States v. Standefer, 948 F.2d 426, 430 (8th Cir.1991). Because it is not properly before us, we will not remand this issue to the district court.
III. CONCLUSION
We find that Pennington does not have a substantive claim on which relief could be granted. He has conceded that he does not have a viable ex post facto claim. His argument that he has a protected liberty interest created by Regulation 208.010 is not properly before this court. Moreover, this argument does not establish that the district court erred by dismissing his complaint for failure to state a claim because it was not before the district court. Consequently, we affirm the district court’s dismissal of Pennington’s complaint.
. The Honorable Scott 0. Wright, Senior United States District Judge for the Western District of Missouri.
. Two other inmates filed as plaintiffs in the original action. These two inmates were not named in the notice of appeal, however, and they did not sign it. Therefore, they are not parties to this appeal.
.The prior parole statute read, in pertinent part:
When in its opinion there is reasonable probability that the prisoner can be released without detriment to the community or to himself, the board shall release on parole....
Mo.Rev.Stat. § 549.261 (repealed) (emphasis added).
The current statute reads, in pertinent part:
When in its opinion there is reasonable probability that an inmate of a state correctional institution can be released without detriment to the community or to himself, the board may in its discretion release or parole such person.
Mo.Rev.Stat. § 217.690 (emphasis added).
. The district court held that Williams is res judicata to Pennington’s claim because Pennington was a class member in Williams, and this issue could have been raised in that litigation.
. Pennington also argues that Williams cannot be res judicata as to him because it was not a final judgment on the merits. This argument is meritless. It is well established that summary judgment is a final judgment on the merits for purposes of res judicata. See, e.g., King v. Hoover Group, Inc., 958 F.2d 219, 222 (8th Cir.1992).
. Pennington correctly admits that Mo.Rev.Stat. § 217.690 does not create a protected liberty interest. Gale v. Moore, 763 F.2d 341, 343 (8th Cir.1985).
Question: Are there two issues in the case?
A. no
B. yes
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.
WILLIAMSON v. COMMISSIONER OF INTERNAL REVENUE. COMMISSIONER OF INTERNAL REVENUE v. WILLIAMSON.
Nos. 7578, 7615.
Circuit Court of Appeals, Sixth Circuit.
Dec. 15, 1938.
Murray Seasongood, of Cincinnati, Ohio (Murray Seasongood, Harry Stickney, and Paxton & Seasongood, all of Cincinnati, Ohio, on the brief), for petitioner Williamson.
Berryman Green, of Washington, D. C. (James W. Morris, Sewall Key, J. Louis Monarch, and Louise Foster, all of Washington, D. C., on the brief), for the Commissioner.
Before HICKS, ALLEN, and HAMILTON, Circuit Judges. •
ALLEN, Circuit Judge.
These appeals involve the same facts, and were consolidated for hearing and decision. In No. 7578 the taxpayer seeks to review the order of the Board of Tax Appeals sustaining a determination of deficiencies and adjusting the amounts thereof to $11,639.90 and $4,425.02 for the taxable years 1932 and 1933 respectively. 34 B.T.A. 668. In No. 7615 the Commissioner attacks the same order upon the ground that the deficiencies determined should have been $12,323.69 and $4,596.90 respectively.
The controversy arises out of the sale of certain stocks inherited' by the taxpayer from her husband, A. W. Williamson, who died intestate on March 28, 1931, leaving her his sole heir at law. The facts are stipulated. At the time of decedent’s death he owned 3,094 shares of common stock of the American Rolling Mill Company, and 5,932% shares of common stock of the Columbia Gas & Electric Corporation. On that date these stocks had a fair market value of $29.50 and $41 per share respectively. Two administrators, one of them being the Fifth-Third Union Trust Company of Cincinnati, were appointed and qualified. The market value of. the stocks decreased rapidly, and prior to October 31, 1931, the taxpayer demanded that the administrators sell sufficient assets to pay the expenses of administration and taxes, which amounted to approximately $90,000. The administrators did not comply with this demand. If these stocks had been sold within three months of the date of the administrators’ qualification, as authorized under § 10697 of the General Code of Ohio, the prices obtained for the American Rolling Mill Company stock would have varied from $32.37% per share to $15.12% per share, and for the Columbia' Gas & Electric Corporation stock from $39.37% to $20.62% per share. In June, 1932, when the market value of these particular stocks was much lower, the administrators notified the taxpayer that they would sell sufficient assets to pay the debts and taxes. On June 18, 1932, the administrators contracted with the taxpayer that the Fifth-Third Union Trust Company would lend the taxpayer sufficient funds to pay the debts, taxes and all charges outstanding against the estate, and the taxpayer agreed to execute and deliver notes in the amount of the loan, payable to the order of the Trust Company, to pledge as security therefor all the stocks of the estate, and to relinquish her right of action against the administrators for the shrinkage in the estate. The contract was fully performed.
On June 28, 1932, the probate court of Hamilton County, Ohio, entered an order directing that the property of the estate be distributed in kind to the person entitled .thereto according to law. The stocks were actually transferred to the taxpayer on July 11 and July 14, 1932. At that time the common stock of the American Rolling Mill Company and of the Columbia Gas & Electric Company had a fair market value of $4.37% and $6.62% per share respectively. The taxpayer, during the taxable years 1932 and 1933, made sales of part of this stock at a price greater than the above fair market values existing on the date when she received the stock. The sales were made pursuant to the contract with the administrators.
In her income tax return, the taxpayer reported losses on these sales, calculating that the difference between the amount she received and the fair market value of the shares at the time of decedent’s death constituted loss to her under the statute. The Commissioner computed gain based upon the difference between the amounts realized and the fair market value of the shares on the date of the order of distribution, June 28, 1932. The Board of Tax Appeals computed the gain, using July 11 and July 14, 1932, as the basic dates.
The deficiencies were determined under § 113 (a) (5) of the Revenue Act of 1932, c. 209, 47 Stat. 169, 198, 26 U.S.C. A. § 113 note, which reads as follows:
“(a) The basis of property shall be the cost of such property: except that— * * ❖
“(5) If personal property was acquired by specific bequest, or if real property was acquired by general or specific devise or by intestacy, the basis shall be the fair market value of the property at the time of the death of the decedent. If the property was acquired by the decedent’s estate from the decedent, the basis in the hands of the estate shall be the fair market value of the property at the time of the death of the decedent. In all other cases if the property was acquired either by will or by intestacy, the basis shall be the fair market value of the property at the time of the distribution to the taxpayer. * * * ”
The principal questions are (1) Does § 113 (a) (5) apply in this case, and if applicable, should the taxpayer use as cost basis the fair market value of the stock at time of distribution to her, or the fair market value at the date of her husband’s death?
(2) Does the provision in the statute that the cost basis of the stock shall be the fair market value at the time of distribution to the taxpayer violate the Constitution of the United States?
Upon the first question, it is the taxpayer’s contention that the stocks sold were obtained for value and not by intestacy, and that hence § 113 (a) (5) does not apply. She alleges that in assuming liability for the debts of the estate, agreeing to pledge the stocks of the estate, and releasing her cause of action against the administrators, she gave valuable consideration for the stocks. Conceding the hardship arising from the fact that the administrators failed to sell these stocks at a time when a better price could have been realized, and later notified the taxpayer that the stocks would be sold at a time when they were greatly depressed in market value, this does not change the legal situation. In order to sustain her proposition that § 113 (a) (5) does not control, the taxpayer contends that the stocks were in effect sold to her by the administrators. But while value was given for the loan, this transaction had none of the earmarks of a sale. The taxpayer’s receipt of the stocks was in no way dependent upon her loan or pledge. The Board of Tax Appeals found that the stocks were acquired by intestacy, and there is no evidence to support any other conclusion.
In the alternative, the taxpayer alleges that if § 113 (a) (S) controls, the stocks in question were acquired by the decedent’s estate from the decedent, and that within the purview of the second sentence of the section, the basis thereof is the fair market value at the time of decedent’s death. But this contention has no merit. The taxpayer acquired these stocks through a distribution in kind. The estate did not acquire them. Cf. Commissioner v. Matheson, 5 Cir., 82 F.2d 380, 381. Hence the property was at no time “acquired by the decedent’s estate from the decedent,” and the third sentence of the section controls. The basis is the value of the property at the time of distribution to the taxpayer.
The decision must also be affirmed upon the question of constitutionality. Since Congress has the plenary power of taxation, it may determine the basic date for figuring gain or loss. Whether it be the date of purchase of stocks by a donor (Taft v. Bowers, 278 U.S. 470, 49 S.Ct. 199, 73 L.Ed. 460, 64 A.L.R. 362), or the time of acquisition (Brewster v. Gage, 280 U.S. 327, 50 S.Ct. 115, 74 L.Ed. 457), or the time of actual distribution to the taxpayer, as in the present statute (Haskell v. Commissioner, 3 Cir., 78 F.2d 869), does not affect the validity of the measure. The classifications established in § 113 (a) (5) are reasonable and non-discriminatory, and the statute is clearly constitutional.
The Board of Tax Appeals decided that the taxpayer was entitled to have her gain taxed as capital net gain under § 101 (c) (8) of the Revenue Act of 1932, 26 U.S.C.A. § 101 note, finding that the stock had been held by her more than two years. McFeely v. Commissioner, 296 U.S. 102, 56 S.Ct. 54, 80 L.Ed. 83, 101 A.L.R. 304. The taxpayer urges that this decision, if affirmed, requires reversal of the main case, for if she held the stock more than two years, she acquired title long prior to the time of distribution. But the Supreme Court has disposed of this contention in McFeely v. Commissioner, stating that § 101 (c) (8) and § 113 (a) (5) “are not inconsistent, and'that each should be read as affecting the subject to which alone it applies.” [Page 59.]
The taxpayer’s basic contention is that she suffered a loss in the sale of these stocks. Undoubtedly the securities were sold at less than their market value at the time of her husband’s death. But the fundamental fallacy of the taxpayer’s position is that while at her husband’s death she had a right to receive these stocks, she had invested nothing in them, and they did not become her property' until the actual distribution. Goodrich v. Edwards, 255 U.S. 527, 41 S.Ct. 390, 65 L.Ed. 758, in which the taxpayer acquired stock by purchase, is therefore not in point. In the instant case, between the date of distribution and the dates of sale there was a substantial increase in value, and the taxpayer gained by the sales, although she did not receive as much as she would have if the stocks had sold at the market price of March 28, 1931. Since it is not the value of the property acquired by her which is taxed, but the gain received in the sale, § 22 (b) of the Revenue Act of 1932, 26 U.S.C.A. § 22 (b) has no bearing.
In No. 7615 the Commissioner contends that the Board of Tax Appeals erred in its decision that distribution under § 113 (a) (5) occurs upon the date of actual transfer of the securities to the taxpayer, rather than upon the date when the order of distribution is entered by the probate court. We think that the Board of Tax> Appeals was correct in its decision upon this point. Its determination (34 B.T.A. 924) that the date of the actual receipt of the stocks is the basis instead of the date of the order of distribution is in accord with the words of § 113 (a) (5), which expressly states that the basis shall be the fair market value of the property “at the time of the distribution to the taxpayer.” The court order 'is the authority which underlies and precedes the distribution, and the time of actual distribution is not necessarily the same as the time of the entering of the order. Since distribution is the apportionment by a court of the personal property or the proceeds of an intestate’s estate among those entitled to it according to the state statutes of distribution, ' and since the federal statute in general terms fixes the time of distribution as the basic date, Congress evidently contemplated that the time of distribution should be that which is recognized by state law. Under Ohio law, the probate court does not through its order effect a distribution of property. The only valid order of distribution which the probate court is authorized to enter is general. The probate court has no power to designate the distributees. Swearingen v. Morris, 14 Ohio St. 424, 432; Cox, Adm’r, v. John, 32 Ohio St. 532; Armstrong v. Grandin, 39 Ohio St. 368. In First National Bank of Cadiz v. Beebe, 62 Ohio St. 41, 56 N.E. 485, the opinion stated [page 487]:
“But it is to be specially noted that the only power here given with respect to the distribution of estates is to order distribution. This does not mean that the probate court may find and direct the persons to whom distribution is to be made, and the amounts to each, but means simply that, as a result of the settlement of accounts of executors and administrators, and as a step necessary to a final distribution of the trust fund, a general order of distribution is to be made.”
To the same effect is Henry v. Doyle, 82 Ohio St. 113, 91 N.E. 990, 137 Am.St.Rep. 769. The order of the probate court of Hamilton County, therefore, did not bring about a segregation of the shares of stock, and did not, within the meaning of the statute, result in a distribution.
The decision is affirmed.
The same basic date as that established in the statute considered in Brewster v. Gage, supra, namely, the time of ae- ■ quisition, controlled the decision in Security Trust Co. v. Commissioner, 6 Cir., 65 F.2d 877.
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_district
|
H
|
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".
E. ALBRECHT & SON, Inc., v. LANDY, Collector of Internal Revenue.
No. 11598.
Circuit Court of Appeals, Eighth. Circuit.
Aug. 19, 1940.
William H. Oppenheimer, of St. Paul, Minn. (Robert F. Leach and Oppenheimer, Dickson, Hodgson, Brown & Donnelly, all of St. Paul, Minn., on the brief), for appellant.
Milford S. Zimmerman, Sp. Asst, to the Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key, Sp. Asst, to the Atty. Gen., and Victor E. Anderson, U. S. Atty., and Linus J. Hammond, Asst. U. S. Atty., both of St. Paul, Minn., on the brief), for appellee.
Before GARDNER and SANBORN, Circuit Judges, and COLLET, District Judge.
COLLET, District Judge.
Appeal from a judgment in favor of the Collector of Internal Revenue for the District of Minnesota, on a claim for refund of manufacturers’ excise taxes.
By Section 604 of the Revenue Act of 1932, 26 U.S.C.A. Int.Rev.Acts, page 609, effective June 21, 1932, there was imposed a manufacturers’ excise tax on articles made of fur equivalent to ten per cent of the selling price. Section 619 of the same Act, 26 U.S.C.A. Int.Rev.Code, § 3441, provides that if such an article is sold at retail, on consignment, or at less than the fair market price, the tax shall be computed on the price for which such articles are sold, in the ordinary course of trade, by manufacturers or producers. Such price to be determined by the Commissioner of Internal Revenue.
For seventy-seven years prior to June 21, 1932, the business now owned by E. Albrecht & Son, Inc., had been engaged in manufacturing garments made from fur. In 1915 a wholesale department was established for the purpose of promoting and handling sales to retailers. From that date forward the business was divided into three departments, consisting of (1) manufacturing, (2) wholesale, and (3) retail. All departments of the business are and were housed in the same building in St. Paul, Minnesota, with the exception of one additional retail store in Minneapolis, Minnesota. Early in 1932, it became apparent to those interested in the fur business that Congress would soon pass the manufacturers’ excise tax heretofore referred to. In an effort to avoid the payment of that tax, after the act had been passed and approved and only five days before its effective date, a new corporation was created by the owners of the existing corporation to be utilized for that purpose. In order to avoid confusion, the original corporation, appellant here, will be referred to as the Manufacturing Company. The corporation created in 1932 will be referred to as the “Selling Company’’. On June 20, 1932, the day before the effective date qf the act, by formal bill of sale all of the finished articles owned by the Manufacturing Company, together with all orders for articles uncompleted, completed but not delivered, and all orders for repair work on hand at the . time, were transferred to the Selling Company. No consideration passed from the Selling Company to the Manufacturing Company other than the transfer of the entire capital stock of the former to the latter. No profit was made by the Manufacturing Company on the transaction. It is admitted by appellant Manufacturing Company that the transfer was for the purpose of effecting a sale and transfer of all fur stock from the Manufacturing Company to the Selling Company prior to the effective date of the taxing statute thereby avoiding the tax on sales by manufacturers. Subsequent to June 20, 1932, all of the selling operations were performed by the Selling Company which did no manufacturing. The same persons served as officers of both corporations and many of the employees served both. Their salaries were allocated to each on a percentage basis. As was done before the creation of the Selling Company, each of the three departments were strictly segregated, but after the formation of the Selling Company a separate set of books was kept for that company covering the wholesale and retail operations, which operations were shown as the business of the Selling Company alone. The president of the Manufacturing Company testified that if it had not been for the passage of the excise tax act the Selling Company would probably not have been created. The public generally was not advised of its creation and merchandise continued to be sold under the trade-name of “E. Albrecht & Son” and under the trademark “Albrecht Furs.” No changes were made in bills or invoices and the use of shipping tags containing the legend," “From E. Albrecht & Son, Manufacturers of Al-brecht Furs, Founded 1855’’, continued.
The Commissioner of Internal Revenue and the trial court disregarded the sale of June 20, 1932, upon the ground that the transaction was not a bona fide sale. The court entered judgment applying the tax to all articles (1) completed and in the stock of the Manufacturing Company and transferred by it to the Sales Company prior to June 21, 1932, but not actually sold and delivered prior to that date; (2) articles in the process of manufacture, together with all necessary furs and materials for the completion thereof; (3) repair jobs transferred by the June 20th conveyance which were not completed until after the effective date of the Act; and (4) repair items completed before June 21, 1932, but which were not delivered or invoiced to the customer until subsequent to that date.
Although a parent corporation and its wholly-owned subsidiary may for certain purposes and under proper circumstances be treated as separate entities, the finding of the trial court that the Selling Company was merely the adjunct and instrumentality of the Manufacturing Company, organized in an attempt to avoid the excise tax applicable to manufacturers, is amply supported by the foregoing facts. The conclusion reached by the trial court that under such circumstances the parent corporation will not be permitted to use its subsidiary as a device by which it may evade its responsibilities, is the well-established rule. The trial court properly ignored the creation and existence of the Selling Company in applying the manufacturers’ excise tax. The determination of the proper amount of those taxes remains.
The Commissioner of Internal Revenue computed the tax assessment against the Manufacturing Company upon the price at which completed garments were sold by the Selling Company to retail merchants. That action was approved by the trial court. The application of the price at which the Selling Company sold the garments as the basis for the computation of the tax is assailed upon the ground that this price did not represent the price at which the garments would sell, “in the ordinary course of trade, by the manufacturer (s) or producer (s) thereof,” which latter price is asserted to be the price contemplated by the statute as the basis for determining' the amount of the tax.
By its finding of fact the trial court found that the alleged sales made by the Manufacturing Company to the Sales Company on June 20, 1932, and subsequently, were not made in the ordinary course of business, were not “arms-length transactions”, were at prices less than the fair market price and less than similar articles were sold in the ordinary course of trade and business. It further found that the fair market price of the goods sold by the Manufacturing Company through the Selling Company subsequent to June 20, 1932, was the market price determined by the Commissioner of Internal Revenue in his assessment against the Manufacturing Company, to-wit: where the articles were sold at retail by the Sales Company, the price at which those articles would have been sold at wholesale, shown by the books of the Manufacturing Company; and where articles were sold at wholesale by the Sales Company, the wholesale selling price obtained therefor; and where articles were sold at a sacrifice, and at less than the market wholesale selling price, a price of twenty per centum less than the selling price. If those findings are supported by any substantial evidence they will not now be disturbed on appeal.
As heretofore noted, ample grounds existed for the finding that the sale of June 20, 1932, to the Selling Company was not bona fide. The same facts which justified that conclusion warrant the finding that the sale of all articles transferred by the June 20th transaction and sales subsequently made by -the Manufacturing Company to the Sales Company were not “arms-length transactions” made in the ordinary course of business. Whether those sales were at prices less than the fair market price, requires consideration of facts heretofore only incidentally referred to.
An examination of the entire record discloses that the parol testimony consisted entirely of the testimony of Robert Al-brecht, president of both the Manufacturing Company and the Selling Company, and H. A. Pedersen, a Deputy Collector of Internal Revenue. The testimony of Mr. Albrecht was unequivocal and insofar as it related to this question may be summarized as follows:
The business' had for many years prior to 1932 been operated through three departments, the manufacturing department, the wholesale department and the retail department. At the beginning of each season an estimate of the cost of a garment of each style and size to be manufactured in the ensuing season was made by estimating the number and cost of tanned furs necessary, and adding to that the cost of productive labor, factory overheads, and the cost of “findings” which consist of thread, buttons, inner lining, canvass backing, and other small items. The total cost of the foregoing, consisting of skins, labor, lining, findings, and factory overhead equalled what is known as the manufacturer’s cost. To that cost was added a manufacturer’s profit of 13% of the manufacturer’s cost and, (subsequent to the June 20th transaction) the excise tax of 10%, the total of which gave what was termed the manufacturer’s selling price. These items were entered in what was known as the “scale book.” The witness testified that this practice was followed generally in the fur business as the accepted method of arriving at the price at which the manufacturer sold to the wholesaler. The “scale book” price controlled although the actual cost' of each completed garment was tabulated for comparison with the estimated or “scale book” cost. Portions of the scale book, and actual cost figures of a number of garments manufactured in 1932, which were introduced as exhibits, show the actual cost and the scale book cost varying slightly, with the scale book cost universally the greater. The witness testified that the wholesale selling price was entered in the scale book- at 50% more than the manufacturer’s selling price and was the price at which this company and the fur industry generally sold at wholesale. The retail selling price was also entered in the scale book. That price was usually 20% more than the wholesale selling price. It varied with different retailers, but the witness stated that the retail price for the industry generally, where the wholesaler, like appellant, furnished much of the selling service, was, as stated, 20% more tBán the wholesale selling price.
The testimony of Mr. Pedersen was devoted almost entirely to an explanation of the method followed in applying the tax-to the selling prices as shown by the books of the Selling and Manufacturing Companies. He pointed out that neither the Manufacturing Company or the Selling Company at any time made any sales to wholesalers. It is undisputed that before the creation of the Selling Company, the Manufacturing Company maintained a wholesale department to which garments were charged at the manufacturer’s scale book selling price. It also performed all of the services of a wholesaler and sold to retailers through its wholesale department at the wholesaler’s selling price. After the Selling Company was created and subsequent to the fictitious sale of June 20, 1932, the Manufacturing Company sold all of its products to the Selling Company at actual cost plus 13%, plus tax. The actual manufacturing cost plus 13% plus tax was, as heretofore stated, somewhat less than the scale book manufacturer’s selling price. Since all of appellant’s evidence on that question was to the effect that the scale book manufacturer’s selling price was the market price at which manufacturers sold, the trial court’s finding that the sales by the Manufacturing Company to the Sales Company subsequent to June 20, 1932, were at prices less than the market, price is correct upon appellant’s own theory that the scale book price was the market price. The sales made by the Manufacturing Company to-the Selling Company subsequent to June 20, 1932, being at less than the market price, paragraph (b) (3) of Section 619, supra, requires that the tax be computed “on the price for which such articles are sold, in the ordinary course of trade, by manufacturers or producers thereof, as' determined by the Commissioner.’’
Pursuant to this direction the Commissioner fixed the price at which articles such as those manufactured by appellant were sold by the manufacturer or producer in the ordinary course of trade at the wholesaler’s selling price which was the price at which the Selling Company sold to retailers. But the record contains no evidence whatever of any market price or price at which articles such as those made by appellant were sold by manufacturers in the ordinary course of business, other than the testimony of Mr. Albrecht that the scale book manufacturers’ selling price was the price at which appellant sold and at which such' articles were generally sold by manufacturers. The Commissioner’s determination and the trial court’s finding that the fair market price was, as determined by the Commissioner, the wholesale selling price by the Selling Company to the retailer is unsupported by any evidence in this record. Unless the Commissioner’s determination was arbitrary it was the duty of the trial court to uphold it. Ray Consolidated Copper Co. v. United States, 268 U.S. 373, 45 S.Ct. 526, 69 L.Ed. 1003. But the presumption in favor of the propriety of the Commissioner’s action takes flight upon the entry of proven facts. Wiget v. Becker, 8 Cir., 84 F.2d 706.
The regulations promulgated under authority of the Revenue Act of 1932 do not require the action taken. Those regulations insofar as they may appear to apply are quoted in the margin. They apply to the determination of market price of goods when sold at retail or by the manufacturer to the retailer. They do not contemplate a situation such as that presented here where the record shows a well-established practice in the industry generally of a sale by the manufacturer to a wholesaler at prices customarily followed by the trade.
If the inquiry was one to determine the customary selling price between the Manufacturing Company and the retailer (made through the Selling Company) or the generally established market price of the garments sold by a wholesaler to retail merchants, the conclusion reached would find support in the record. Or if, as it was held in Bourjois, Inc. v. McGowan, 2 Cir., 85 F.2d 510, the manufacturer’s selling price had theretofore been established by the manufacturer at the price obtained from the retailer, the application of the tax to the price so established would be proper. But since the tax is to be applied to the price for which appellant’s products and products similar to appellant’s, are sold in the ordinary course of trade by manufacturers or producers, and since appellant had not established its manufacturer’s selling price at the price obtained from retailers and there is no finding of the price for which appellant would have sold its products as a manufacturer in the ordinary course of trade, this cause must be reversed and remanded for determination of the latter question by the trial court and the application of the tax to the price at which appellant’s products would have sold in the usual course of trade by a manufacturer or producer.
The cause is reversed and remanded for further proceedings not inconsistent herewith.
Section 004, Revenue Act 1932, 26 U.S.C.A. Int.Rev.Acts, page 609. “There is hereby imposed upon the following articles, sold by the manufacturer, producer, or importer, a tax equivalent to 10 per centum of the price for which so sold: Articles made of fur on the hide or pelt or of which any such fur is the component material of chief value.”
Subsection (b) Section 619, Revenue Act of 1932, 26 U.S.C.A. Int.Rev.Code, § 3441(b):
“(b) If an article is—
“(1) sold at retail;
“(2) sold on consignment; or
“(3) sold (otherwise than through an arm’s length transaction) at less than the fair market price;
the tax under this title shall (if based on the price for which the article is sold) be computed on the price for which such articles are sold, in the ordinary course of trade, by manufacturers or producers thereof, as determined by the Commissioner.”
Cannon Mfg. Co. v. Cudahy Packing Co., 267 U.S. 333, 45 S.Ct. 250, 69 L.Ed. 634; Commerce Trust Co. v. Woodbury, 8 Cir., 77 F.2d 478, loc. cit. 487.
Wabash Ry. Co. v. American Refrigerator Transit Co., 8 Cir., 7 F.2d 335; Commerce Trust Co. v. Woodbury, 8 Cir., 77 F.2d 478, loc. cit. 487; Bourjois, Inc., v. McGowan, 2 Cir., 85 F.2d 510; Chicago, M. & St. P. Ry. Co. v. Minneapolis Civic Ass’n, 247 U.S. 490, 38 S.Ct 553, 62 L.Ed. 1229.
See Sec. 619(b) supra, note.
“Regulation 46, Article 15: — The ‘fair market price’ within the meaning of the Act and these regulations is the price for which articles are sold by manufacturers at the place of manufacture or production in the ordinary course of trade and in the absence of special arrangements. Where, for any reason, a manufacturer’s sale price does not properly reflect the price for which similar articles are sold at the place of manufacture or production in the ordinary course of trade by manufacturers and the sale is not an arm’s-length transaction, the tax shall be computed upon a- fair market price. * *****
“Where a manufacturer sells articles at retail, the tax on his retail sales ordinarily will be computed upon a price for which similar articles are sold by him at wholesale. However, in such cases it must be shown that the manufacturer has an established bona fide practice of selling the same articles in substantial quantities at wholesale. If he has no such sales at wholesale, a fair market price will be determined by the Commissioner.”
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_r_nonp
|
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 "groups and associations". 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.
Meredith COLEMAN, Plaintiff-Appellant, v. Nyal FRANTZ, Sheriff of Wells County, Indiana, Defendant-Appellee.
No. 84-1248.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 14, 1984.
Decided Jan. 30, 1985.
Cudahy, Circuit Judge, filed a concurring opinion.
Myron L. Gordon, Senior District Judge, sitting by designation, filed a dissenting opinion.
Joseph S. Northrop, Mills & Northrop, Huntington, Ind., for plaintiff-appellant.
James P. Fenton, Barrett, Barrett & McNagny, Fort Wayne, Ind., for defendantappellee.
Before CUMMINGS, Chief Judge, CUDAHY, Circuit Judge, and GORDON, Senior District Judge.
The Honorable Myron L. Gordon, Senior District Judge for the Eastern District of Wisconsin, is sitting by designation.
CUMMINGS, Chief Judge.
Plaintiff Meredith Coleman filed this civil rights action against Nyal Frantz, the Sheriff of Wells County, Indiana, pursuant to 42 U.S.C. § 1983. The district court granted defendant’s motion for summary judgment. 593 F.Supp. 28. Plaintiff appeals on the grounds that the district court erroneously failed to recognize a violation of his constitutional rights and improperly afforded the defendant a qualified immunity from Section 1983 liability. For the reasons set forth below, we affirm the summary judgment.
I
As noted, defendant is the Sheriff of Wells County, Indiana, and he occupied that post at all times relevant to this case. On June 23, 1981, the Wells Circuit Court issued a bench warrant for the arrest of plaintiff, based upon defendant’s affidavit of “probable cause” credited by the county court (p. 8 of first opinion below, R. Item 31; 593 F.Supp. at 30). The “legally sufficient and valid arrest warrant” (593 F.Supp. at 32) instructed the Sheriff to arrest the plaintiff on a charge of receiving stolen property and to take him before that court “instanter.” Bond was set by the court at $10,000. Defendant turned himself in at the Wells County Jail on June 30, 1981. The Sheriff read him the bench warrant naming the offense charged, informed him of the amount of his bail, and incarcerated him for want of making bail. The next day the defendant returned service of the warrant to the Wells Circuit Court through its clerk, as is customary there, thus notifying the court of Coleman’s status. Plaintiff remained in the Sheriff’s custody until July 18, when he was released by the Sheriff at the direction of the prosecuting attorney’s office. Until then, the prosecutor had taken no action despite his early knowledge of the matter. During his detention the plaintiff asked the Sheriff several times when he was going to court and protested his innocence. In turn the Sheriff repeatedly called the prosecutor’s office to arrange for defendant’s “first appearance,” but did not receive a reply or any action until July 18th, the date the prosecutor first told him to release plaintiff.
Plaintiff relies upon the language of the form bench warrant stating that the Sheriff “have [Mr. Coleman’s] body before the Judge of Wells Circuit Court, instanter, then and there to answer the State of Indiana, on the charge of Receiving Stolen Property I.C. 35-43-4-2(b) * * and on Indiana Code § 35-l-8-l(a) as placing a duty on the Sheriff to bring about a “first appearance.” That Section of the Indiana Code states that “[w]hen an officer arrests an accused, he shall take the accused before the court issuing the warrant” for docketing by the court (emphasis supplied). No particular time limit is specified.
Throughout the 18-day detention plaintiff had access to a telephone, to visitors, and to the Sheriff and his staff. Plaintiff also spoke with an attorney during his first week of detention, but did not retain the attorney as counsel. He was not mistreated nor denied necessary items while incarcerated. See 593 F.Supp. at 30. There is no indication from the record that he ever requested that an attorney be provided for him because he could not afford counsel. The criminal charge against him was dismissed on August 23,1982.
The June 1983 complaint sought $10,000 compensatory and $10,000 punitive damages, attorney’s fees and costs. The district court granted summary judgment in favor of the defendant on the Section 1983 count after reviewing the pleadings, depositions and other documentary evidence. Simultaneously a pendent state count was dismissed with prejudice but is not involved on appeal. The court held that Sheriff Frantz was shielded from Section 1983 liability by a qualified immunity, and alternatively, that no violation of the United States Constitution took place. Two opinions were issued, the second after considering plaintiff’s response to the motion for summary judgment. Each resulted in summary judgment for the Sheriff and in dismissal of plaintiff’s pendent state claims.
II
The preliminary inquiry in any § 1983 action must
focus on whether the two essential elements to a § 1983 action are present: (1) whether the conduct complained of was committed by a person under color of state law; and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or law of the United States.
Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420. The first of these elements was not contested by the defendant. It is important for us to examine the second even though our holding with respect to qualified immunity would constitute an adequate basis upon which to affirm the judgment below. As was stated by this Court in Egger v. Phillips, 710 F.2d 292, 315 n. 27 (7th Cir.1983) {en banc), “to dispose of the case solely on the ground that at the time of the alleged constitutional violation the right in question was not clearly established [thus rendering defendant immune, see discussion infra p. 725] would leave the status of such right in limbo.” See Nahmod, Constitutional Wrongs Without Remedies: Executive Official Immunity, 62 Wash U.L.Q. 221, 259 (1984).
Plaintiff first contends on appeal that his detention violated a “nationally recognized right for arrested persons to be brought before a magistrate without unreasonable delay” based upon the Fourth Amendmant’s prohibition of “unreasonable * * * seizures” and the Fourteenth Amendment’s prohibition of deprivation of liberty without due process of law and its equal protection clause. Despite plaintiff’s arguments to the contrary, the issue of an arrestee’s right to a prompt first appearance before a judicial officer is largely one of first impression. The notable lack of authority regarding this important question is apparently explained by structural limitations on the opportunity afforded litigants to raise the issue in federal courts. See Fisher v. Washington Metro. Area Transit Authority, 690 F.2d 1133, 1139 n. 7 (4th Cir.1982) (the revivification of 42 U.S.C. § 1983 created a means of contesting the issue). Only the Fifth Circuit has taken the position that the lack of a prompt first appearance before a judicial officer can never violate the Constitution. See Perry v. Jones, 506 F.2d 778, 780-781 (5th Cir.1975); Anderson v. Nosser, 438 F.2d 183, 196 (5th Cir.1971), modified en banc, 456 F.2d 835 (1972). However, these cases preceded Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433, and Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54, discussed infra, and therefore need not detain us. The district court ruled that on the specific facts of this case, where there has been a valid determination of probable cause and a warrant issued, and where the plaintiff had access to an attorney, a telephone and to visitors, there was no constitutional violation (593 F.Supp. at 34).
We hold that the plaintiff’s eighteen-day detention without an appearance before a judge or magistrate was a deprivation of liberty without due process of law. State action which “shocks the conscience” of the court, Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183, or which is highly offensive to the “concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288, has caused the Supreme Court to find a denial of due process. In Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 863, 43 L.Ed.2d 54, the Court ruled that the Constitution required a judicial determination of probable cause as a prerequisite to an “extended restraint of liberty following arrest,” and recognized that
the consequences of prolonged detention may be more serious than the interference occasioned by arrest. Pretrial confinement may imperil the suspect’s job, interrupt his source of income, and impair his family relationship.
The protracted incarceration of Mr. Coleman with its incident harms is constitutionally impermissible because it is wholly inconsistent with notions of “fundamental fairness” required of criminal prosecutions under the Due Process Clause, see, e.g., California v. Trombetta, — U.S. —, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 and with the concept of “ordered liberty.” See Palko, supra.
In Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433, the Supreme Court reiterated its concern with “extended restraints of liberty following arrest,” Ger-stein, supra, in the context of arrests made pursuant to a valid warrant and following a judicial determination of probable cause. Baker ruled that no unconstitutional deprivation of liberty occurred where the plaintiff was arrested pursuant to a valid warrant, jailed for three days and then released when it was determined that the wrong man had been imprisoned. The sheriff involved had no duty under the Constitution to “investígate independently every claim of innocence,” nor to “perform an error-free investigation of such a claim.” 443 U.S. at 146, 99 S.Ct. at 2695. The Court observed that because of the Sixth Amendment right to a speedy trial, “one in respondent’s position could not be detained indefinitely in the face of repeated protests of innocence.” Id. at 144, 99 S.Ct. at 2694. Then applying a due process standard, the Court alternatively held that a three-day detention over a New Year’s weekend did not amount to a deprivation of liberty without due process of law. Id. at 145, 99 S.Ct. at 2695. While Baker did not expressly adopt a due process standard, the Court apparently found such an analysis relevant, and we can discern no reason why prolonged detentions of this sort should be exempt from scrutiny under the requirements of due process.
The analysis utilized in Baker indicates that the duration of the detention and the burden placed on state officials in providing procedural safeguards are highly relevant to a constitutional examination of post-arrest detentions. The detention in Baker spanned three days and could only have been prevented by the institution of significant and burdensome investigative procedures by the defendant sheriff. In the present case, however, the plaintiff was incarcerated for nearly three weeks, in the face of repeated protests of innocence and requests to go to court, before the prosecutor ordered his release. Where first appearances are provided, the requirement that they be timely would place a relatively small burden on law enforcement and judicial officers. In light of the disturbing and unexplained factors before us, Baker supports, if not requires, our conclusion that plaintiff’s 18-day detention was a violation of liberty without due process of law.
Almost every element of a “first appearance” under state statutes or the Federal Rules of Criminal Procedure serves to enforce or give meaning to important individual rights that are either expressly granted in the Constitution or are set forth in Supreme Court precedent. The following is a listing of traditional components of a first appearance (see supra note 1) and the rights enforced by them: (1) inform the suspect of the charge — Sixth Amendment (“the accused shall enjoy the right * * * to be informed of the nature and the cause of the accusation”); (2) inform the defendant of the right to counsel and determine if the defendant is indigent and desires the assistance of appointed counsel — Sixth Amendment (“the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence”); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387; (3) inform the suspect of the right to remain silent under the privilege against self-incrimination — Fifth Amendment (“No person * * * shall be compelled in any criminal case to be a witness against himself”); Miranda v. Arizona, supra; (4) set or review bail — Eighth Amendment (“Excessive bail shall not be required”); Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 1. An extended detention before a first appearance, whether or not there has been a valid determination of probable cause, substantially impinges upon and threatens all of these rights. The significant benefit resulting from the interposition of a neutral judicial officer into the post-arrest detention situation with regard to the protection of these rights cannot be ignored. Although the absence of a first appearance here may not have caused a specific violation of any one of these rights as they have been interpreted by the Supreme Court, the ultimate effect of the omission here must be deemed a denial of due process. The tremendous burden placed on a presumptively innocent person by this type of prolonged detention cannot be permitted without more regard for that person’s basic rights under the Constitution.
United States v. Ragan, 176 F.2d 579, 584 (7th Cir.1949), does not preclude this holding. Ragan was a pre-Baker case and considered whether the failure to present defendant (a convicted murderer sentenced to death) before a magistrate after arrest rendered the defendant’s confession involuntary and thus inadmissible in evidence. Ragan concluded that because the confession was not a product of “intimidation, coercion, promises or oppressive and violent treatment,” the failure to present the defendant to a magistrate did not amount to such a denial of fundamental fairness as to prevent a fair trial. Id. Whether the lack of a first appearance renders a confession involuntary presents a different question from the issue here. While the absence of a timely first appearance may not be a basis for the exclusion of evidence, its absence here for eighteen days surely runs counter to the Constitution under the Fourteenth Amendment. We recently so held under the Fourteenth and Fourth Amendments with respect to a 42-hour detention without a probable cause hearing. Llaguno v. Mingey, 739 F.2d 1186, 1196 (7th Cir.1984) (pending rehearing en banc). While there was a probable cause hearing before Coleman was placed in custody, the Llaguno decision is at least a forerunner of the result we reach today.
This opinion does not attempt to delineate every contour of a constitutional right to a timely first appearance under the Due Process Clause. To do so would be inconsistent with our reliance on Rochin, supra. Our holding today is limited to the extreme circumstances of this case. To specify after what period of time a given detention not accompanied by a first appearance becomes constitutionally infirm, or to outline which of the various elements of a first appearance are minimally necessary to satisfy the due process requirement would amount to inappropriate judicial legislation. In the case before us, none of the procedural protections afforded by a first appearance were ever granted the plaintiff over the course of his nearly three-week incarceration despite his protests of innocence, requests for a court appearance, and ultimate release. But the conclusion that plaintiff suffered a violation of his constitutional rights does not end the inquiry. Under Beard v. O’Neal, 728 F.2d 894, 898 (7th Cir.1984), plaintiff must prove that the defendant caused the claimed constitutional violation. While it is doubtful that Coleman has carried that burden, we do not resolve this case on that ground. The qualified immunity available to the prosecutor from § 1983 liability in this situation (infra note 9) probably explains the bringing of this action solely against Sheriff Frantz despite the fact that the prosecutor’s inaction caused plaintiff’s injury. See supra p. 721. Nevertheless, the prosecutor’s intransigence cannot, in our view, be transferred to the defendant who made every effort to secure a timely first appearance for plaintiff and whose actions were not plainly inconsistent with then applicable constitutional law. E.g., Perry v. Jones, supra.
Ill
We affirm the district court judgment because the defendant is entitled to a qualified or good faith immunity. Under the standard set forth in Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396, government officials entitled to a qualified immunity “generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Since Frantz did not violate any then clearly established constitutional right of which a reasonable person would have known, he was justified in asserting the qualified immunity defense.
The proper framework for determining the existence and nature of an immunity for defendants from Section 1983 liability was recently reiterated by the Supreme Court in Tower v. Glover, — U.S. —, 104 S.Ct. 2820, 81 L.Ed.2d 758. Justice O’Connor noted for a unanimous Court that despite the silence of Section 1983 on the question of immunities, the Supreme Court since 1951 has consistently allowed certain “substantive doctrines of privilege and immunity” to limit liability thereunder. — U.S. at-, 104 S.Ct. at 2825. The Court reaffirmed the standard first enunciated in Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128, as the basic analysis for determining the existence of Section 1983 immunity. Glover repeated the Imbler standard and explained that “[i]f an official was accorded immunity from tort actions at common law when the Civil Rights Act was enacted in 1871, the Court next considers whether § 1983’s history or purposes nonetheless counsel against recognizing the same immunity in § 1983 actions.” Glover, — U.S. at-, 104 S.Ct. at 2825.
Executive officials as a general rule enjoy the protection of a qualified or good faith immunity. See Harlow v. Fitzgerald, 457 U.S. at 807, 102 S.Ct. at 2732. Certain high level executives may enjoy an absolute immunity in particular circumstances, and are always afforded a broader “range of discretion” under the qualified immunity than “officials with less responsibility.” Id. at 806, 102 S.Ct. at 2732; Scheuer v. Rhodes, 416 U.S. 232, 247, 94 S.Ct. 1683, 1692, 40 L.Ed.2d 90.
This Court has recognized qualified immunity for public officials acting within the scope of their responsibilities, noting that “principled and conscientious governmental decisionmaking * * * can only be achieved by affording government officials some measure of protection from personal liability arising out of the exercise of their discretion and the performance of required duties.” Crowder v. Lash, 687 F.2d 996, 1006 (7th Cir.1982). See Johnson v. Brelje, 701 F.2d 1201, 1210 (7th Cir.1983). A number of cases, relying upon relevant Supreme Court cases that discuss the immunity issue, have held that sheriffs are entitled to assert a qualified immunity. See Coleman v. Turpen, 697 F.2d 1341, 1344 (10th Cir.1982) (qualified immunity available regarding claim involving sheriffs retention of suspect’s money as evidence pursuant to Oklahoma statute); Barrett v. Thomas, 649 F.2d 1193, 1201 (5th Cir.1981), certiorari denied, 456 U.S. 925, 102 S.Ct. 1969, 72 L.Ed.2d 440 (sheriff entitled to claim qualified immunity regarding his firing of employees supporting his opponent, but sheriff failed to plead immunity in timely fashion); Taylor v. Mayone, 626 F.2d 247, 254 (2d Cir.1980) (sheriff entitled to claim qualified immunity regarding incident involving pursuit and shooting at plaintiff); Norton v. Liddel, 620 F.2d 1375, 1382 (10th Cir.1980) (sheriff entitled to claim qualified immunity concerning alleged conspiracy to perpetrate a malicious prosecution); Douthit v. Jones, 619 F.2d 527, 532-533 (5th Cir.1980) (sheriff entitled to assert qualified immunity with respect to wrongful incarceration claim); Zook v. Brown, 575 F.Supp. 72, 77 (C.D.Ill.1983) (sheriff entitled to qualified immunity regarding his disciplining of employee pursuant to Illinois statute).
Although the Supreme Court has never expressly decided the type of immunity to be accorded sheriffs, it has recognized the “traditional good-faith immunit[y] enjoyed by * * * sheriffs,” Owen v. City of Independence, 445 U.S. 622, 643, 100 S.Ct. 1398, 1412, 63 L.Ed.2d 673. It seems logical to this Court and consistent with relevant Supreme Court authority on this subject to characterize a county sheriff as an official “with less complex discretionary responsibilities,” Harlow, 457 U.S. at 807, 102 S.Ct. at 2733, required to “make decisions” and “implement decisions,” Scheuer, 416 U.S. at 241-242, 94 S.Ct. at 1689, who is entitled to assert good faith or qualified immunity. As evidenced by the present case, a sheriff is commanded or enabled to act by statutes over which he has no control which require implementation and some degree of interpretation on his part. See Coleman v. Turpen and Zook v. Brown, both supra.
Plaintiff asserts that the qualified immunity is only available to public officials when their acts are “discretionary,” and that in this instance Sheriff Frantz had no discretion in fulfilling his obligation to take plaintiff before the Wells Circuit Court. Therefore, it is claimed that the defendant is entitled to no immunity as to this Section 1983 action. Plaintiff appears to argue that the basis for the public officials’ qualified immunity is the common law ministerial-discretionary distinction. But there is no evidence provided by the plaintiff or discovered by us indicating that the ministerial-discretionary distinction is the common law foundation for Section 1983 immunity. Further, the Supreme Court has cast doubt upon the relevance of this common law doctrine to Section 1983 immunity considerations and upon the wisdom of utilizing the distinction as a basis for determining the existence of an immunity from Section 1983 liability.
This Court also considers that as a matter. of public policy, it would be unwise to engage in a case by case determination of Section 1983 immunity based upon the ministerial versus discretionary nature of the particular official act challenged. Not only would such an analysis require repeated judicial applications of the unclear ministerial-discretionary distinction, but more importantly it would do little to forward the purposes of the immunity. Qualified immunity implements “two mutually dependent rationales,” Scheuer, 416 U.S. at 240, 94 S.Ct. at 1688, viz., the need to “encourage the vigorous exercise of official authority” as required by the public good, Butz v. Economou, 438 U.S. 478, 506, 98 S.Ct. 2894, 2911, 57 L.Ed.2d 895; Harlow, 457 U.S. at 807, 102 S.Ct. at 2732, and the need to avoid unfairly subjecting the official to liability for the good faith exercise of discretion pursuant to a legal obligation. Scheuer, 416 U.S. at 240, 94 S.Ct. at 1688. The use of a ministerial-discretionary distinction by courts would provide these officials with little or no guidance as to the protection afforded them.
It does seem reasonable, however, to require that a lower level public official such as a sheriff demonstrate that, based on objective circumstances at the time he acted, his actions were undertaken pursuant to the performance of his duties and within the scope of his authority. See Barker v. Norman, 651 F.2d 1107, 1121 (5th Cir.1981). We hold that defendant Frantz made an adequate showing to the district court under the above standard. Here the Sheriff was under a duty to take the accused plaintiff before a judge of the Wells Circuit Court. The duty arose either from the then statutorily prescribed arrest warrant form or from the Indiana statute then in effect seemingly requiring a first appearance (I.C. § 35-l-8-l(a), supra, n. 2) or both. That statute implicitly placed some duty on the officers of the Wells Circuit Court to cooperate with the arresting officer in bringing about a first appearance; yet it makes no attempt to allocate responsibility among the concerned parties. Further, the statute contained no time limit nor specific procedures for the Sheriff to follow in accomplishing the task. The warrant form itself, while requiring the presentation of the accused “instanter,” did not instruct the Sheriff as to the proper mode of meeting his obligation. The district court concluded, and the defendant continues to argue, that the Sheriffs duty was fulfilled in accordance with custom by promptly returning the arrest warrant to the clerk of court, thus notifying the court of the plaintiffs status, and by repeatedly calling the prosecutor’s office to arrange a time for the plaintiff’s court appearance pursuant to the Wells Circuit Court’s own procedure. While it would have been preferable for the Sheriff to have done even more to fulfill his duty under I.C. § 35-1-8-l(a), it cannot be said that there was an adequately defined duty upon him to undertake formally the futile act {supra n. 10) of attempting to present Coleman to the Wells Circuit Court. His conduct, based on objective circumstances, was reasonably undertaken pursuant to the performance of his duties and within the scope of his authority. To subject him to liability in this instance on the basis of his interpretation of an unclear duty under statute and warrant, where his interpretation was consistent with the Wells Circuit Court’s own procedures, would penalize him for an error in judgment, contrary to the recognized purpose of the qualified immunity for public officials.
Defendant sheriff’s alleged violation of Indiana law does not bar his ability to claim a qualified immunity under Davis v. Scherer, — U.S.—, 104 S.Ct. 3012, 82 L.Ed.2d 139. While Davis holds that as a general rule an official’s violation of a clear statute or regulation does not deprive the official of qualified immunity from damages for violation of other statutory or constitutional provisions (— U.S. at —, 104 S.Ct. at 3019), the Court left open the possibility that a federal or state official could “lose their immunity by violating the clear command of a statute or regulation— of federal or of state law — [if] that statute or regulation provides the basis for the cause of action sued upon.” — U.S. at -n. 12, 104 S.Ct. at 3020 n. 12. As in Davis, plaintiff here makes no claim that the alleged violation of state law is itself actionable under § 1983 or bears upon the claim of constitutional right that plaintiff asserts under § 1983. — U.S. at -, 104 S.Ct. at 3019. Davis recognized that in certain circumstances violations of statutes and regulations, apart from a violation of the Constitution, themselves form a basis for a § 1983 claim (see — U.S. at-n. 12, 104 S.Ct. at 3020 n. 12 (citing Harlow, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396; Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d, 555), and that the qualified immunity is unavailable to defendants where the statutory right in such cases is clearly established. Here plaintiff’s § 1983 claim rests solely on alleged violations of the Constitution (UK 3, 13 of complaint). Further, Davis does not indicate that the unavailability of the qualified immunity with respect to a § 1983 claim based on violation of statute could bar the same defendant from asserting the immunity against á claim based on the Constitution. — U.S. at-n. 12, 104 S.Ct. 3020 n. 12.
Finally, this loss of immunity with regard to statutorily based § 1983 claims is limited to instances where a clear command of a statute or regulation has been violated. Nahmod, supra p. 5, at 252 n. 168. As discussed above, supra p. 16, the Indiana statutes as of the time of the challenged conduct did not present such a clear command to the Sheriff.
IY
Under the standard set forth in Harlow v. Fitzgerald, supra, defendant Frantz is shielded from Section 1983 liability for damages so long as his conduct did not violate a clearly established constitutional right of which a reasonable person would have known at the time the challenged conduct took place. Plaintiffs claim that his 18-day detention violates a “nationally recognized” constitutional right is untenable. This Court has been unable to discover one case that expressly holds that a constitutional violation is caused by a failure to afford the accused an “initial appearance” after arrest pursuant to a valid warrant. The only courts expressly considering plaintiffs type of argument have rejected it. See Perry v. Jones, supra; Anderson v. Nosser, supra.
Most of the authority cited by plaintiff as supporting his proposition considers the constitutionality of prolonged pre-trial detentions under the Fourth and Fourteenth Amendments where there allegedly has been no valid determination of probable cause by a judicial officer. See Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54; Fisher v. Washington Metropolitan Area Transit Authority, 690 F.2d 1133 (4th Cir.1982); Patzig v. O’Neal, 577 F.2d 841 (3d Cir.1978); Daly v. Pedersen, 278 F.Supp. 88 (D.Minn.1967). Gerstein holds that a judicial determination of probable cause is a “prerequisite to extended restraint of liberty.” 420 U.S. at 114, 95 S.Ct. at 863. The right to a valid determination of probable cause by a judicial officer, however, is not at issue here because that right was respectéd by the Wells County Court (593 F.Supp. at 32).
While Baker, supra, is certainly relevant to this issue, the case lacks specific discussion of a right to a first appearance and therefore does not “clearly establish” such a right. Anderson v. Nosser, supra, on which plaintiff largely depends, held that a Police Chiefs failure to take plaintiffs before a magistrate before incarcerating them was only a violation of Mississippi laws so that their federal allegations fell. Instead of supporting plaintiff, Anderson consequently supports defendant on the only count before us.
In summary, as a matter of law, we hold that plaintiffs constitutional right to a “first appearance” before a judicial officer following arrest pursuant to a valid warrant based on a determination of probable cause, setting of bond and notification of charges was not “clearly established” within the meaning the Supreme Court has given that term. See e.g., Procunier v. Navarette, 434 U.S. 555, 562-564, 98 S.Ct. 855, 859-861, 55 L.Ed.2d 24. In addition, defendant did what he could to secure an early first appearance for plaintiff. He was therefore shielded from Section 1983 liability through his qualified immunity.
The district court’s order granting defendant’s motion for summary judgment is affirmed.
. Most states have statutes that require a prompt appearance of arrested persons before a judicial officer. A few statutes impose a specific time limit within which the arrestee must be produced, but most express a timeliness requirement utilizing terms such as "without unnecessary delay” or "forthwith." See A.L.I., Model Code of Pre-Arraignment Procedure 577-579, Appendix I (1975).
A first appearance takes
Question: What is the total number of respondents in the case that fall into the category "groups and associations"? Answer with a number.
Answer:
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songer_genresp2
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C
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
MITCHELL et al. v. REICHELDERFER et al., Commissioners of District of Columbia.
No. 5274.
Court of Appeals of District of Columbia.
Argued Jan. 7, 1932.
Decided Feb. 23, 1932.
Fred B. Rhodes and Marcus Borchardt, both of Washington, D. C., for appellants.
William W. Bride and Vernon E. West, both of Washington, D. C., for appellees.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.
MARTIN, Chief Justice.
This is an appeal from an order of the lower eourt ratifying and confirming the verdict of a jury in a condemnation ease.
On May 13, 1928, the commissioners of the District of Columbia filed a petition under the provisions of subchaptor 1 of chapter 15 of the Code of Laws for the District of Columbia (D. C. Code 1929, T. 25, § 52 ct seq.), seeking the condemnation of land for •flie extension of Irving street between Eighteenth and Twentieth Streets Northeast, and for the widening of Eighteenth street between Irving and Jackson Streets Northeast.
Among the lands sought to be condemned were two tracts belonging’, respectively, to Lloyd H. Van Kirk and Guy V. Collins. Notice of the proceeding was served personally upon them as required by section 491e of the D. C. Code (I). C. Code 1929, T. 25, § 54).
Public notice also was regularly given of the proceeding by advertisement in three daily newspapers published in tile District, warning and requiring “all persons having any interest in the proceeding” to appear in court at a day named in the notice, and to continue in attendance until the court shall have made its final order ratifying’ and confirming the award of damages and the assessment of benefits by the jury as provided by the act.
A lawful jury was then impaneled, sworn, and instructed by the court, and, after viewing the premises and hearing testimony, the jury on December 9, 1929, returned its verdict awarding damages for the lands taken, and assessing certain amounts against various parcels of land for benefits from the improvement.
On December 28, 1929, Van Kirk and Collins, being the only appellants whose lands were tajeen by condemnation, filed objections and exceptions to the verdict of the jury, both as to the amount of the damages allowed for the lands taken and as to the assessments for benefits levied against other lands owned by them. These objections and exceptions were overruled by the court on April 4,1930.
On April 10, 1930, the court, in conformity with the Act of Congress of May 29; 1928, 45 Stat. 953 (D. C. Code 1929, T. 25, § 71), gave lawful notice to the owners of lands which were assessed for benefits, of the amount of such assessments, and ordered “that objections or exceptions to said verdict of property owners assessed for benefits (no part of whose land was condemned in this proceeding) be filed in said cause on or before the 25th day of April, 1930.”
Thereupon on April 24 and 25, 1930, appellants Touey, Demas, and Mitchell, who were not owners of any land taken by the condemnation hut owned lands which were assessed for benefits, filed tbair respective objections and exceptions to the assessments found by the jury. The court, however, overruled all objections and exceptions respecting benefits charged against the several tracts owned by appellants, and ratified and confirmed the verdict. These appeals were then taken.
Two propositions are urged by appellants in support of their appeal: First, a claim that appellants were entitled to have their objections on the question of benefits heard by the condemnation jury; and, second, that the amounts assessed as benefits were excessive and not commensurate with the aetual benefits to their properties.
The first of these claims is not sustained by the law. The mere filing of objections and exceptions to the verdict of a condemnation jury does not entitle a property owner to reopen and retry the case to the same or another jury. The procedure in relation to such complaints is governed by section 491h of the D. C. Code (D. C. Code 1929, T. 25, § 59), which provides as follows: “The said court shall hear and determine any objections or exceptions that may be filed to any verdict of the jury and shall have power to vacate and set any verdict aside, in whole or in part, when satisfied that it is unjust or unreasonable, in which event the court shall order the jury commission to draw from the special box the names of as many persons as the court may direct, and from among the persons so drawn the court shall thereupon appoint a new jury of five capable and disinterested persons, who shall proceed to ascertain the damages or assess the benefits, or both, as the case may be, in respect of the land a,s to which the verdict may be vacated, as in the ease of the first jury. * * * ”
The procedure thus provided designs to give personal notice of the proceeding to those whose lands may he taken for the improvement, and to give notice by publication to all other persons having a.ny interest in the proceeding, and, in event of dissatisfaction by any such person with the verdict, to permit of the filing of objections and exceptions against the assessments of damages or benefits. Such objections and exceptions, however, are in the nature of a motion for a new trial, and are not io be tried by the condemnation jury, but are to be heard by the court, upon affidavits if such are filed, and only in case they are sustained by the court shall another jury be impaneled to retry the issue. Clapp v. Macfarland, 20 App. D. C. 224, 230. Moreover the provision for separate juries to try such issues is permissible. “Whether the estimate of damages aud the assessment of benefits shall be intrusted to the same or to different commissioners is a matter wholly within the decision of the legislature, as justice and convenience may appear to it to require.” Bauman v. Ross, 167 U. S. 548, 17 S. Ct. 966, 983, 42 L. Ed. 270.
In Wight v. Davidson, 181 U. S. 371, 382, 21 S. Ct. 616, 45 L. Ed. 900, upon facts similar to those in 'this case, the owners whose .lands were assessed for benefits claimed that the acts under which the proceeding was had were unconstitutional, upop the ground that they contained no provision for notifying the owners of property to be assessed in advance of the assessment, nor at any time pending the consideration thereof by the condemnation jury, nor any mode whereby the objections of the owners whose land is sought to be charged could be heard or considered, or by which any objection to the assessment might be made effective. The Supreme Court overruled this contention, and sustained the validity of assessments founded upon a procedure similar to that pursued under the statutes in the present ease.
In Wilkinson v. Dougherty, 58 App. D. C. 81, 24 F.(2d) 1007, 1011, we held that 'assessments for-benefits levied in a condemnation proceeding against the owners of property who had no notice at any stage of the proceeding were void. In the opinion by Mr. Justice Robb it is said: “Moreover, there is no practical reason why, after the jury has returned its verdict and before its confirmation, the procedure followed in Wight v. Davidson should not be followed and actual notice be served upon those against whom assessments have been made, that they may show cause, if any they have, why the verdict should not be confirmed. ? * , It is thus apparent that had actual notice been given appellant after the return of the verdict, he could have protected his interests through the filing of objections or exceptions.”
In the instant case each of the appellants had lawful notice of the proceeding prior to any action taken by the court therein. Van Kirk and Collins were served personally with timely notice. The public notice required by section 491e, supra, was duly given. Mitchell, Touey, and Demás were served with notice after the return of the verdict of the assessments for benefits upon their lands, as required by Act of Congress' approved May 29, 1928, supra. Acting, upon such notice, the appellants filed their objections and exceptions, which were duly considered and decided by the court. All had their day in court. Wight v. Davidson, supra.
As to the questions of fact raised by appellants concerning the amounts found by the jury for damages and benefits, it need only be said that the record does not present evidence sufficient to sustain the objections and exceptions of appellants to the verdict.
The order of the lower court is therefore affirmed, with costs.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
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songer_fedlaw
|
D
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What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
THOMSON v. PENNSYLVANIA R. CO.
No. 7131.
Circuit Court of Appeals, Sixth Circuit.
Feb. 11, 1937.
Harford A. Toland, of Columbus, Ohio (Paul M. Herbert, of Columbus, Ohio, on the brief), for appellant.
R. H. Treffinger, of Columbus, Ohio (Henderson, Burr, Randall & Porter, of Columbus, Ohio, on the brief), for appellee.
Before HICKS, SIMONS, and ALLEN, Circuit Judges.
SIMONS, Circuit Judge.
The appellant, a citizen of Ohio, while employed by the appellee, a Pennsylvania corporation, at the latter’s engine house machine shop in the city of Columbus, Ohio, was injured. He brought suit for damages, based upon the negligence of his employer in failing to furnish him with proper tools for the performance of the work upon which he was engaged, and upon appeal assigns error in the direction of a verdict for the defendant.
On the day of the accident the appellant was engaged in turning a main engine driving rod by means of a steel bar inserted into one of the bearings of the rod. His explanation of the accident is that the bar slipped from the bearing and caused him to be thrown violently to the floor. A main driving rod is one that gives direct power from the steam chamber of a locomotive to its wheels. The rod here in question was 6' long, 6" wide, and 4" thick, and weighed somewhere between 1650 and 2000 pounds. It rested upon horses approximately 30 inches from the floor. At each end of the rod is a hole in which is seated a circular brass bushing or bearing, the hollow inside of which is approximately 10 inches in diameter and 8 inches deep extending through and beyond the sides of the rod. In fitting new brasses to the rod it became necessary to turn the rod on the horses or trestle. For this purpose a hexagon shaped steel pin bar 6% to 7 feet long, and about 1% inches in diameter, was provided. The pin bar was slightly flat at one end and tapered for about 2 inches at the opposite end. There was also available a chain hoist, the use of which was optional, although the plaintiff testified that at the time of the accident the chain hoist was not in position where it could be safely employed to turn the rod upon which he was engaged.
In turning the rod with the pin bar the practice was to insert the bar in the bearing hole so that it extended 3 inches below the lower end of the bearing, making a fulcrum on the upper and opposite end of the bearing and pulling over toward the operator until the rod was based upon it narrow edge. The turning operation was completed by the workman going to the other side of the rod and similarly by means of the pin bar turning the rod over upon its flat side. The appellant, when injured, had entered upon the first step of the turning operation. He was a slight man, weighing but 123 pounds, and upon his first effort was unable to bring the rod over. As he describes the accident, he had inserted the rod in the bearing hole in the usual manner, and, when he had raised it about two-thirds of the way he put his left foot up against the end of the rod to keep it from tipping, and got out as far as he could on the pin bar. His right foot was 4 to 6 inches from the floor, he was pulling with the right foot extended downward, and “this pin bar slipped out, shooting me to the floor like I was shot out of a caterpillar.”
In support of his contention that the steel pin bar was not a safe tool, the appellant testified that previous to his employment in the defendant’s roundhouse machine shop he had been employed for about five years in the defendant’s fit-up shop at Columbus, first as a machinist’s helper and later as a machinist; that there he had been instructed in turning rods to use a wooden pole 4%' to 5' long and 2%" square at its lower end and rounded at the grip end, that he was not to use a steel pin bar, as it was liable to slip out of the bearing. Upon his return to the employ of the defendant after 2 years’ leave of absence, and after his transfer to the roundhouse machine shop, he noticed the absence of wooden poles for use in turning engine rods. He asked the foreman where the wooden poles were and was told that they used the steel pin bar and that he was to use it. Two weeks later he asked the foreman “Are you going to get any wooden poles here to work with?” and the reply was, “No, we break too many — the other men use a steel pin bar and you go ahead and use it.” Later he again asked that wooden poles be supplied and was told to “forget it.” He told the foreman that he had heard of a workman known as “Sailor Boy” having been injured using a pin bar, and. the foreman then promised he would get some wooden poles. This allayed his fears and he returned to work. On the morning of the accident, finding it difficult to turn the rod, he asked a fellow workman to aid him, and, while they were both pulling on the pin bar inserted in the bearing, the foreman came to him and said: “This is a one man job. If jrou can’t do the work alone go to the office and get your time.” He then continued the work alone..
The defense to the action below was a general denial and the affirmative defense of assumption of risk in the use of a simple tool, and election by the appellant to use the pin bar rather than the chain hoist. Ruling upon the motion for directed verdict at the conclusion of all of the evidence, the District Judge, finding no question to exist as to realization of real or fancied danger by the appellant in the use of the steel bar, and in reliance upon our decision in Hallstein v. Pennsylvania R. Co., 30 F.(2d) 594, granted the motion on the ground that the appellant had assumed the risk incurred in the use of the tool.
Before reaching any question of assumption of risk, however, the primary question is whether there has been actionable negligence on the part of the defendant, and this, 'of course, involves not only failure to exercise due care but the causative relation of such failure to the injury. The burden of proof being upon the plaintiff to establish actionable negligence, the issue as to both its elements is clearly raised by a motion for peremptory instructions based upon the failure of the evidence to sustain a verdict. While all important facts were sharply in issue, we view the plaintiff’s evidence, as under familiar rules we must, in the light most favorable to him. The only asserted neglect on the part of his employer was the furnishing of the steel pin bar instead of a wooden pole as a tool for .the turning of an engine drive rod, and this, neglect is said to constitute negligence because the steel bar is not as safe a tool as a wooden pole. But this we think falls short of comprising substantial evidence that the steel bar is not a reasonably safe tool for such purpose in the hands of an experienced workman following instructions and familiar common practice governing its use. The rule is well settled that the master is not bound to provide the safest and best contrivance in order to meet the legal requirement of reasonable care, Louisville & N. R. Co. v. Davis, 75 F.(2d) 849, 850 (C.C.A. 6), and cases there cited. Nor is reasonable scientific judgment subject to review by a jury.. Hylton, Administratrix v. Southern Ry. Co., 87 F.(2d) 393, decided by us January 13, 1937. While there is evidence that under some circumstances a wooden pole may be less prone to .slip .than a steel bar, there is also evidence, uncontroverted, that it is more prone to break, and,, without more proof than the record affords, it would, of course, be submitting, the issue but to speculation and guess to permit the jury to pass upon the relative-safety of the two instruments. Moreover, it is indisputably established by the record that the steel bar, without thought of' hazard, had been in use for turning operations in the machine shop for many years — 15 years according to the memory of one witness and 27 years within the-memory of another. The only proof at all indicative of danger in the use of the steel bar was a bit of hearsay in reference to injury to the workman known as-Sailor Boy, but even this fails to show how the accident happened or that it was-due to the slipping of the bar in the rod bearing. Under these circumstances, there-was failure of evidence to' show actionable negligence, afld no error was committed in peremptorily instructing the jury for the defendant.
Another consideration supports our conclusion. The pin bar is a lever, and a lever is not only a simple tool but indeed the simplest of all tools. Its function and manner of use is intuitively grasped even by those least accustomed to tools. It is, we think, incredible that the pin bar, inserted into the bearing hole as described, with force exerted thereon as indicated, could have slipped. It is the law of the lever, to be found in any elementary text-book on physics, that the moment of the effort is equal to the moment of the resistance. Theoretically, therefore, the force operating to retain the bar in position equals the force exerted at the point of its application. A proper positioning of the lever would have effectively locked it against movement, and neither the bar, the resistance, nor the fulcrum failed. The irresistible inference therefore is that the bar was not properly inserted in the first instance or was permitted to get out of place between the appellant’s first and second effort to turn the rod. Failing in credibility since necessary physical facts refute it, the evidence in this respect does not rise to the dignity of substantial evidence. Southern Railway Co. v. Walters, 284 U.S. 190, 52 S.Ct. 58, 76 L.Ed. 239; Ristucci v. Norfolk & W. Ry. Co., 60 F.(2d) 28, 29 (C.C.A. 6). Our conclusion on the question of actionable negligence makes it unnecessary to consider the issue with respect to assumption of risk.
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:
|
songer_r_bus
|
0
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "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.
UNITED STATES of America, Plaintiff-Appellee, v. Donald E. MEEKER, Defendant-Appellant.
No. 76-1878.
United States Court of Appeals, Seventh Circuit.
Argued April 12, 1977.
Decided July 26, 1977.
As Amended on Denial of Rehearing Sept. 28, 1977.
Harlan Heller, Mattoon, 111., for defendant-appellant.
Warren E. White, Asst. U. S. Atty., Dan-ville, 111., for plaintiff-appellee.
Before TONE and BAUER, Circuit Judges, and JAMESON, Senior District Judge.
The Hon. William J. Jameson, United States District Court for the District of Montana, is sitting by designation.
BAUER, Circuit Judge.
Meeker asks us to overturn his conviction for failing to report income on his 1970 individual and corporate income tax returns. He argues that the prosecutor’s repeated use of improper and prejudicial questions in examining witnesses before the jury denied him a fair trial. We reverse.
Meeker was charged with failing to report gross receipts of his sole proprietorship and wholly owned corporation for the 1970 tax year. The Government presented evidence at trial of $167,741.92 in receipts defendant received on behalf of his proprietorship that he failed to report on his 1970 individual income tax return, and $94,972.04 in receipts he received on behalf of his corporation that he failed to report on his 1970 corporate income tax return.
Meeker bases his appeal on four questions the prosecutor asked of witnesses at trial. Objections to each of the questions were sustained, and the jury was instructed to disregard each. The defendant argues that the cumulative effect of the questions was so prejudicial that he was denied a fair trial.
The first challenged question was asked on redirect examination of Bernadine Ren-nels, a former bookkeeper of the defendant. The prosecutor asked Mrs. Rennels,
“Do you recall Mr. Meeker commenting to you that he always is going to owe additional tax because he takes questionable deductions and things like this?”
This question is improper both as to form, being a leading question on redirect examination, and as to substance. The manifest implication of the question — that Meeker told his bookkeeper that he underpaid his taxes by taking questionable deductions and “things like this” — was not supported by evidence the prosecutor was prepared to present, and such evidence was, at best, of questionable admissibility. It is axiomatic that an attorney, and a prosecutor in particular, should not allude to matters that he has no reasonable basis to believe are relevant to the case or that will not be supported by admissible evidence. ABA Code of Professional Responsibility DR7-106(c); Am. C. of Trial Lawyers Code of Trial Conduct 14(c). This rule is, of course, directed in particular toward matters that are prejudicial to an opponent’s case, as was the statement here.
The prosecutor admitted at oral argument before this Court that he had no prior knowledge that Meeker had made such a statement to his bookkeeper. His only basis for the question was a statement Meeker had made to an IRS agent; a statement which, if admissible, would not support the implication in the prosecutor’s question.
In the second challenged question, the prosecutor asked David Dillon, an accountant who had prepared the defendant’s returns for 1970 and 1971,
“In layman’s terms regarding January 1, 1966, can you tell the jury how much unreported gross receipts the IRS audit discovered at that time?”
This question left the jury with the impression that Meeker had previously failed to report gross receipts. Such an implication is, of course, highly prejudicial to the defendant because the jury might infer from the implication of past illegal behavior that the defendant is more likely to have committed the crime for which he is presently standing trial. Given the possibility of the jury drawing this inference, evidence of such prior misconduct is admissible only if offered to prove such matters as motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Federal Rule of Evidence No. 404(b); see United States v. Fearns, 501 F.2d 486, 490-91 (7th Cir. 1974). In this instance, the question was not asked for a purpose sanctioned by Rule 404(b). The Government explains that the question was asked merely to help explain the background for a figure on Meeker’s 1970 individual income tax return. The highly prejudicial prior misconduct implication was unnecessary for such a purpose.
Moreover, the implication was false. The IRS did not determine that Meeker failed to report gross receipts in 1966. Rather, Meeker became liable to the IRS in 1966 for the tax on a substantial amount of his gross receipts as a result of the IRS’s imposition of a change in Meeker’s tax accounting procedure from the cash to the accrual method. To characterize the advancement of the payment of previously deferred tax liability as unreported gross receipts is an inexcusable distortion of the facts.
The Government asked the third question during the redirect examination of Robert E. Jenkins, an IRS agent who examined Meeker’s accounting records. The prosecutor asked the agent,
“His real method of accounting was not to report income, wasn’t it?”
As the Government conceded in its brief, this question was also improper. It constituted a leading question of a prosecution witness that contained an implication that the defendant was guilty of engaging in the conduct for which he was on trial. Such an inflammatory statement on the part of a prosecutor is never permissible.
Finally, the Government asked Meeker on cross-examination, referring to an accountant who had prepared returns for Meeker,
“Did he tell you that he would refuse to file a final return for you in 1969?”
The prejudicial implication in this question called for inadmissible opinion evidence that was not relevant to any aspect of the case, which only involved Meeker’s 1970 tax returns.
In propounding these questions, the prosecutor “overstepped the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense.” Berger v. United States, 295 U.S. 78, 84, 55 S.Ct. 629, 631, 79 L.Ed. 1314 (1935). Like the prosecutor censured in Berger, the prosecutor here was guilty of
“misstating the facts in his cross-examination of witnesses; of putting into the mouths of such witnesses things which they had not said; . . . [and] of assuming prejudicial facts not in evidence.” Id.
There is no excuse for such conduct on the part of an officer of the United States, and we hereby reprimand the prosecutor involved in this case for engaging in such behavior. He should heed well the Supreme Court’s declaration in Berger of the extra burden a prosecuting attorney bears in presenting his case:
“The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor — indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” Id. at 88, 55 S.Ct. at 633.
Having found the questions improper, we must decide whether they constituted grounds for reversal. Despite the sustaining of the defense’s objections and the judge’s admonitions to the jury to disregard each question, we find the questions propounded to have been so prejudicial to the defendant that we cannot deem them harmless.
We note three particular reasons for our finding. First, the questions invited the jury to convict Meeker on facts outside the record, some of which were patently untrue, and others of which were not admissible at trial.
“The prejudice to a defendant of inviting conviction on facts — if they be such — dehors the record is counter to the basic concept of fairness.” United States v. Grossman, 400 F.2d 951, 956 (4th Cir.), cert. denied, 393 U.S. 982, 89 S.Ct. 453, 21 L.Ed.2d 443 (1968).
Second, coming from the mouth of the representative of the United States, of whom the average jury expects the fairness and impartiality mentioned in Berger, such prejudicial questions “carry much weight against the accused when they should properly carry none.” Berger v. Unitd States, supra, 295 U.S. at 88, 55 S.Ct. 633.
Finally, as in Berger,
“we have not here a case where the misconduct of the prosecuting attorney was slight or confined to a single instance, but one where such misconduct was pronounced and persistent, with a probable cumulative effect upon the jury which cannot be disregarded as inconsequential.” Id. at 89, 55 S.Ct. at 633.
A new trial shall be granted.
Reversed and remanded.
. Defense counsel also moved for a mistrial after each question. All four mistrial motions were denied.
. The IRS permitted Meeker to spread out over a ten-year period the gross receipts that became taxable at the time Meeker started reporting income on an accrual basis. Ten percent of those gross receipts were reported on his 1970 individual tax return, and the question in dispute arose during consideration of that figure on Meeker’s 1970 return.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_source
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
FIDELITY & CASUALTY COMPANY, Appellant, v. STANDARD OIL COMPANY, Appellee.
No. 10402.
Circuit Court of Appeals, Sixth Circuit.
April 16, 1947.
Robert P. Hobson, of Louisville, Ky., for appellant.
Charles G. Middleton and Wm. Mellor, both of Louisville, Ky. (Bullitt & Middleton, of Louisville, Ky., of counsel), for ap-pellee.
Before PUCKS, ALLEN, and MARTIN, Circuit Judges.
PER CURIAM.
This cause was heard upon the transcript of record briefs and arguments of counsel; and on consideration whereof, it is ordered and adjudged that the judgment appealed from be'and the same is affirmed upon the grounds and for the reasons stated in the opinion of the District Court, 66 F.Supp. 603, filed August 2,1946.
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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sc_issue_4
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine 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.
GIGLIO v. UNITED STATES
No. 70-29.
Argued October 12, 1971
Decided February 24, 1972
Burger, C. J., delivered the opinion of the Court, in which all Members joined except Powell and Rehnquist, JJ., who took no part in the consideration or decision of the case.
James M. La Rossa argued the cause and filed a brief for petitioner.
Harry R. Sachse argued the cause for the United States. On the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Jerome M. Feit, and Beatrice Rosenberg.
Mr. Chief Justice Burger
delivered the opinion of the Court.
Petitioner was convicted of passing forged money orders and sentenced to five years’ imprisonment. While appeal was pending in the Court of Appeals, defense counsel discovered new evidence indicating that the Government had failed to disclose an alleged promise made to its key-witness that he would not be prosecuted if he testified for the Government. We granted certiorari to determine whether the evidence not disclosed was such as to require a new trial under the due process criteria of Napue v. Illinois, 360 U. S. 264 (1959), and Brady v. Maryland, 373 U. S. 83 (1963).
The controversy in this case centers around the testimony of Robert Taliento, petitioner’s alleged cocon-spirator in the offense and the only witness linking petitioner with the crime. The Government’s evidence at trial showed that in June 1966 officials at the Manufacturers Hanover Trust Co. discovered that Taliento, as teller at the bank, had cashed several forged money orders. Upon questioning by FBI agents, he confessed supplying petitioner with one of the bank’s customer signature cards used by Giglio to forge $2,300 in money orders; Taliento then processed these money orders through the regular channels of the bank. Taliento related this story to the grand jury and petitioner was indicted; thereafter, he was named as a coconspirator with petitioner but was not indicted.
Trial commenced two years after indictment. Taliento testified, identifying petitioner as the instigator of the scheme. Defense counsel vigorously cross-examined, seeking to discredit his testimony by revealing possible agreements or arrangements for prosecutorial leniency:
“[Counsel.] Did anybody tell you at any time that if you implicated somebody else in this case that you yourself would not be prosecuted?
“[Taliento.] Nobody told me I wouldn’t be prosecuted.
“Q. They told you you might not be prosecuted?
“A. I believe I still could be prosecuted.
“Q. Were you ever arrested in this case or charged with anything in connection with these money orders that you testified to?
“A. Not at that particular time.
“Q. To this date, have you been charged with any crime?
“A. Not that I know of, unless they are still going to prosecute.”
In summation, the Government attorney stated, “[Tali-ento] received no promises that he would not be indicted.”
The issue now before the Court arose on petitioner’s motion for new trial based on newly discovered evidence. An affidavit filed by the Government as part of its opposition to a new trial confirms petitioner’s claim that a promise was made to Taliento by one assistant, DiPaola, that if he testified before the grand jury and at trial he would not be prosecuted. DiPaola presented the Government’s case to the grand jury but did not try the case in the District Court, and Golden, the assistant who took over the case for trial, filed an affidavit stating that DiPaola assured him before the trial that no promises of immunity had been made to Taliento. The United States Attorney, Hoey, filed an affidavit stating that he had personally consulted with Taliento and his attorney shortly before trial to emphasize that Taliento would definitely be prosecuted if he did not testify and that if he did testify he would be obliged to rely on the “good judgment and conscience of the Government” as to whether he would be prosecuted.
The District Court did not undertake to resolve the apparent conflict between the two Assistant United States Attorneys, DiPaola and Golden, but proceeded on the theory that even if a promise had been made by DiPaola it was not authorized and its disclosure to the jury would not have affected its verdict. We need not concern ourselves with the differing versions of the events as described by the two assistants in their affidavits. The heart of the matter is that one Assistant United States Attorney — the first one who dealt with Taliento— now states that he promised Taliento that he would not be prosecuted if he cooperated with the Government.
As long ago as Mooney v. Holohan, 294 U. S. 103, 112 (1935), this Court made clear that deliberate deception of a. court and jurors by the presentation of known false evidence \s> incompatible with “rudimentary demands of justice.” This was reaffirmed in Pyle v. Kansas, 317 U. S. 213 (1942). In Napue v. Illinois, 360 U. S. 264 (1959), we said, “[t]he same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.” Id., at 269. Thereafter Brady v. Maryland, 373 U. S., at 87, held that suppression of material evidence justifies a new trial “irrespective of the good faith or bad faith of the prosecution.” See American Bar Association, Project on Standards for Criminal Justice, Prosecution Function and the Defense Function §3.11 (a). When the “reliability of a given witness may well be determinative of guilt or innocence,” nondisclosure of evidence affecting credibility falls within this general rule. Napue, supra, at 269. We do not, however, automatically require a new trial whenever “a combing of the prosecutors’ files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict . . . .” United States v. Keogh, 391 F. 2d 138, 148 (CA2 1968). A finding of materiality of the evidence is required under Brady, supra, at 87. A new trial is required if “the false testimony could ... in any reasonable likelihood have affected the judgment of the jury . . . .” Napue, supra, at 271.
In the circumstances shown by this record, neither DiPaola’s authority nor his failure to inform his superiors or his associates is controlling. Moreover, whether the nondisclosure was a result of negligence or design, it is the responsibility of the prosecutor. The prosecutor’s office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government. See Restatement (Second) of Agency § 272. See also American Bar Association, Project on Standards for Criminal Justice, Discovery and Procedure Before Trial §2.1 (d). To the extent this places a burden on the large prosecution offices, procedures and regulations can be established to carry that burden and to insure communication of all relevant information on each case to every lawyer who deals with it.
Here the Government’s case depended almost entirely on Taliento’s testimony; without it there could have been no indictment and no evidence to carry the case to the jury. Taliento’s credibility as a witness was therefore an important issue in the case, and evidence of any-understanding or agreement as to a future prosecution would be relevant to his credibility and the jury was entitled to know of it.
For these reasons, the due process requirements enunciated in Napue and the other cases cited earlier require a new trial, and the judgment of conviction is therefore reversed and the case is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.
During oral argument in this Court it was stated that DiPaola was on the staff of the United States Attorney when he made the affidavit in 1969 and remained on that staff until recently.
DiPaola’s affidavit reads, in part, as follows :
“It was agreed that if ROBERT EDWARD TALIENTO would testify before the Grand Jury as a witness for the Government, . . . he would not be . . . indicted. ... It was further agreed and understood that he, ROBERT EDWARD TALIENTO, would sign a Waiver of Immunity from prosecution before the Grand Jury, and that if he eventually testified as a witness for the Government at the trial of the defendant, JOHN GIGLIO, he would not be prosecuted.”
Golden’s affidavit reads, in part, as follows:
“Mr. DiPaola . . . advised that Mr. Taliento had not been granted immunity but that he had not indicted him because Robert Taliento was very young at the time of the alleged occurrence and obviously had been overreached by the defendant Giglio.”
The Hoey affidavit, standing alone, contains at least an implication that the Government would reward the cooperation of the witness, and hence tends to confirm rather than refute the existence of some understanding for leniency.
Question: What is the issue of the decision?
A. due process: miscellaneous (cf. loyalty oath), the residual code
B. due process: hearing or notice (other than as pertains to government employees or prisoners' rights)
C. due process: hearing, government employees
D. due process: prisoners' rights and defendants' rights
E. due process: impartial decision maker
F. due process: jurisdiction (jurisdiction over non-resident litigants)
G. due process: takings clause, or other non-constitutional governmental taking of property
Answer:
|
sc_petitioner
|
072
|
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.
ASTRA USA, INC., et al. v. SANTA CLARA COUNTY, CALIFORNIA
No. 09-1273.
Argued January 19, 2011 —
Decided March 29, 2011
Ginsbukg, J., delivered the opinion of the Court, in which all other Members joined, except Kagan, I, who took no part in the consideration or decision of the case.
Lisa S. Blatt argued the cause for petitioners. With her on the briefs were Jeffrey L. Handwerker, Anthony J. Frame, James P. Muehlberger, Robert J. McCully, Ina D. Chang, Paul J. Riehle, Lyndon M. Tretter, Richard D. Raskin, Scott D. Stein, Kirke M. Hasson, Brian W. Shaffer, Jennifer Beth Jordan, R. Ted Cruz, Allyson N. Ho, Peter N. Larson, Fletcher C. Alford, and Kelly J. Davidson.
Ginger D. Anders argued the cause for the United States as amicus curiae in support of petitioners. With her on the brief were Acting Solicitor General Katyal, Assistant Attorney General West, Deputy Solicitor General Kneedler, Michael S. Raab, Benjamin M. Shultz, Janice L. Hoffman, and Mark D. Polston.
David C. Frederick argued the cause for respondent. With him on the brief were Scott H. Angstreich, Scott K. Attaway, Greta S. Hansen, Juniper L. Downs, Sanford, Svetcov, Jeffrey W. Lawrence, Susan K. Alexander, and Aelish M. Baig
Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States of America by Kannon K Shanmugam and Robin S. Conrad; for the Pharmaceutical Research and Manufacturers of America by Paul D. Clement and Jeffrey S. Bucholtz; and for the Washington Legal Foundation by Daniel J. Popeo and Richard A. Samp.
Briefs of amici curiae urging affirmance were filed for the State of Kansas et al. by Steve Six, Attorney General of Kansas, and Stephen R. McAllister, Solicitor General, and by the Attorneys General for their respective jurisdictions as follows: Terry Goddard of Arizona, Peter J. Nickles of the District of Columbia, Chris Koster of Missouri, and Darrell V. McGraw, Jr., of West Virginia; for AARP et al. by Rochelle Bobroff, Stacy Ganan, and Michael Schuster; for A Coalition of 340B Entity Groups by Joel M. Hamme; for Contract Law Professors by Stephen M. Tillery; and for Federal Courts Professors by Michael J. Brickman, James C. Bradley, Nina H. Fields, and Lumen N. Mulligan.
Lawrence J. Joseph filed a brief for APA Watch as amicus curiae.
Justice Ginsburg
delivered the opinion of the Court.
Section 340B of the Public Health Services Act, 42 U. S. C. §256b (2006 ed. and Supp. IV), imposes ceilings on prices drug manufacturers may charge for medications sold to specified health-care facilities. Those facilities, here called “340B” or “covered” entities, include public hospitals and community health centers, many of them providers of safety-net services to the poor. The §340B ceiling-price program (340B Program) is superintended by the Health Resources and Services Administration (HRSA), a unit of the Department of Health and Human Services (HHS). Drug manufacturers opt into the 340B Program by signing a form Pharmaceutical Pricing Agreement (PPA) used nationwide. PPAs are not transactional, bargained-for contracts. They are uniform agreements that recite the responsibilities § 340B imposes, respectively, on drug manufacturers and the Secretary of HHS. Manufacturers’ eligibility to participate in State Medicaid programs is conditioned on their entry into PPAs for covered drugs purchased by 340B entities.
It is conceded that Congress authorized no private right of action under §340B for covered entities who claim they have been charged prices exceeding the statutory ceiling. This case presents the question whether 340B entities, though accorded no right to sue for overcharges under the statute itself, may nonetheless sue allegedly overcharging manufacturers as third-party beneficiaries of the PPAs to which the manufacturers subscribed. We hold that suits by 340B entities to enforce ceiling-price contracts running between drug manufacturers and the Secretary of HHS are incompatible with the statutory regime.
Congress placed the Secretary (acting through her designate, HRSA) in control of § 340B’s drug-price prescriptions. That control could not be maintained were potentially thousands of covered entities permitted to bring suits alleging errors in manufacturers’ price calculations. If 340B entities may not sue under the statute, it would make scant sense to allow them to sue on a form contract implementing the statute, setting out terms identical to those contained in the statute. Though labeled differently, suits to enforce § 340B and suits to enforce PPAs are in substance one and the same. Their treatment, therefore, must be the same, “[n]o matter the clothing in which [340B entities] dress their claims.” Tenet v. Doe, 544 U. S. 1, 8 (2005).
I
A
The 340B Program is tied to the earlier-enacted, much larger Medicaid Drug Rebate Program. Adopted by Congress in 1990, the Medicaid Rebate Program covers a significant portion of drug purchases in the United States. See GAO, J. Dicken, Prescription Drugs: Oversight of Drug Pricing in Federal Programs 1 (GAO-07-481T, 2007) (testimony before the Committee on Oversight and Government Reform, House of Representatives). To gain payment under Medicaid for covered drugs, a manufacturer must enter a standardized agreement with HHS; in the agreement, the manufacturer undertakes to provide rebates to States on their Medicaid drug purchases. 104 Stat. 1388-143, as amended, 124 Stat. 3290, 42 U. S. C. § 1396r-8(a). The amount of the rebates depends on the manufacturer’s “average” and “best” prices, as defined by legislation and regulation. § 1396r-8(c), (k).
Calculation of a manufacturer’s “average” and “best” prices, undertaken by the pharmaceutical company, is a complex enterprise requiring recourse to detailed information about the company’s sales and pricing. §1396r-8(k); 42 CFR §447.500-520 (2010). To enable HHS to calculate the rebate rate for each drug, manufacturers submit the relevant data to HHS on a quarterly basis. § 1396r-8(b)(3). With exceptions set out in the legislation, HHS is prohibited from disclosing the submitted information “in a form which discloses the identity of a specific manufacturer... [or] prices charged for drugs by such manufacturer.” § 1396r-8(b)(3)(D).
Under §340B, added in 1992, 106 Stat. 4967, as amended, 124 Stat. 823, manufacturers participating in Medicaid must offer discounted drugs to covered entities, dominantly, local facilities that provide medical care for the poor. See § 256b(a); § 1396r-8(a)(l) (2006 ed.). The 340B Program, like the Medicaid Drug Rebate Program, employs a form contract as an opt-in mechanism. The 340B Program also draws on the larger scheme’s pricing methodology. In their 340B Program contracts with HHS, called Pharmaceutical Pricing Agreements (PPAs), see supra, at 113, manufacturers agree to charge covered entities no more than predetermined ceiling prices, derived from the “average” and “best” prices and rebates calculated under the Medicaid Drug Rebate Program. § 256b(a)(l) (2006 ed., Supp. IV); see App. to Pet. for Cert. 165a-171a (PPA §I-II).
If a manufacturer overcharges a covered entity, HRSA may require the manufacturer to reimburse the covered entity; HRSA may also terminate the manufacturer’s PPA, § 1396r-8(b)(4)(B)(i), (v) (2006 ed.); App. to Pet. for Cert. 174a (PPA § IV(c)), which terminates as well the manufacturer’s eligibility for Medicaid coverage of its drugs, § 1396r-8(a)(1), (5). Currently, HRSA handles overcharge complaints through informal procedures. Manufacturer Audit Guidelines and Dispute Resolution Process, 61 Fed. Reg. 65412 (1996). The 2010 Patient Protection and Affordable Care Act (PPACA), Pub. L. 111-148, 124 Stat. 119, provides for more rigorous enforcement. The PPACA directs the Secretary to develop formal procedures for resolving overcharge claims. Id., at 826, 42 U. S. C. § 256b(d)(3)(A) (2006 ed., Supp. IV). Under those procedures, which are not yet in place, HRSA will reach an “administrative resolution” that is subject to judicial review under the Administrative Procedure Act (APA), 5 U. S. C. § 701 et seq. See 124 Stat. 827, 42 U. S. C. § 256b(d)(3)(C). In addition to authorizing compensation awards to overcharged entities, the PPACA provides for the imposition of monetary penalties payable to the Government. Id., at 824-825, 42 U. S. C. § 256b(d)(l)(B)(ii), (vi).
B
Respondent Santa Clara County (County), operator of several 340B entities, commenced suit against Astra and eight other pharmaceutical companies, alleging that the companies were overcharging 340B health-care facilities in violation of the PPAs to which the companies subscribed. The County styled its suit a class action on behalf of both 340B entities in California and the counties that fund those entities. Asserting that the 340B entities and the counties that fund them are the intended beneficiaries of the PPAs, the County sought compensatory damages for the pharmaceutical companies’ breach of contract.
The District Court dismissed the complaint, concluding that the PPAs conferred no enforceable rights on 340B entities. Reversing the District Court’s judgment, the Ninth Circuit held that covered entities, although they have no right to sue under the statute, could maintain the action as third-party beneficiaries of the PPAs. 588 F. 3d 1237, 1241 (2009).
We granted certiorari, 561 U. S. 1057 (2010), and now reverse the Ninth Circuit’s judgment.
II
As the County conceded below and before this Court, see 588 F. 3d, at 1249; Tr. of Oral Arg. 45, covered entities have no right of action under § 340B itself. “[Recognition of any private right of action for violating a federal statute,” currently governing decisions instruct, “must ultimately rest on congressional intent to provide a private remedy.” Virginia Bankshares, Inc. v. Sandberg, 501 U. S. 1083, 1102 (1991). See also Stoneridge Investment Partners, LLC v. Scientific-Atlanta, Inc., 552 U. S. 148, 164 (2008); Alexander v. Sandoval, 532 U. S. 275, 286 (2001). Congress vested authority to oversee compliance with the 340B Program in HHS and assigned no auxiliary enforcement role to covered entities.
Notwithstanding its inability to assert a statutory right of action, the County maintains that the PPAs implementing the 340B Program are agreements enforceable by covered entities as third-party beneficiaries. A nonparty becomes legally entitled to a benefit promised in a contract, the County recognizes, only if the contracting parties so intend. Brief for Respondent 31 (citing Restatement (Second) of Contracts § 302(l)(b) (1979)). The PPAs “specifically nam[e]” covered entities as the recipients of discounted drugs, the County observes; indeed the very object of the agreements is to ensure that those entities would be “charge[d]... no more than the ceiling price.” Brief for Respondent 33. When the Government uses a contract to secure a benefit, the County urges, the intended recipient acquires a right to the benefit enforceable under federal common law. Id., at 30. But see 9 J. Murray, Corbin on Contracts § 45.6, p. 92 (rev. ed. 2007) (“The distinction between an intention to benefit a third party and an intention that the third party should have the right to enforce that intention is emphasized where the promisee is a governmental entity.”).
The County’s argument overlooks that the PPAs simply incorporate statutory obligations and record the manufacturers’ agreement to abide by them. The form agreements, composed by HHS, contain no negotiable terms. Like the Medicaid Drug Rebate Program agreements, see supra, at 1Í4-115, the 340B Program agreements serve as the means by which drug manufacturers opt into the statutory scheme. A third-party suit to enforce an HHS-drug manufacturer agreement, therefore, is in essence a suit to enforce the statute itself. The absence of a private right to enforce the statutory ceiling-price obligations would be rendered meaningless if 340B entities could overcome that obstacle by suing to enforce the contract’s ceiling-price obligations instead. The statutory and contractual obligations, in short, are one and the same. See Grochowski v. Phoenix Construction, 318 F. 3d 80, 86 (CA2 2003) (when a government contract confirms a statutory obligation, “a third-party private contract action [to enforce that obligation] would be inconsistent with... the legislative scheme... to the same extent as would a cause of action directly under the statute” (internal quotation marks omitted)).
Telling in this regard, the County based its suit on allegations that the manufacturers charged more than the § 340B ceiling price, see, e. g., Third Amended Complaint in No. 3:05-cv-03740 (ND Cal), ¶¶ 1, 65, not that they violated any independent substantive obligation arising only from the PPAs. Repeatedly, the County acknowledged that §340B is the source of the contractual term allegedly breached. See, e. g., id,., ¶ 28 (“[Section] 340B requires pharmaceutical manufacturers to ensure that § 340B Participants pay no more than the 'ceiling price’... for any pharmaceutical product.”); id., ¶36 (“Under both §340B and the PPA, [drug manufacturers] are required to ensure that the § 340B Participants... pay no more for any product than the § 340B ceiling price.”).
The Ninth Circuit determined that “[p]ermitting covered entities to sue as intended beneficiaries of the PPA is... wholly compatible with the Section 340B program’s objectives” to ensure “that drug companies comply with their obligations under the program and provide [the required] discounts.” 588 F. 3d, at 1251. Suits like the County’s, the Court of Appeals reasoned, would spread the enforcement burden instead of placing it “[entirely] on the government.” Ibid, (citing Price v. Pierce, 823 F. 2d 1114, 1121 (CA7 1987)). But spreading the enforcement burden, the United States stressed, both in the Ninth Circuit and in this Court, is hardly what Congress contemplated when it “centralized enforcement in the government.” Brief for United States as Amicus Curiae 32; see Brief for United States as Amicus Curiae in No. 09-15216 (CA9), p. 13 (County’s challenge is at odds with Congress’ unitary administrative and enforcement scheme).
Congress made HHS administrator of both the Medicaid Drug Rebate Program and the 340B Program, the United States observed, Brief for United States as Amicus Curiae 33-34, and “[t]he interdependent nature of the two programs’ requirements means that an adjudication of rights under one program must proceed with an eye towards any implications for the other,” id., at 34. Far from assisting HHS, suits by 340B entities would undermine the agency’s efforts to administer both Medicaid and §340B harmoniously and on a uniform, nationwide basis. Recognizing the County’s right to proceed in court could spawn a multitude of dispersed and uncoordinated lawsuits by 340B entities. With HHS unable to hold the control rein, the risk of conflicting adjudications would be substantial.
As earlier noted, see supra, at 115, the Medicaid Rebate Program’s statute prohibits HHS from disclosing pricing information in a form that could reveal the prices a manufacturer charges for drugs it produces. § 1396r-8(b)(3)(D). This ban on disclosure is a further indication of the incompatibility of private suits with the statute Congress enacted. If Congress meant to leave open the prospect of third-party beneficiary suits by 340B entities, it likely would not have barred the potential suitors from obtaining the very information necessary to determine whether their asserted rights have been violated.
It is true, as the Ninth Circuit observed, that HHS’s Office of the Inspector General (OIG) has published reports finding that “HRSA lacks the oversight mechanisms and authority to ensure that [covered] entities pay at or below the... ceiling price.” 588 F. 3d, at 1242 (quoting OIG, D. Levinson, Deficiencies in the Oversight of the 340B Drug Pricing Program, p. ii (OEI-05-02-00072, Oct. 2005)). See also 588 F. 3d, at 1242-1243 (citing OIG, D. Levinson, Review of 340B Prices 11 (OE1-05-02-00073, July 2006) (estimating that covered entities overpaid $3.9 million in June 2005 alone)). But Congress did not respond to the reports of inadequate HRSA enforcement by inviting 340B entities to launch lawsuits in district courts across the country. Instead, in the PPACA, Congress directed HRSA to create a formal dispute resolution procedure, institute refund and civil penalty systems, and perform audits of manufacturers. 124 Stat. 823-827, 42 U. S. C. § 256b(d). Congress thus opted to strengthen and formalize HRSA’s enforcement authority, to make the new adjudicative framework the proper remedy for covered entities complaining of “overcharges and other violations of the discounted pricing requirements,” id., at 823, 42 U. S. C. § 256b(d)(1)(A), and to render the agency’s resolution of covered entities’ complaints binding, subject to judicial review under the APA, id., at 827, 42 U. S. C. § 256b(d)(3)(C).
* * *
For the reasons stated, the judgment of the U. S. Court of Appeals for the Ninth Circuit is
Reversed.
Justice Kagan took no part in the consideration or decision of this case.
“In 2004, Medicaid... prescription drug spending reached $31 billion,” GAO, J. Dicken, Prescription Drugs: Oversight of Drug Pricing in Federal Programs 4 (GAO-07-481T, 2007) (testimony before the Committee on Oversight and Government Reform, House of Representatives), while in 2003, 340B entities “spent an estimated $3.4 billion on drugs,” id., at 5.
The 340B Program also covers over-the-counter medications for which there are no Medicaid rebates. 42 U. S. C. §256b(a)(2)(B) (2006 ed. and Supp. IV). For such drugs, §340B prescribes a substitute calculation method. § 256b(a)(2)(B)(i).
U. S. Courts of Appeals have divided on the circumstances under which suits may be brought by alleged third-party beneficiaries of Government contracts. Compare 588 F. 3d 1237, 1244 (CA9 2009) (case below) (“Any intended beneficiary has the right to enforce the obligor’s duty of performance....”), with Grochowski v. Phoenix Construction, 318 F 3d 80, 85-86 (CA2 2003) (“there is no presumption in favor of a right to bring suit” as third-party beneficiary of a government contract), and Dewakuku v. Martinez, 271 F. 3d 1031, 1042 (CA Fed. 2001) (rejecting third-party suit).
Whether a contracting agency may authorize third-party suits to enforce a Government contract is not at issue in this case. Cf. Brief for United States as Amicus Curiae 22. We can infer no such authorization where a contract simply incorporates statutorily required terms and otherwise fails to demonstrate any intent to allow beneficiaries to enforce those terms. Permitting such a suit, it is evident, would “allo[w] third parties to circumvent Congress’s decision not to permit private enforcement of the statute.” Id., at 23-24; cf. Brief for United States as Amicus Curiae in No. 09-15216 (CA9), p. 21 (“In drafting and entering into [PPAs], HHS never imagined that a 340B entity could bring a third-party beneficiary lawsuit like [the County]’s.”).
The County notes that in In re Pharmaceutical Industry Average Wholesale Price Litigation, 263 F. Supp. 2d 172 (Mass. 2003), the United States urged that the statute establishing the Medieaid Drug Rebate Program, §1396r-8, does not preempt States from maintaining state-law fraud claims based on fraudulent reporting of “best prices” to HHS. Brief for Respondent 22-23. See Brief for United States as Amicus Curiae in No. l:01-ev-12257 (D Mass.), pp. 6-9 (observing that States make their own payments to manufacturers and have long played a role in identifying and prosecuting Medicaid fraud). We take no position on this issue.
Because the Ninth Circuit focused on the 340B Program in isolation, it failed to recognize that the interests of States under the Medicaid Drug Rebate Program and covered entities under the 340B Program may conflict. For example, “average” prices are used both to set the amount manufacturers must pay in Medicaid rebates and to establish §340B ceiling prices. §1396r-8(c); §256b(a)(l). Typically, the lower the “average” price, the lower a product’s price to a 340B entity. Brief for United States as Amicus Curiae in No. 09-15216, p. 31. But the higher the “average” price, the more a State Medicaid agency typically receives in rebates from the manufacturers. Ibid. HHS can use its expertise to ascertain and balance the competing interests. Id., at 31-32. Courts as first-line decisionmakers are not similarly equipped to deal with the whole picture.
HHS interprets this provision, the United States informs us, as prohibiting the agency
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_applfrom
|
E
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Michael GORDON, Plaintiff-Appellant, v. Herbert M. LUKSCH, Defendant-Appellee. Michael GORDON, Plaintiff-Appellee, v. Herbert M. LUKSCH, Defendant-Appellant.
Nos. 89-2602, 89-2613.
United States Court of Appeals, Fourth Circuit.
Argued Sept. 14, 1989.
Decided Oct. 18, 1989.
As Amended Dec. 28, 1989.
Philip J. Harvey (Shaw, Pittman, Potts & Trowbridge, Washington, D.C., on brief), for plaintiff-appellant.
Neal A. Goldfarb (Warren K. Kaplan, Melrod, Redman & Gartlan, Washington, D.C., on brief), for defendant-appellee.
Before MURNAGHAN, SPROUSE, and CHAPMAN, Circuit Judges.
SPROUSE, Circuit Judge:
Michael Gordon appeals the district court’s order dismissing without prejudice his claim against his business partner Herbert M. Luksch and Luksch Equities, Inc. (hereafter Luksch) for contribution on the repayment of a business loan. Luksch and Gordon cross-appeal the court’s denial of their summary judgment motions. The district court abstained from exercising its jurisdiction on the ground that the claim could and should be heard in an action for dissolution and accounting filed earlier in the superior court of the District of Columbia. We reverse.
I.
Michael Gordon and Herbert M. Luksch had been partners in the District of Columbia in a multi-million dollar business of acquiring real estate properties, developing them and selling them. Gordon and Luksch organized their partnership as a network of partnerships and corporations in which they were stockholders, general partners, and limited partners. They borrowed money to supply working capital and funded their various enterprises with inter-company loans. In 1986, they first opened a $500,000 line of credit with McLachlen Bank, executing a note with GLM Corporation as maker and themselves individually as guarantors. They regularly renewed the promissory note in this manner every six months until September 1987, when McLachlen Bank insisted that Gordon and Luksch be co-makers, jointly and severally liable, although the purpose of the loan remained the same. The renewal note dated January 31, 1988, and executed by Gordon, Luksch, and another person not involved in this suit, is at issue in this case.
Despite the success of their partnership, Luksch withdrew from active participation in 1986, leaving control to Gordon of what was called collectively the “GLM Companies.” On August 11, 1988, Luksch and Luksch Equities, Inc. filed a complaint in superior court in the District of Columbia against Gordon, two other individuals, and several GLM entities for damages, injunction, accounting, dissolution and appointment of a receiver.
In the meantime, the January 31, 1988, renewal note came due, and Gordon paid the entire amount on August 31, 1989. He then filed the present suit in federal district court for the Eastern District of Virginia on October 28, 1988, seeking contribution from Luksch of $166,666.66. The parties filed cross motions for summary judgment, which the district court denied. Luksch alternatively moved that the court stay proceedings pending resolution of the superior court suit. The court denied the summary judgment motions of both parties, but dismissed the action without prejudice, reasoning that it was appropriate to abstain because the issue could be raised in Luksch’s pending suit in superior court. In our view, the district court properly denied both motions for summary judgment, but erred in abstaining.
II.
The Supreme Court has recognized that in some limited situations, a federal court may dismiss a suit “for reasons of wise judicial administration” when there is a “concurrent state proceeding.” Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 818, 96 S.Ct. 1236, 1246, 47 L.Ed.2d 483 (1976). Only in the most extraordinary circumstances, however, may federal courts abstain from exercising jurisdiction in order to avoid piecemeal litigation. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 15, 103 S.Ct. 927, 936, 74 L.Ed.2d 765 (1983); Cox v. Planning Dist. I Community Mental Health & Mental Retardation Servcs. Bd., 669 F.2d 940, 942 (4th Cir.1982). It follows that because of the “virtually unflagging obligation of the federal courts to exercise the jurisdiction given them,” pendency of an action in state court by itself does not bar proceedings in federal court. Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246. The Supreme Court reiterated factors relevant to a decision to abstain in such cases in Cone, 460 U.S. at 15-16, 103 S.Ct. at 937 (quoting Colorado River, 424 U.S. at 818-19, 96 S.Ct. at 1247):
In assessing the appropriateness of dismissal in the event of an exercise of concurrent jurisdiction, a federal court may also consider such factors as the inconvenience of the federal forum; the desirability of avoiding piecemeal litigation; and the order in which jurisdiction was obtained by the concurrent fo-rums_ Only the clearest of justifications will warrant dismissal.
The factors must be balanced, however, and “heavily weighted in favor of the exercise of jurisdiction.” Id. at 16, 103 S.Ct. at 937.
In the present case, it is clear that the balance of factors does not amount to the exceptional circumstances necessary to justify the district court’s dismissal. It is true that the superior court action was filed some time prior to Gordon’s action on the note filed in the federal court. However, we must look not only to the formal filing sequence but also consider “how much progress has been made in the two actions.” Cone, 460 U.S. at 21, 103 S.Ct. at 940. This is particularly true when the state court action has not progressed far, as in this case where discovery has been stayed pending resolution of a dispute between the parties. Cf. American Disposal Servcs., Inc. v. O’Brien, 839 F.2d 84, 88 (2d Cir.1988). The issues in both courts require interpretation of state law, but they are uncomplicated and permit little legal disagreement. Thus they do not weigh in favor of abstention, particularly since both parties may find an adequate remedy in either state or federal court. Although it would have been possible to raise the issue of the $500,000 loan in the District of Columbia proceedings, judicial diseconomy alone does not justify abstention. See Evans Transp. Co. v. Scullin Steel Co., 693 F.2d 715, 717 (7th Cir.1982). The resolution of the dispute at issue in this forum will not disrupt proceedings in the superior court, even assuming Luksch is entitled to an accounting. Finally, since the federal court is in close proximity to the D.C. court, we assign no weight to Luksch's forum non conveniens argument. We affirm the denial of motions for summary judgment, but reverse the decision to abstain.
REVERSED AND REMANDED.
. In addition to Gordon, defendants included William A. Dietch, Sol Klein, and several GLM entities.
. The other well-settled principles of abstention, of course, do not apply here. See Railroad Comm'n v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941) (when questions of state law may dispose of the case); Burford v. Sun Oil Co., 319 U.S. 315, 63 S.Ct. 1098, 87 L.Ed. 1424 (1943) (to avoid unnecessary conflict with state law and administration); County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959), and Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 (1959) (eminent domain-type abstention when state law is unsettled); Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971) (to avoid restraint of state criminal proceedings).
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
sc_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.
FELTON et al. v. CITY OF PENSACOLA.
No. 934.
Decided March 11, 1968.
Stanley Fleishman, Sam Rosenwein and Hugh W. Gibert for petitioners.
Dave Catón for respondent.
Per Curiam.
The petition for a writ of certiorari is granted and the judgment of the District Court of Appeal of Florida, First District, is reversed. Redrup v. New York, 386 U. S. 767.
The Chief Justice would grant the petition and reverse because of the failure of the trial court to adhere to the standard for judging obscenity announced in Roth v. United States, 354 U. S. 476.
Mr. Justice Harlan would affirm the judgment of the state court upon the premises stated in his separate opinion in Roth v. United States, 354 U. S. 476, 496, and his dissenting opinion in Memoirs v. Massachusetts, 383 U. S. 413, 455.
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_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.
KNIGHTS OF THE KU KLUX KLAN REALM OF LOUISIANA, Plaintiff-Appellee Cross-Appellant, v. EAST BATON ROUGE PARISH SCHOOL BOARD, et al., Defendants-Cross-Appellees, U. S. Department of Health & Human Services, Defendant-Appellant Cross-Appellee.
No. 79-1780.
United States Court of Appeals, Fifth Circuit. Unit A
June 25, 1982.
Rehearing En Banc Denied Oct. 20, 1982.
C. Michael Hill, Asst. U. S. Atty., Baton Rouge, La., Joseph B. Scott, Atty., William Kanter, Wendy M. Keats, U. S. Dept, of Justice, Civ. Div., Appellate Staff, Washington, D. C., for defendant-appellant crossappellee.
Anderson, Anderson & Steffes, Lawrence R. Anderson, Jr., Baton Rouge, La., for plaintiff-appellee cross-appellant.
John F. Ward, Jr., Baton Rouge, La., for East Baton Rouge.
Former Fifth Circuit case, Section 9(1) of Public Law 96-452 — October 14, 1980.
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before GOLDBERG, POLITZ and SAM D. JOHNSON, Circuit Judges.
SAM D. JOHNSON, Circuit Judge:
On February 23,1981, this Court reversed the district court and denied the Ku Klux Klan, Realm of Louisiana (KKK) an award of attorneys’ fees against the Department of Health, Education and Welfare (HEW). Knights of K. K. K. v. East Baton Rouge Parish School Board, 643 F.2d 1034 (5th Cir. 1981). The basis of the denial was this Court’s determination that the Civil Rights Attorneys’ Fees Awards Act of 1976 did not allow recovery of attorneys’ fees against the federal government. While the KKK’s appeal was pending before the Supreme Court, the Equal Access to Justice Act (EAJA) went into effect. 5 U.S.C. § 504, 28 U.S.C. § 2412 (West.Supp.1981). Because the EAJA allows attorneys’ fees awards to certain parties prevailing in actions against the federal government, the Supreme Court has now remanded this case, 454 U.S. 1075, 102 S.Ct. 626, 70 L.Ed.2d 609 for reconsideration in light of that Act.
I. Attorneys’ Fees Awards Under the EAJA
Prior to implementation of the EAJA, 28 U.S.C. § 2412 barred an award of attorneys’ fees to the prevailing party in any civil action brought by or against the United States government, unless specifically provided for by statute. The district court in the case sub judice nevertheless awarded the KKK $11,920.41 in attorneys’ fees against HEW without referring to any statutory basis for its award. The KKK had asserted a right to attorneys’ fees after it had prevailed in a 42 U.S.C. § 1983 action against the Baton Rouge Parish School Board (Board) and HEW. This Court reversed the district court on grounds that no statutory authority existed for the award. The KKK contended that the Civil Rights Attorneys’ Fees Awards Act of 1976 (Awards Act), 42 U.S.C. § 1988, provided such statutory authority, but this Court determined that the Awards Act does not possess the “clear or express” language necessary to waive federal sovereign immunity for attorneys’ fees under 28 U.S.C. § 2412.
This Court did not consider the applicability of the EAJA to the instant case because that Act did not become effective until October 1, 1981. The EAJA made significant changes in 28 U.S.C. § 2412. As amended, section 2412 still retains a general provision barring attorneys’ fees and expenses against the federal government, except as otherwise specifically provided by statute. Sections 2412(b) and 2412(d), however, provide two broad statutory exceptions. The most significant change is the statutory exception in section 2412(d), which provides in pertinent part:
[A] court shall award to a prevailing party other than the United States fees and other expenses * * * incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
A party is only eligible for this mandatory fee award if it is a “prevailing” party and meets certain financial eligibility requirements set forth in section 2412(d)(2)(B):
(B) “party” means (i) an individual whose net worth did not exceed $1,000,-000 at the time the civil action was filed, (ii) a sole owner of an unincorporated business, or a partnership, corporation, association, or organization whose net worth did not exceed $5,000,000 at the time the civil action was filed, except that an organization described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c)(3)) exempt from taxation under section 501(a) of the Code and a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)), may be a party regardless of the net worth of such organization or cooperative association, or (iii) a sole owner of an unincorporated business, or a partnership, corporation, association, or organization, having not more than 500 employees at the time the civil action was filed.
Even if a prevailing party is not eligible for a mandatory attorneys’ fee award, section 2412(b) permits a court in its discretion to award attorneys’ fees and other expenses against the federal government to the same extent it may award fees in cases involving other parties. Under this provision, the federal government is now subject to the “bad faith” and “common benefit/common fund” exceptions to the traditional “American Rule” that litigants bear their own costs, including attorneys’ fees. Under the bad faith exception, an award of fees will be allowed against the losing party if it has willfully disobeyed a court order or otherwise acted in bad faith. See F. D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 129-30, 94 S.Ct. 2157, 2165, 40 L.Ed.2d 703 (1974). Under the “common benefit” exception, a court may award fees to a party where the party’s actions have conferred a substantial benefit upon a class of persons. Id. Under the discretionary award provision in section 2412(b), no financial eligibility requirements are imposed upon a prevailing party.
II. Retroactive Application of the EAJA
The KKK was appealing this Court’s denial of attorneys’ fees when the EAJA became effective as law on October 1, 1981. At the outset, the question arises whether such an action on appeal is covered by the EAJA.
The implementation provision provides that the Act shall apply to any civil action that “is pending on, or commenced on or after” October 1, 1981. Section 208, 28 U.S.C. § 2412 (West Supp.1981). Absent any legislative history to the contrary, an action is “pending” so long as a party’s right to appeal has not yet been exhausted or expired. United States. For Heydt v. Citizens State Bank, 668 F.2d 444, 446 (8th Cir. 1982); Photo Data, Inc. v. Sawyer, 533 F.Supp. 348, 350-51 (D.D.C.1982); Berman v. Schweiker, 531 F.Supp. 1149 (N.D.Ill. 1982). See also Perzinski v. Chevron Chemical Co., 503 F.2d 654, 657 (7th Cir. 1974); Williams v. State, 62 Cal.App.3d 960, 133 Cal.Rptr. 539 (1976); In re Estate of Stith, 45 Ill.2d 192, 258 N.E.2d 351, 353 (1970). The fact that a motion for attorneys’ fees is the only matter pending before a court does not mean that court lacks jurisdiction or that the case is not “pending.” Buckton v. NCAA, 436 F.Supp. 1258, 1262-63 (D.Mass. 1977). Because the Klan’s right to appeal had not expired or been exhausted, its action was “pending” on the effective date for the purposes of applying the Act.
III. Eligibility of the KKK
The KKK meets at least two other threshhold requirements of the EAJA. It is a “prevailing party” in civil litigation against an agency of the federal government. Second, the KKK’s demand for injunctive relief under 42 U.S.C. § 1983 is clearly one kind of civil action in which fees may be awarded under section 2412. The mandatory award provision under section 2412(d) excludes tort actions, but the legislative history of the EAJA notes that constitutional torts are not considered a part of this exclusion. H.R.Rep.No. 96-1418, 96th Cong., 2d Sess. 18, reprinted in 1980 U.S. Code Cong. & Ad.News 4953, 4997. See also Matthews v. United States, 526 F.Supp. 993 (M.D.Ga.1981).
To qualify for a mandatory fee award under section 2412(d), the KKK faces two additional hurdles. First, it must demonstrate that it meets the financial eligibility requirement set forth in section 2412(d)(2)(B), which requires that the organization’s net worth did not “exceed $5,000,000 at the time the civil action was filed ... [or that the organization had] not more than 500 employees at the time the civil action was filed.” Assuming the KKK meets the financial eligibility requirement, the burden shifts to the federal government to prove that its “position” was “substantially justified” or “special circumstances” make an award unjust.
Neither the Act nor the legislative history provides a conclusive answer as to whether the “position” for which substantial justification must be shown is the United States’ litigation position or the United States’ posture in its pre-trial actions. See Alspach v. District Director of Internal Revenue, 527 F.Supp. 225, 228 (D.Md.1981). The test of whether or not a government action is substantially justified is essentially one of reasonableness. H.R.Rep.No. 96-1418, 96th Cong., 2d Sess. 10-11, reprinted in 1980 U.S.Code Cong. & Ad.News at 4989. Where the Government can show that its position had a reasonable basis both in law and fact, no award will be made. This standard represents a middle ground between an automatic award of fees and a restrictive position which would have required the prevailing party to show that Government action was “arbitrary, frivolous, and groundless.” 1980 U.S.Code Cong. & Ad.News at 4993. The “special circumstances” exception provides a safety valve for the Government when it is advancing in good faith a credible, though novel, rule of law. Id.
This Court does not have before it adequate facts to determine whether the KKK meets the financial limitation requirement or whether the Government was substantially justified in its position. Furthermore, the basic role of this Court is merely to review a fee award or denial of an award under the EAJA, modifying it only if the failure to make the award, or the calculation of the amount of the award, was an abuse of discretion. 1980 U.S.Code Cong. & Ad.News at 5012-13.
This cause is therefore remanded to the district court to determine if the KKK qualifies under either the mandatory or discretionary provisions of the EAJA. IT IS HEREBY ORDERED that plaintiff submit an application for fees and other expenses to the district court within thirty days of the issuance of this mandate. See 28 U.S.C. § 2412(d)(1)(B).
The reconsideration of this Court’s judgment in light of the EAJA does not affect this Court’s prior determination that this cause should also be remanded to the district court to determine what amount, if any, of attorneys’ fees reasonably may be assessed against the Board. Accordingly, this Court’s remand for that purpose, as set forth in East Baton Rouge Parish, 643 F.2d at 1040-41, is reinstated.
REMANDED.
. The Supreme Court’s order recites as follows:
Nov. 30, 1981. On petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit. The petition for writ of certiorari is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Fifth Circuit for further consideration in light of Equal Access to Justice Act, Pub.L.No. 96-481, Sec. 201-08.
. 28 U.S.C. § 2412, recited in pertinent part: Except as otherwise specifícaüy provided by statute, a judgment for costs, as enumerated in section 1920 of this title but not including fees and expenses of attorneys may be awarded to the prevailing party in any civil action brought by or against the United States or any agency or official of the United States acting in his official capacity, in any court having jurisdiction of such action.
(emphasis added).
. In 1975 the Board first granted and then rescinded permission for the KKK to use a high school gymnasium for a public meeting during nonschool hours. The Board’s denial came after an HEW official advised the Board that HEW would institute legal action to cut off federal funds to the Board if the Board allowed the KKK to use public school facilities. The KKK filed suit on November 21, 1975, and, as summarized by this Court’s previous opinion, eventually prevailed upon the merits:
Following a hearing on April 20, 1976, the district court denied plaintiffs motion for preliminary and permanent injunctive relief, and dismissed the suit. The district court’s order was reversed by this Court in Knights of the Ku Klux Klan, Realm of Louisiana v. East Baton Rouge Parish School Board, 578 F.2d 1122 (5th Cir. 1978).
Following remand by this Court, the district court entered a judgment and injunction order that set general nondiscriminatory guidelines to which the Board must adhere in making its facilities available to the public. The court also permanently enjoined HEW “from interfering or attempting to interfere with [plaintiffs] use of school facilities.” The order also stated that the costs of the proceeding were to be taxed against HEW.
643 F.2d at 1036.
. This Court nevertheless found that the Civil Rights Attorneys’ Fees Awards Act of 1976 authorized fee awards against the Board, and remanded the case to the district court to determine what amount, if any, of attorneys’ fees reasonably may be assessed against the Board. East Baton Rouge Parish, 634 F.2d at 1041.
. The Awards Act provides in relevant part:
In any action or proceeding to enforce a provision of section [1983, 1985, 1986] the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.
. See also United States v. Bodcaw Co., 440 U.S. 202, 99 S.Ct. 1066, 59 L.Ed.2d 257 (1979); Christianburg Garment Co. v. EEOC, 434 U.S. 412, 415, 98 S.Ct. 694, 697, 54 L.Ed.2d 648 (1978); Alyeska Pipe Line Service Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1975).
. Section 2412(b) recites, in pertinent part:
(b) Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys, in addition to the costs which may be awarded pursuant to subsection (a), to the prevailing party in any civil action brought by or against the United States or any agency and any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. The United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award.
. The application of these two exceptions can be quite complex. See Comment, The Equal Access to Justice Act: How to Recover Attorney’s Fees and Litigation Expenses from the United States Government, 13 U.Tol.L.Rev. 149 (1981); Dods and Kennedy, The Equal Access to Justice Act, 50 UMKC L.Rev. 48 (1981); Comment, Theories of Recovering Attorneys’ Fees: Exceptions to the American Rule, 47 UMKC L.Rev. 566 (1979).
. Section 208 recites, in pertinent part:
This title and the amendments made by this title shall take effect of [sic] October 1, 1981, and shall apply to ... any civil action or adversary adjudication described in section 2412 of Title 28, United States Code, which is pending on, or commenced on or after, such date.
. The EAJA applies to certain adversary adjudications before government agencies, as well as civil actions. See 5 U.S.C. § 504 (West Supp.1981). In S & H Riggers & Erectors, Inc. v. OSHRC (S & H Riggers II), 672 F.2d 426 (5th Cir. 1982), this Court declined to view an appeal of an agency adjudication as “pending” for purposes of applying the Act. It distinguished between proceedings at the agency level and proceedings on appeal because the Act referred only to “adversary adjudication” as defined in 5 U.S.C. § 504(b)(1)(C) and not to an appeal from such an adjudication. However, S & H Riggers II explicitly distinguished between an agency adjudication and a civil action:
This is not so for proceedings before a district court versus proceedings on appeal. Our conclusion might differ in a nonagency case.
S & H Riggers II at 428 n.3. See also Donovan v. Dillingham, 668 F.2d 1196, 1199 (11th Cir. 1982).
. Under 5 U.S.C. § 504(b)(1)(B), parties in “adversary adjudications” before government agencies are only excluded from eligibility for mandatory attorneys’ fees awards if they have a net worth exceeding $5,000,000 and have more than 500 employees.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
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sc_partywinning
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
McCRAY v. ILLINOIS.
No. 159.
Argued January 10-11, 1967.
Decided March 20, 1967.
R. Eugene Pincham argued the cause for petitioner. With him on the briefs were Sam Adam, Charles B. Evins and Earl E. Strayhom.
John J. O’Toole, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief were William G. Clark, Attorney General, and Richard A. Michael, Assistant Attorney General.
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Evelle J. Younger filed a brief for the State of California, as amicus curiae.
Mr. Justice Stewart
delivered the opinion the Court.
The petitioner was arrested in Chicago, Illinois, on the morning of January 16, 1964, for possession of narcotics. The Chicago police officers who made the arrest found a package containing heroin on his person and he was indicted for its unlawful possession. Prior to trial he filed a motion to suppress the heroin as evidence against him, claiming that the police had acquired it in an unlawful search and seizure in violation of the Fourth and Fourteenth Amendments. See Mapp v. Ohio, 367 U. S. 643. After a hearing, the court denied the motion, and the petitioner was subsequently convicted upon the evidence of the heroin the arresting officers had found in his possession. The judgment of conviction was affirmed by the Supreme Court of Illinois, and wé granted certiorari to consider the petitioner’s claim that the hearing on his motion to suppress was constitutionally defective.
The petitioner’s arrest occurred near the intersection of 49th Street and Calumet Avenue at about seven in the morning. At the hearing on the motion to suppress, he testified that up until a half hour before he was arrested he had been at “a friend’s house” about a block away, that after leaving the friend’s house he had “walked with a lady from 48th to 48th .and South Park,” and that, as he approached 49th Street and Calumet Avenue, “[t]he Officers stopped me going through the alley.” “The officers,” he said, “did not show me a search warrant for my person or an arrest warrant for my arrest.” He said the officers then searched him and found the narcotics in question. The petitioner did not identify the “friend” or the “lady,” and neither of them appeared as a witness.
The arresting officers then testified. Officer Jackson stated that he and two fellow officers had had a conversation with an informant on the morning of January 16 in their unmarked police car. The officer said that the informant had told them that the petitioner, with, whom Jackson was acquainted, “was selling narcotics and had narcotics on his person and that he could be found-in the vicinity of 47th and Calumet at this particular time.”. Jackson said that he and his fellow officers drove to that vicinity in the police car and that when they spotted the petitioner, the • informant pointed him out and then departed on foot. Jackson stated that the officers observed the petitioner walking with a woman, then separating from her and' meeting briefly with a man, then proceeding alone, and finally, after seeing the police car, “hurriedly walking] between two buildings.” “At this point,” Jackson testified, “my partner and myself got out of the car and informed him we had information he had narcotics on his person, placed him in the police vehicle at this point.” Jackson stated that the officers then searched the petitioner and found the heroin in a cigarette package.
Jackson testified that he had been acquainted with the informant for approximately a year, that during this period the informant had supplied him with information about narcotics activities “fifteen, sixteen times at least,” that the information had proved to be accurate and had resulted in numerous arrests and convictions. On cross-examination, Jackson was even more specific as to the informant’s previous reliability, giving the names of people who had been convicted of narcotics violations as the result of information the informant had supplied. When Jackson was asked for the informant’s name and address, counsel for the State objected, and the objection was sustained by the court.
Officer Arnold gave substantially the same account of the circumstances of the petitioner’s arrest and search, stating that the informant had told the officers that the petitioner “was selling narcotics and had narcotics on his person now in the vicinity of 47th and Calumet.” The informant, Arnold testified, “said he had observed [the petitioner] selling narcotics to various people, meaning various addicts, in the area of 47th and Calumet.” Arnold testified that he had known the informant “roughly two years,” that the informant had given him information concerning narcotics “20 or 25 times,” and that the information had resulted in convictions. Arnold too was asked on cross-examination for the informant’s name and address, and objections to these questions were sustained by the court.
There can be no doubt, , upon the basis of the circumstances related by Officers Jackson and Arnold, that there was probable cause to sustain the arrest and incidental search in this case. Draper v. United States, 368 U. S. 307. Unlike the situation in Beck v. Ohio, 379 U. S. 89, each of the officers in this case described with specificity “what the informer actually said, and why the officer thought the information was credible.” 379 U. S., at 97. The testimony of each of the officers informed the court of the “underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant . . . was ‘credible’ or his information ‘reliable.’ ” Aguilar v. Texas, 378 U. S. 108, 114. See United States v. Ventresca, 380 U. S. 102. Upon the basis of those . circumstances, along with the officers’ personal observations. of the petitioner, the court was fully justified in holding that at the time the officers made the arrest “the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. Brinegar v. United States, 338 U. S. 160, 175-176; Henry v. United States, 361 U. S. 98, 102.” Beck v. Ohio, supra, at 91. It is the petitioner’s claim, however, that even though the officers’ sworn testimony fully supported a finding of probable cause for the arrest and search, the state court nonetheless violated the Constitu- - tion when it sustained objections to the petitioner’s questions as to the identity of the informant. We cannot agree. .
In permitting the officers to withhold the informant’s identity, the court was following well-settled Illinois law. When the issue is not guilt or innocence, but, as here, the question of probable-cause for an arrest or search, the Illinois Supreme Court has held that police officers need not invariably be required to disclose an informant’s identity if the trial judge is convinced, by evidence submitted in open court and subject to cross-examination, that the officers did rely in good faith upon credible information supplied by a reliable informant. This Illinois evidentiary rule is consistent with the law of many other States. In California, the State Legislature in 1965 enacted a statute adopting just such a rule for cases like the one before us:
“[I]n any preliminary hearing, criminal trial, or other criminal proceeding, for violation of any provision of Division 10 (commencing with Section 11000) of the Health and Safety Code, evidence of information communicated to a peace officer by a confidential informant, who is not a material witness to the guilt or innocence of the accused of the offense charged, shall be admissible on the issue of reasonable cause to make an arrest or search without requiring that the name or identity of the informant be disclosed if the judge or magistrate is satisfied, based upon evidence produced in open court, out of the presence of the jury, that such information was received from a reliable informant and in his discretion does not require such disclosure.” California Evid. Code § 1042 (c).
The reasoning of the Supreme Court of New Jersey in judicially adopting the same basic evidentiary rule was instructively expressed by Chief Justice Weintraub in State v. Burnett, 42 N. J. 377, 201 A. 2d 39:
“If a defendant may insist upon disclosure of the informant in order to test the truth of the officer’s statement that there is an informant or as to what the informant related or as to the informant’s reliability, we can be sure that every defendant will demand disclosure. He has nothing to lose and the prize may be the suppression of damaging evidence if the State cannot afford to reveal its source, as is so often the case. And since there is no way to test the good faith of a defendant who presses the demand, we must assume the routine demand would have to be routinely granted. The result would be that the State could use the informant’s information only as a lead and could search only if it could gather adequate evidence of probable cause apart from the informant’s data. Perhaps that approach would sharpen investigatorial techniques, but we doubt that there would be enough talent and time to cope with crime upon that basis. Rather wp accept the premise that the informer is a vital part of society’s defensive arsenal. The basic rule protecting his identity rests upon that belief.
“We must remember also that we are not dealing with the trial of the criminal charge itself. There the need for a truthful verdict outweighs society’s need for the informer privilege. Here, however, the accused seeks to avoid the truth. The very purpose of a motion to suppress is to escape the inculpatory thrust of evidence in hand, not because its probative force is diluted in the least by the mode •of seizure, but rather as a sanction to compel enforcement officers to respect the constitutional security of all of us under the Fourth Amendment. State v. Smith, 37 N. J. 481, 486 (1962). If the motion to suppress is denied, defendant will still be judged upon the untarnished truth.
“The Fourth Amendment is served if a judicial mind passes upon the existence of probable cause. Where the issue is submitted upon an application for a warrant, the magistrate is trusted to evaluate the credibility of the affiant in an ex parte proceeding. As we havé said, the magistrate is concerned, not with whether the informant lied, but with • whether the affiant is truthful in his recitation of what he was told. If the magistrate doubts .the credibility of the affiant, he may require that , the informant be identified or even produced. It seems to us that the same approach is equally sufficient where the search was without a warrant, that is to - say, that it should rest entirely with the judge who hears the motion to suppress to decide whether he needs such disclosure as to the informant in order to decide whether the officer is a believable witness.” 42 N. J., at 385-388, 201 A. 2d, at 43-45.
What Illinois and her sister States have doné is no more than recognize a well-established testimonial privilege, long familiar to the law of evidence. Professor Wigmore, not known as an enthusiastic advocate of testimonial privileges generally, has described that privilege in these words:
“A genuine privilege, on . . . fundamental principle . . . , must be recognized for the identity of persons supplying the government with information concerning the commission of crimes. Communications of this kind ought to receive encouragement. They are discouraged if the informer’s identity is disclosed. Whether an informer is motivated by good citizenship, promise of leniency or prospect of pecuniary reward, he will usually condition his cooperation on an assurance of anonymity — to protect himself and his family from harm, to preclude adverse social reactions and to avoid the risk of defamation or malicious prosecution actions against him. The government also has an interest in nondisclosure of the identity of its informers. Law enforcement officers often depend upon professional informers to furnish them with a flow of information about criminal activities. Revelation of the dual role played by such persons ends their usefulness to the government and discourages others from entering into a like relationship.
“That the government has this privilege is well established, and its soundness cannot be questioned.” (Footnotes omitted.) 8 Wigmore, Evidence § 2374 (McNaughton rev. 1961),
In the federal courts the rules of evidence in criminal trials are governed “by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.” This Court, therefore, has the ultimate task of defining the scope to be accorded to the various common law eviden-tiary privileges in the trial of federal criminal cases. See Hawkins v. United States, 358 U. S. 74. This is a task which is quite different, of course, from the responsibility of constitutional adjudication. In the exercise of this supervisory jurisdiction the Court had occasion 10 years ago, in Roviaro v. United States, 353 U. S. 53, to give thorough consideration to one aspect of the informer’s privilege, the privilege itself having long been recognized in the federal judicial system.
The Ruviaro case involved the informer’s privilege, not at a preliminary hearing to determine probable cause for an arrest or search, but at the trial itself where the issue was the fundamental, one of innocence or guilt. The petitioner there had been brought to trial upon a two-count federal indictment charging sale and transportation of narcotics. According to the prosecution’s evidence, the informer had been. an active participant in the crime. He “had taken a material part in bringing about the possession of certain drugs by the accused, had been present with the accused at the occurrence of the alleged crime, and might be a material witness as to whether the accused knowingly transported the drugs as charged.” 353 U. S., at 55. The trial court nonetheless deniéd a defense motion to compel the prosecution to disclose the informer’s identity.
This Court held that where, in an actual trial of a federal criminal case,
“the disclosure of an informer’s identity ... is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action. ...
“We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” 353 U. S., at 60-61, 62. (Footnotes omitted.)
The Court’s opinion then carefully reviewed the particular circumstances of Roviaro’s trial, pointing out that the informer’s “possible testimony was highly relevant . . . ,” that he “might have disclosed an entrapment . . . ,” “might have thrown doubt upon petitioner’s identity or on the identity of the package . . . ,” “might, have testified to petitioner’s possible lack of knowledge of the contents of the package that he ‘transported’ ...,” and that the “informer was the sole participant, other than the accused, in the transaction charged.” 353 U. S., at 63-64. The Court concluded “that, under these cir-. cumstances, the trial court committed prejudicial error in permitting the Government to withhold the identity of its undercover employee in the face of repeated demands by the accused for his disclosure.” 353 IT. S., at 65.
What Roviaro thus makes clear is that this Court was unwilling to impose any absolute rule requiring disclosure of an informer’s identity even in formulating evidentiary rules for federal criminal trials. Much less has the Court ever approached the formulation of a federal evidentiary rule of- compulsory disclosure where the issue is the preliminary one of probable cause, and guilt or innocence is not at stake. Indeed, we have repeatedly made clear that federal officers need not disclose an informer’s identity in applying for an arrest or search warrant. As was said in United States v. Ventresca, 380 U. S. 102, 108, we have “recognized that ‘an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant/ so long as the magistrate is ‘informed of some of the underlying circumstances’ supporting the affiant’s, conclusions and his belief that any informant involved ‘whose identity need not he disclosed ... was “credible” or his information “reliable.” ’ Aguilar v. Texas, supra, at 114.” (Emphasis added.) See also Jones v. United States, 362 U. S. 257, 271-272; Rugendorf v. United States, 376 U. S. 528, 533. And just this Term we have taken occasion to point out that a rule virtually prohibiting the use of informers would “severely hamper the Government” in enforcement of the narcotics laws. Lewis v. United States, 385 U. S. 206, 210.
In sum, the Court in the exercise of its power to formulate evidentiary rules for federal criminal cases has consistently declined to hold that an informer’s identity need always be disclosed in a federal criminal trial, let alone in a preliminary hearing to determine probable cause for an arrest or search. Yet we are now asked to hold that the Constitution somehow compels Illinois to abolish the informer’s privilege from its law of evidence, and to require disclosure of the informer’s identity in every such - preliminary hearing where it appears that the officers made the arrest or search in reliance upon facts supplied by an informer they had reason to trust. The argument is based upon the Due Process Clause of the Fourteenth Amendment, and upon the Sixth Amendment right of confrontation, applicable to the States through the Fourteenth Amendment. Pointer v. Texas, 380 U. S. 400. We find no support for the petitioner’s position in either of those constitutional provisions.
The arresting officers in this case testified, in open court, fully and in precise detail as to what the informer told them and as to why they had reason to believe his information was trustworthy. Each officer was under oath. Each was subjected to searching cross-examination. The judge was obviously satisfied that each was telling the truth, and for that reason he exercised the discretion conferred upon him by the established law of Illinois to respect the informer’s privilege.
Nothing in the Due Process Clause of the Fourteenth Amendment requires a state court judge in every such hearing- to assume the arresting officers are committing perjury. “To take such a step would be quite beyond the pale of this Court’s proper function in our federal system. It would be a wholly unjustifiable encroachment by this Court upon. the. constitutional power of States to promulgate their own rules of evidence ... in their own state courts . . . .” Spencer v. Texas, 385 U. S. 554, 568-569.
The petitioner does not explain precisely hotf he thinks his Sixth Amendment right to confrontation and cross-examination was violated by Illinois’ recognition of the informer’s privilege in this case. If the claim is that the State violated the Sixth Amendment by not producing the informer to testify against the petitioner, then we need no more than repeat the Court’s answer to that claim a few weeks ago in Cooper v. California:
“Petitioner also -presents the contention here that he was unconstitutionally deprived of the right to confront a witness against him, because the State did not produce the informant to testify against him. This contention we - consider absolutely devoid of merit.”. Ante, p. 68, at 62, n. 2.
On the- other hand, the claim may be that the petitioner was deprived of his Sixth Amendment right to cross-examine the arresting officers themselves, because their refusal to reveal the informer’s identity was upheld. But it would follow from this argument that no witness on cross-examination could ever constitutionally assert a ■ testimonial privilege, including the privilege against compulsory self-incrimination guaranteed by the Constitution itself.. We. have never given the Sixth Amendment such a construction, and we decline to do so now.
Affirmed.
33 Ill. 2d, 210 N. E. 2d 161
384 U.S. 949.
The weather was “real cold,” and the petitioner testified he “had on three coats.” In order to conduct the search, the arresting officers required the petitioner to remove some of his clothing, but even the petitioner’s version of the circumstances of the search did not disclose any conduct remotely akin to that condemned by this Court, in Rochin v. California, 342 U. S. 165.
“Q. What is the name of this informant that gave you this information?
“Mr. Engerman: Objection, Your Honor.
“The Court: State for the record the reasons for your objection.
“Mr. Engerman: Judge, based upon the testimony of the officer so far that they had used this informant for approximately a year, he has worked with this individual, in the interest of the public, I see no reason why the officer should be forced to disclose the name of the informant, to cause harm or jeopardy to an individual who has cooperated with the police. The City of Chicago have a tremendous problem with narcotics. If the police are not able to withhold the name of the informant they will not be able to get informants. They are not willing to risk their lives if their names become known.
“In the, interest of the City and the law enforcement of this community, I feel the officer should not be forced to reveal the name of the informant. And I also cite People vs. Durr.
“The Court: I will sustain that.
“Mr. Adam: Q. Where does this informant live?
“Mr. Engerman: Objection, your Honor, same basis.
“The Court: Sustained.”
People v. Durr, 28 Ill. 2d 308, 192 N. E. 2d 379; People v. Nettles, 34 Ill. 2d 52, 213 N. E. 2d 536; People v. Connie, 34 Ill. 2d 353, 215 N. E. 2d 280; People v. Freeman, 34 Ill. 2d 362, 215 N. E. 2d 206; People v. Miller, 34 Ill. 2d 527, 216 N. E. 2d 793. Cf. People v. Pitts, 26 Ill. 2d 395, 186 N. E. 2d 357; People v. Parren, 24 Ill. 2d 572, 182 N. E. 2d 662.
State v. Cookson, 361 S. W. 2d 683 (Mo. Sup. Ct.); Simmons v. State, 198 Tenn. 587, 281 S. W. 2d 487; People v. Coffey, 12 N. Y. 2d 443, 191 N. E. 2d 263. But see People v. Malinsky, 15 N. Y. 2d 86, 209 N. E. 2d 694. Cf. Stelloh v. Liban, 21 Wis. 2d 119, 124 N. W. 2d 101; Baker v. State, 150 So. 2d 729 (Fla. App.); State v. Boles, 246 N. C. 83, 97 S. E. 2d 476.
In the present case California has filed a helpful amicus brief, advising us that the validity of this provision is now before the Supreme Court of California. Martin v. Superior Court (LA 29078). The statute was enacted to modify that court’s decision in Priestly v. Superior Court, 50 Cal. 2d 812, 330 P. 2d 39. See also Ford v. City of Jackson, 153 Miss. 616, 121 So. 278.
See 8 Wigmore, Evidence §2192 (McNaughton rev. 1961).
Rule 26, Fed. Rules Crim. Proc.
See Scher v. United States, 305 U. S. 251; In re Quarles & Butler, 158 U. S. 532; Vogel v. Gruaz, 110 U. S. 311.
Some federal courts have applied the same rule of nondisclosure in both warrant and nonwarrant cases. Smith v. United States, 123 U. S. App. D. C. 202, 358 F. 2d 833; Jones v. United States, 326 F. 2d 124 (C. A. 9th Cir.), cert. denied, 377 U. S. 956; United States v. One 1957 Ford Ranchero Pickup, 265 F. 2d 21 (C. A. 10th Cir.). Other federal courts, however, have distinguished between these two classes of cases and have required the identification of informants in nonwarrant cases. United States v. Robinson, 325 F. 2d 391 (C. A. 2d Cir.); Cochran v. United States, 291 F. 2d 633 (C, A. 8th Cir.). Cf. Wilson v. United States, 59 F. 2d 390 (C. A. 3d Cir.). See Comment, Informer’s Word as the Basis for Probable Cause in the Federal Courts, 53 Calif. L. Rev. 840 (1965).
In drawing this distinction some of the federal courts have relied upon a dictum in Roviaro v. United States, 353 U. S. 53, 61:
“Most of the federal cases involving this limitation on the scope of the informer’s privilege have arisen where the legality of a search without a warrant is in issue and the communications of an informer are claimed to establish probable cause. In these cases the Government has been required to disclose the identity of the informant unless there was sufficient evidence apart from his confidential communication.”
Since there was no probable cause issue in Roviaro, the quoted statement was clearly not necessary for decision. Indeed, an absolute rule of disclosure for probable cause determinations would conflict with the case-by-case approach upon which the Roviaro decision was based. Moreover, the precedent upon which this dictum was grounded furnishes only dubious support. Scher v. United States, 305 U. S. 251, the only decision of this Court which was cited, affirmed the trial judge’s refusal to order arresting officers to reveal the source of their information'.
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_civproc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited.
BUSCAGLIA, Treasurer of Puerto Rico, v. BOWIE et al.
No. 3905.
Circuit Court of Appeals, First Circuit.
Dec. 17, 1943.
Bernard Chertcoff, Sp. Atty., to Atty. Gen., Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and Samuel H. Levy, Sp. Assts. to Atty. Gen., for appellant.
E. T. Fiddler, of San Juan, Puerto Rico, for appellees.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
MAHONEY, Circuit Judge.
The plaintiffs, citizens and residents of the United States, trustees of an express trust known as Eastern Sugar Associates, brought this action to recover from the Treasurer of Puerto Rico the sum of $21,-680.24 paid under protest as taxes, penalties and interest on molasses produced and stored in Puerto Rico and skipped to the United States pursuant to contracts of sale. Jurisdiction is based on the fact that each of the plaintiffs is a citizen of a state in the United States and none of them is domiciled in Puerto Rico. 52 Stat. 118, 48 U.S.C.A. § 863.
The taxes were levied under the provisions of Act No. 254 of the Legislature of Puerto Rico approved May 15, 1938, and effective on August 13, 1938, and Act No. 267 approved May 15, 1938, and effective upon date of approval, as amended. Judgment was entered for the plaintiffs in the sum of $21,680.24 with interest and the defendant has appealed.
Before the effective date of Act No. 267, the plaintiffs had produced and stored in tanks 3,057,719 gallons of molasses and before the effective date of'Act No. 254 they had produced and stored in tanks 4,152,867 gallons of molasses. Under Acts Nos. 267 and 254 as originally passed no penalties were imposed for failure to pay the tax within the time prescribed. In 1941, the Legislature in amending Act No. 267 passed Act No. 171 imposing penalties, and made it retroactive as to the effective date of Act No. 267. Then in 1942 it passed Act No. 242 retroactively revising Act No. 267 as amended by Act No. 171 and maSing the penalty provisions prospective only.
The question before us is whether Acts Nos. 254 and 267 apply to molasses produced in Puerto Rico before their effective dates but sold after those dates in continental United States, or whether the tax applies only to a sale in Puerto Rico.
The taxpayer conceded during the oral argument before us that the tax under Act No. 254 was properly levied and collected and that he cannot retain that part of the judgment given by the lower court. That Act imposed a tax of one-fifth of a cent “on each gallon of sugar cane molasses produced, used, sold, or consumed in, or imported into Puerto Rico; * * * By this statute the tax is on every sale of molasses over which Puerto Rico may be said to have power or jurisdiction to tax and not merely on molasses sold in Puerto Rico.
Although the trial judge made no express finding, it is clear from taxpayer’s exhibit “F” that the molasses was in Puerto Rico at the time the contracts of sale were entered into and subsequently was shipped to the United States pursuant to those contracts. We think that the district court by its finding that the molasses was “disposed of * * * by sale in continental United States” meant that delivery took place and title passed to the buyer on the continent. Such was the assumption of both parties at the oral argument. The presence of the molasses in Püerto Rico at the time of the contracts of sale and its shipment from there pursuant to the contracts are sufficient bases to give Puerto Rico jurisdiction to tax no matter where the sale took place. West India Oil Co. v. Domenech, 1940, 311 U.S. 20, 61 S.Ct. 90, 85 L.Ed. 16; cf. Wisconsin v. J. C. Penney Co., 1940, 311 U.S. 435, 61 S.Ct. 246, 85 L.Ed. 267, 130 A.L.R. 1229; State Tax Commission of Utah v. Aldrich, 1942, 316 U.S. 174, 62 S.Ct. 1008, 86 L.Ed. 1358, 139 A.L.R. 1436.
We turn now to that part of the judgment which the taxpayer seeks to retain. Section 1 of Act No. 267 is set out in the margin. It imposes “once only” a tax of one-fourth of a cent “on each gallon of molasses brought into, or manufactured, sold, consumed, or otherwise disposed of for consumption in, Puerto Rico; * * Since the molasses was manufactured before the effective date of the Act, no attempt is made to impose the tax on the production. The only claim is that the transaction comes under the word “sold”’ in the Act. The government contends that our construction of this Act must be guided by that of the Supreme Court of Puerto Rico in Mayaguez Sugar Co. v. Carreras, decided January 16, 1942, but that court was faced with an entirely different question and its opinion is of no aid to us here. That case concerned a sale in Puerto Rico of molasses from one Puerto Rican firm to another. It was argued that since it was the buyer’s intention to export the molasses, no tax was due since the sale was not for consumption in Puerto Rico. It was held that the phrase “for consumption in, Puerto Rico” applied only to “otherwise disposed of” and did not apply to “brought into, manufactured, sold, consumed”. We think the interpretation by the Supreme Court of Puerto Rico that the statute does not mean “sold for consumption in Puerto Rico” was indisputably correct. Equally consistent with that opinion the Supreme Court of Puerto Rico-could hold that the words “Puerto Rioo” taken alone did apply to each of the prior verbs.
To reach the construction sought by the government, we would carry the words “Puerto Rico” back to the first verb in the series, as we must because that verb “brought” is followed by the preposition “into”. We would then read the following verbs “manufactured, sold, consumed” without reference to “Puerto Rico” and then finally attach the words “Puerto Rico” again to the final phrase “or otherwise disposed of for consumption in”. Standing alone, we might say that such was a conceivable construction of the Act, although inartificially drafted to say the least.
Support may be found for this in what is called the doctrine of the “last antecedent”, which requires in statutory construction that qualifying words, where no contrary intention appears, be ordinarily applied solely to the words or phrase immediately preceding. But in the first place this would be contrary to the natural or common sense meaning of the statute. As is said in Lewis, Sutherland Statutory Construction, Vol. 2, § 420:
“This principle [last' antecedent] is of no great force: it is only operative when there is nothing in the statute indicating that the relative words or qualifying provision is intended to have a different effect. And very slight indication of legislative purpose or a parity of reason, or the natural and common sense reading of the statute, may overturn it and give it a more comprehensive application.”
In Great Western Ry. v. Swinden, etc., Ry., L.R. 9 App.Cas. 787, 808, it is said that: “as a matter of ordinary construction where several words are followed by a general expression which is as much applicable to the first and other words as to the last, that expression is not limited to the last but applied to all.”
This last rule of statutory construction is followed by the Supreme Court in Porto Rico Ry., Light & Power Co. v. Mor, 253 U.S. 345, 348, 40 S.Ct. 516, 518, 64 L.Ed. 944, where it says: “When several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all.”
The words we are concerned with are “in, Puerto Rico”. We can see no reason why the legislature should require that “otherwise disposed of for consumption” be in Puerto Rico if it did not also mean that “consumed” be in Puerto Rico, and if “consumed” be in 'Puerto Rico then it seems clear that “manufactured” and “sold” also be in Puerto Rico. The purpose of the comma between the “in” and “Puerto Rico” is merely to prevent the reading of a double preposition after the word “brought”. Further on, in a proviso in the same section we find the language that the tax is to be collected when the article is “manufactured or produced in, or brought into, Puerto Rico”. The word “produced” as used here is a synonym for “manufactured”. Since the tax is on the product when produced in Puerto Rico, likewise it is on it when manufactured in Puerto Rico. Thus in the first part of the section we find that the legislature intended the words “in, Puerto Rico” to be read with “manufactured”, making it read “manufactured in Puerto Rico”. It would be straining the language not to apply the phrase “in, Puerto Rico” to each of the other serialized verbs.
It is further brought out that such must have been the meaning of the legislature when by Act No. 171 of 1941 it retroactively amended Act 267 so as to make Section 1 levy a tax of one-fourth of a cent on each gallon of molasses “in any manner produced, used, sold, or consumed in Puerto Rico. * * * ” Here it is clear that the common sense meaning requires that the phrase “in Puerto Rico” be read after each of the verbs “produced, used, sold.” The language of Act No. 242 of 1942 by which the legislature again seeks to modify retroactively Act No. 267 is much the same as the original 267 and must be interpreted the same way so as to impose a tax on the sale of molasses only when the sale is in Puerto Rico.
In 1941 the legislature omitted the phrase “or otherwise disposed of for consumption” from the statute in Act No. 171. Had the meaning of Act No. 267 been as the government contends, the legislature would also have dropped the words “in, Puerto Rico” (the “brought into” being handled in a separate clause in Act 171) but that was not the meaning. It had meant “in, Puerto Rico” to apply to each of the verbs so it did not drop the phrase but left it as it was, merely omitting the words “or otherwise disposed of for consumption” and the taxing provision then read: “or consumed in Puerto Rico.” Thus it is clear that “in, Puerto Rico” was intended to go with “consumed” in Act No. 267, and no construction could then prevent its going with the other verbs in the series, “manufactured” and “sold”.
Unlike the situation before the Supreme Court of Puerto Rico in the Mayaguez Sugar case, supra, the construction favoring the taxpayer in this case will not seriously impair the effect of the statute. If the Supreme Court of Puerto Rico had decided otherwise, the statute would practically have been destroyed as a taxing measure because only molasses “sold for consumption in Puerto Rico” or “manufactured for consumption in Puerto Rico” would be taxed; and, molasses production being an export industry, the great bulk of the revenue sought by the legislature would escape the tax. However, in the case before us this decision does not leave any tax loopholes for future exploitation because as to any molasses produced hereafter there will be a tax on its manufacture, or, if it is manufactured outside, there will be a tax when it is brought in. The only molasses that is not taxed is molasses manufactured before the effective date of the Act and sold thereafter outside of Puerto Rico. Any sale of molasses in Puerto Rico will, of course, be taxed.
Whether or not it be that the Legislature of Puerto Rico thought it could only tax a sale in Puerto Rico, an examination of other statutes indicates that it was its custom only to tax sales in Puerto Rico. See for example the statute set out in West India Oil Co. v. Sancho, 1 Cir., 108 F.2d 144, 146:
“Sec. 62. There shall be levied and collected, once only, on the sale of any article the object of commerce, not taxed under Section 16 of this Act or exempted from taxation as provided in Section 83 of the same, and at the time of sale in Puerto Rico, a tax of two (2) per cent on the price or value of the daily sales of such articles, whether such sales are for cash or on credit, which tax shall be paid at the end of each month by the person making such sale.” (Italics supplied.)
See also the statute in San Juan Trading Co. v. Sancho, 1 Cir., 114 F.2d 969, 970, footnote 1:
“Section 16. There shall be collected and paid, once only, an internal revenue tax on each of the following articles:
“7. Matches : On matches, whether sulphur, safety, friction, or fuses, or by whatever name known, sold, manufactured, transported, transferred, used, or consumed, in, or brought into, Puerto Rico * *
From the setting off of the preposition “in” by commas on both sides in this last statute it is plain that the preposition “in” goes with all of the preceding verbs and it is obvious that the Puerto Rican Legislature so intended.
It is not necessary to consider the question whether Act No. 267 by reason of other sections is in contravention of the Organic Act.
The judgment of the District Court is reversed in part and affirmed in part and the case is remanded to that court for further proceedings not inconsistent with this opinion; the appellees recover costs of appeal.
“Act No. 254.
“Section 1. There is hereby levied, and the Treasurer of Puerto Rico is directed to collect, a tax of one-fifth (1/5) of a cent on each gallon of sugar cane molasses produced, used, sold, or consumed in, or imported into Puerto Rico; * *
“Section 1. — By this Act there shall be levied, collected, and paid as an internal-revenue tax, once only, the sum of one-fourth (1/4) of a cent on each gallon of molasses brought into, or manufactured, sold, consumed, or otherwise disposed of for consumption in, Puerto Rico; and such tax shall be collected by the Treasurer of Puerto Rico through the affixing and canceling of internal-revenue stamps which he may prescribe for the purpose; Provided, further, That the said tax shall have the nature of an internal-revenue tax and shall, therefore, be uniform and general both for the article produced and brought to Puerto Rico and for the article manufactured or produced in this Island; and such tax shall be collected by the Treasurer of Puerto Rico subject to the provisions of the Internal Revenue Act, as soon as such article is manufactured or produced in, or brought into, Puerto Rico, through the affixing and cancelling of internal-revenue stamps on the documents prescribed for the purpose by the Insular Treasurer.
“Section 1. The title and sections 1, 2, 3, 4, and 5 of Act No. 267, approved May 15, 1938, are hereby amended, and the sections which appear from the following text are hereby added, so that said Act No. 267, of May 15, 1938, shall read in its entirety as follows: * * *
“Section 1. — There shall be levied, collected, and paid, as an internal-revenue tax, tho sum of one-fourth (1/4) of a cent on each gallon of cane molasses in any manner produced, used, sold, or consumed in Puerto Rico, or introduced into Puerto Rico for sale, use, or consumption * *
“Section 1. — By this Act there shall be levied, collected, and paid as an internal-revenue tax, once only, the sum of one-fourth (1/4) of a cent on each gallon of cane molasses brought into, or manufactured, sold, transferred, produced, used, or consumed in, Puerto Rico.”
Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer:
|
songer_opinstat
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
Franklin M. MASSEY, Appellant, v. John W. GARDNER, Secretary of Health, Education and Welfare, Appellee.
No. 11131.
United States Court of Appeals Fourth Circuit.
Argued May 30, 1967.
Decided June 1, 1967.
Franklin W. Kern, Charleston, W. Va., for appellant.
Jack H. Weiner, Attorney, Department of Justice (Barefoot Sanders, Asst. Atty. Gen., Kathryn H. Baldwin, Attorney, Department of Justice, and Milton J. Ferguson, U. S. Atty., on brief), for ap-pellee.
Before HAYNSWORTH, Chief Judge, and SOBELOFF and WINTER, Circuit Judges.
PER CURIAM.
The order settling the fee of the lawyer in this social security case is vacated and the cause remanded for further consideration in light of Redden v. Celebrezze, 4 Cir,, 370 F.2d 373, and McKittrick v. Gardner, 4 Cir., 378 F.2d 872 (decided May 30, 1967).
Vacated and remanded.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
songer_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).
Eva MARTIN, Plaintiff-Appellee, Cross-Appellant, v. CITIBANK, N.A., Defendant-Appellant, Cross-Appellee.
Nos. 506, 589, Dockets 84-7676, 84-7700.
United States Court of Appeals, Second Circuit.
Argued Jan. 17, 1985.
Decided May 15, 1985.
Bettina B. Plevan, New York City (Teresa M. Holland, Proskauer Rose Goetz & Mendelsohn, New York City, of counsel), for defendant-appellant, cross-appellee.
Thomas M. Kennedy, New York City (Lewis, Greenwald & Kennedy, P.C., New York City, of counsel), for plaintiff-appellee, cross-appellant.
Before FEINBERG, Chief Judge, and FRIENDLY and MANSFIELD, Circuit Judges.
MANSFIELD, Circuit Judge:
Citibank, N.A. (“Citibank”) appeals a decision of the Southern District of New York, Robert L. Carter, District Judge, refusing to set aside a jury award of $75,-000 in damages to Eva Martin, a black woman who formerly worked as a teller at one of its branches. The jury found discrimination under 42 U.S.C. § 1981 (1982) and intentional infliction of emotional distress under New York law, based on Citibank’s selection of six minority employees, including Martin, for polygraphing during an investigation of missing funds at the bank. Only one white employee was polygraphed. Citibank also appeals a decision by Judge Carter that the bank’s conduct constituted discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to e-17 (1982). The bank maintains that there was insufficient evidence as a matter of law to demonstrate either discrimination in violation of § 1981 or Title VII or to constitute intentional infliction of emotional distress under state law. We agree and reverse.
Martin cross-appeals from Judge Carter’s dismissal of her claims under § 1981 and Title VII of constructive discharge from the branch to which she was transferred after the polygraph incident and denial of her claim for injunctive relief against future Title VII violations. Finding no error in either of these rulings, we affirm them.
At the end of September 1980, Eva Martin began work as a teller at Citibank’s City Hall branch, 250 Broadway, New York City. Martin’s responsibilities as a teller included processing deposits at Citibank’s automated teller machines and express deposit boxes. Her work record was admirable, her relations with co-workers were very good, and at one point she assisted the bank in foiling a robbery.
In March, April, and May of 1981, the bank experienced several unexplained disappearances of items including cash, checks, a money order and a passbook. About half of the missing items had been deposited in the automated teller machines or express deposit boxes. The others disappeared from the work area near the head teller’s station.
Citibank’s Internal Investigations Unit began an inquiry, directed by Geoffrey Obici, an assistant manager in the bank’s investigation and potential loss department and an investigator in its audit department. Branch officials forwarded to Obici four memoranda describing the various disappearances and identifying seven individuals known to have been involved in transactions affecting some of the items that later disappeared. Neither the memoranda nor bank records contained any information as to the race of these seven individuals, five of whom were black, one hispanic and one white. Obici also spoke several times with Assistant Branch Manager Larry Cook, who gave him the names of the operations employees at the bank. Martin’s name was not mentioned in any of the memoranda analyzing the missing items.
During the relevant period the City Hall branch had 26 employees, including Martin, of whom 15 were on its operations staff, which consisted of tellers and others whose duties entailed the handling of funds. Of the 26, eight were black, two hispanic, one Indian, and the remainder white. The 15-member operations staff included seven blacks, one hispanic, one Indian, and six whites. Because the bank lacked complete records regarding the persons who had handled the missing items, Obici’s supervisor instructed him to polygraph the branch, which Obici interpreted as meaning that he should polygraph the operations staff employees, the only employees who handled money transactions for the bank. A manual given to all new employees advised them that polygraphs might be required during bank investigations.
Obici began to set up interviews with employees on the operations staff in early June 1981. By the time he concluded his investigation, seven of the bank’s operations staff employees had been polygraphed, including Martin. Of those seven, five were black, one hispanic and one white. The first person polygraphed, a his-panic, tested inconclusively, but after further discussion was sent back to work. The second person tested was cleared, but the third failed the polygraph and was discharged. Martin, tested immediately after-wards, was cleared and sent back to work when her test revealed nothing suspicious. Three others were subsequently tested, including one white woman. All three cleared.
Despite being exonerated, Martin was upset at having been suspected and questioned Cook repeatedly as to why only blacks had been tested, particularly since he had told her initially that everyone at the branch would be polygraphed. Still discontent after her return from sick leave (due to a burn) she arranged, at her own request, to be transferred to the bank’s 23rd Street Branch. At the 23rd Street Branch, Martin complained of harassment by her superiors and co-workers, including: the loud mention by her supervisor in public of the polygraphing; twice being required (contrary to bank policy) to process deposits while serving customers; being given the wrong combination to the night deposit safe on one occasion; once having her deposits blocked from being credited by someone using her supervisor’s computer card; and having her lunch hour repeatedly changed. As a result of these events, she resigned about four weeks later. Bank records reflect that a week before she left she had received a warning regarding complaints from customers and co-workers about her attitude.
After exhausting her administrative remedies Martin sued Citibank, alleging claims of disparate treatment and constructive discharge under Title YII and § 1981 and alleging intentional infliction of emotional distress under New York law. She based both her disparate treatment claims and her intentional infliction of emotional distress claim on the theory that she was polygraphed because of her race.
At the three-day trial held during April 1984 Martin testified about her experiences at both branches. She also stated that Clarence Sexton, a black supervisory teller at the City Hall Branch and one of those polygraphed, had in response to her question as to why he was polygraphed despite his eight years experience there, replied, “once you’re a black, you are all in the same boat.”
Martin’s sole other witness was a statistical expert, Dr. Jeffrey Tanaka, who testified that there was only a .5% chance that a randomly selected group of seven individuals chosen from the 26 employees at the bank would include six or more minorities. In addition, he said that there was a 3.2% chance of randomly selecting from the 15 people on the operations staff a group of seven that included at least six minority persons. This analysis counted blacks and hispanics as minorities. Tanaka stated that statisticians consider a phenomenon statistically significant (that is, unlikely to have happened accidentally) if the probability of it happening by chance is under 5%. On this basis, he found race a significant factor in the bank’s selection for testing.
Citibank presented testimony from Obici that he did not know the race of the employees at the branch, that bank records do not contain race information, and that he did not learn of Eva Martin’s race until she arrived for the interview. He stated that he was the one who selected individuals for polygraphing and that he made his choices from the operations staff, based chiefly on each person’s potential access to the missing funds. He stated that he placed three people with whom he had had prior dealings when he had personally worked in the City Hall Branch (two white, one black) on the bottom of his mental list because he considered them “least likely” to have been involved in the thefts and that he did not recall having been given the names of two operations staff members (one white and one Indian). Similarly, Cook testified that he had given Obici the names of the operations employees and that he himself had no say in determining who would be tested or in discontinuing the investigation. Cook specifically denied having told any investigator the race of the branch employees.
A statistical expert for Citibank testified that the analytic method used by Martin’s expert was inappropriate since the selection of individuals for testing was not a random process. The Citibank statistician also reanalyzed the data examined by plaintiff’s expert, using the same statistical method. He pointed out that if the hispanic teller were not tallied as a minority person, the selection from the operating staff of five blacks and two non-blacks for testing would have happened by chance 10% of the time, which is not statistically significant. Citibank also presented testimony from bank employees denying Martin’s allegations of harassment and relating instances of rudeness and uncooperativeness by Martin after her transfer to the bank’s 23rd Street Branch.
At the close of the evidence Judge Carter granted a defense motion for a directed verdict on the constructive discharge claim but denied that motion as to the other claims. He reserved decision on the Title VII discrimination claim (which was tried to him, not to the jury). The jury returned a verdict for plaintiff under § 1981 and New York law and awarded her $50,000 in compensatory damages plus $25,000 in punitive damages. Judge Carter then decided against Martin on the Title VII claim, stating that she had not demonstrated that defendant’s non-discriminatory explanation for its actions was pretextual.
Citibank then moved under Fed.R.Civ.P. 50(c) for judgment notwithstanding the verdict (JNOV) on the ground that there was insufficient evidence to support the jury’s finding of discrimination. Martin in turn moved to change the judgment on the Title VII claim on the ground that the judge was bound to accept the jury’s finding of intentional discrimination. The judge denied Citibank’s motion for JNOV and reversed his ruling on the Title VII discrimination claim as Martin requested. He did not, however, award additional damages, and he denied Martin's request for injunctive relief. Both sides appeal.
DISCUSSION
Title VII and § 1981
In a disparate treatment case the standard for liability under Title VII, which the parties have agreed is the same as that applicable under § 1981, is outlined in McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Initially, a plaintiff bears the burden of establishing a prima facie case of racial discrimination, which requires, in essence, that she show that she belongs to a racial minority and that she was treated differently than similarly-situated whites. Once plaintiff has established a prima facie case, it then falls to the defendant to provide a non-discriminatory reason for its action, whereupon the burden shifts back to the plaintiff to show that the employer’s articulated reasons are pretextual. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-56, 101 S.Ct. 1089, 1093-95, 67 L.Ed.2d 207 (1981).
In reviewing a case after it has been tried, the focus must be on the central issue in the case — whether there has been intentional discrimination against the plaintiff — rather than on each separate step of the McDonnell analysis, see U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 713-15, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983), and the court must refrain from weighing the evidence or the credibility of witnesses. See Mattivi v. South African Marine Corp., 618 F.2d 163, 167-68 (2d Cir.1980). Rather, viewing the evidence in the light most favorable to the plaintiff and drawing all reasonable inferences in her favor, we may reverse only if we find that no reasonable fact-finder could have reached a verdict for the plaintiff. See C-Suzanne Beauty Salon, Ltd. v. General Insurance Co., 574 F.2d 106, 112 n. 10 (2d Cir.1978); Simblest v. Maynard, 427 F.2d 1, 4 (2d Cir.1970). When a finding of discrimination under Title VII is (as here) explicitly based on the verdict on the § 1981 claim, reversal of judgment for the plaintiff on the latter would require reversal as to the former.
In the present case Martin presented no direct evidence from which discrimination might be inferred. The hearsay testimony about Sexton’s comment has no bearing on the existence of discriminatory selection: Sexton had nothing to do with the selection process and his remark was made after Martin had complained about polygraph selection on the basis of race and had asked Sexton why he had been tested. Cf. Haskell v. Kaman Corp., 743 F.2d 113,121 (2d Cir.1984) (finding error in the admission of comments from other employees about the suspected age motivation behind their terminations). Sexton’s comment is of even less value in view of the fact that there were clear non-discriminatory reasons for the bank’s decision to have him polygraphed: he was named in Cook’s pre-polygraph memoranda as having handled three transactions involving items that later disappeared.
The evidence at trial plainly established that there was good cause for an investigation at the bank and that Martin was one of the employees with access to the areas in which items had disappeared. There was no basis for the jury to find that Obici, the person who made the selections for polygraphing, knew the race of those he selected for polygraphing. He testified that he did not know the race of employees, and there was no evidence that he received such information from Cook — in fact both denied that it was furnished to him. Any inference to the contrary would have been speculation.
Admittedly, as Judge Learned Hand has observed, “the denial of one, who has a motive to deny, may be uttered with such hesitation, discomfort, arrogance or defiance, as to give assurance that he is fabricating, and that, if he is, there is no alternative but to assume the truth of what he denies.” Dyer v. MacDougall, 201 F.2d 265, 269 (2d Cir.1952). However, the Dyer opinion went on to hold that while “in strict theory a party having the affirmative might succeed in convincing a jury of the truth of his allegations in spite of the fact that all the witnesses denied them, we think it plain that a verdict would nevertheless have to be directed against him.” Id.; accord Davis v. National Mortgagee Co., 349 F.2d 175, 178 (2d Cir.1965); 9 C. Wright & A. Miller, Federal Practice & Procedure § 2527, at 563 (1971) (“If all of the witnesses deny that an event essential to plaintiffs ease occurred, he cannot get to the jury simply because the jury might disbelieve these denials. There must be some affirmative evidence that the event occurred.” (footnote omitted)). Cf. Mattivi v. South African Marine Corp., supra, 618 F.2d at 168 (stating that a verdict may be overturned when “there is such a complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture”). We note too that Martin at no time indicated that Citibank ever discriminated against her or against other blacks in any aspect of the employment relationship other than selection for polygraphing.
The only other evidence of discrimination presented by Martin is the statistical analysis, based on the selection of six minority persons and one white for polygraphing. We have previously held that such statistical proof alone cannot ordinarily establish a prima facie case of disparate treatment under Title VII or § 1981. Hudson v. International Business Machines Corp., 620 F.2d 351, 355 (2d Cir.) (finding no error in the ruling that statistics about a company’s record of promoting employees of different races, standing alone, could not establish a prima facie case of disparate treatment), cert. denied, 449 U.S. 1066, 101 S.Ct. 794, 66 L.Ed.2d 611 (1980); accord Grigsby v. North Mississippi Medical Center, Inc., 586 F.2d 457, 459-61 (5th Cir.1978); Murphy v. Middletown Enlarged City School District, 525 F.Supp. 678, 692 .(S.D.N.Y.1981) (applying the Hudson rule). Although plaintiff tries to draw a distinction between “generalized” and “particularized” statistical proof and argues that the latter can be sufficient to prove discrimination, we find no logical basis for attaching any legal significance to these characterizations and no supporting case law for the distinction. As the statistical proof is not sufficient to carry the case to the jury in itself, neither is the statistical evidence in conjunction with the jury’s possible disbelief of Cook and Obici. Any other result would cripple the operation of the Hudson rule.
The value of the statistical proof alone is slight here, since the analysis conducted by Tanaka, Martin’s expert, is weak. That analysis depended on the erroneous assumptions that racial bias was the only factor that might have explained the composition of the group polygraphed and that aside from any race-related prejudice, the selection of employees for polygraphing was made at random. In fact, however, the evidence at trial made clear that selection quite reasonably was not random: Obici testified that he arranged polygraphs for those he believed to have been involved in transactions affecting the missing items, that he had planned to delay polygraphing the individuals believed by him on the basis of his prior association with them to be “least likely” to be involved, and that he did not recall being given the names of two of the 15 employees on the operations staff. Obici ordered polygraphs for five of the seven employees named in Cook’s memoranda as known to be connected with transactions involving the items that were missing from the later part of the relevant period. The only persons named in the memos but not polygraphed were (1) a black woman, who was implicated to a lesser extent than the others and was personally known to Obici, and (2) a black man, who no longer worked at the bank. Furthermore, Assistant Branch Manager Cook and Branch Manager Conlan, both white, were included in the group of 15 operational employees, but would very likely have been among the last to be polygraphed, regardless of their race. As the memoranda certainly provided a bona fide and unrebutted non-pretextual reason for the polygraphing of five of the employees tested— those who were named in the memoranda— Martin’s case rests on the selection of the remaining two tested, Julian Smith and Martin herself, both black. Obici explained that he chose to test Smith because Smith’s station was directly next to the head teller’s station, the location from which various items had disappeared. Martin was tested because “she was one of the tellers that had processed” deposit envelopes.
In the context of an investigation into all of the members of the operations staff, the decision to polygraph Martin is in no way unusual. Nor does it in any way, standing alone, support an inference that she was selected because of her race. The mere fact that the investigation concluded after a scant half of the operations staff had been polygraphed bears no racial implications. Obici testified that after he had seen the results for the seven individuals tested, he and his supervisor decided to bring the investigation to a halt. He stated that the bank tries not to over-use the polygraph because the testing adversely affects morale, and that, having had one person fail the polygraph and five people clear it, he and his supervisor felt that continued polygraphing would not be productive. There was no contrary testimony by any witness.
Martin suggests that we can infer racial animus from the fact that the first five people polygraphed were black or his-panic and from the further fact that the only white person tested was a person whose name appeared four times in the memoranda and who was selected after Martin had complained about the polygraphing of blacks. Given the stipulation at the trial that “Interviews were scheduled according to the availability of Mr. Obici and the employee to be interviewed,” we cannot agree that the ordering of those selected supports an inference of discrimination.
Thus Martin provided no evidence to contradict Obici’s testimony that he did not know the race of employees at the time he selected them for polygraphing, and she presented nothing besides wholly inadequate statistical proof to demonstrate that Citibank’s stated reasons for selecting certain employees for polygraphing were false. Accordingly, we find that no reasonable jury could have concluded by a preponderance of the evidence that Martin was chosen for polygraphing on the basis of her race. We therefore reverse the judgment to the extent that it is based on findings of liability on the Title VII and § 1981 claims.
Intentional Infliction of Emotional Distress
Since Martin’s state law claim of intentional infliction of emotional distress (IIED) was directly based on her allegation that she was polygraphed because of her race, the evidence is also insufficient, for the reasons detailed above, to establish her New York law claim. Even if this were not the case, under New York law the acts alleged by Martin, even if fully established, would not provide legally adequate grounds for a verdict of IIED.
New York, which uses the Restatement (2d) of Torts definition of intentional infliction of emotional distress, requires that the conduct be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” Fischer v. Maloney, 43 N.Y.2d 553, 558, 402 N.Y.S.2d 991, 992-93, 373 N.E.2d 1215, 1217 (1978) (quoting Restatement (2d) Torts § 46(1)). The conduct must also be intentionally directed at the plaintiff and lack any reasonable justification.
New York courts have been very strict in applying these principles. One New York court recently dismissed an IIED claim despite allegations by the plaintiff that he was: transferred and demoted for reporting fraud at his company; told that he could not be fired because of his age but that he would never advance; discharged and ordered to leave immediately; forcibly and publicly escorted from the building by guards when he returned the next day to pick up his belongings; and ordered out of the building two weeks later when he came back, as instructed, to pick up his possessions, which were then dumped in the street. Murphy v. American Home Products Corp., 112 Misc.2d 507, 447 N.Y.S.2d 218, 219-20 (N.Y.Sup.), aff'd, 88 A.D.2d 870, 451 N.Y.S.2d 770 (1st Dept.1982). In affirming this dismissal, the New York Court of Appeals stated that the allegations fell “far short” of the standards for an IIED claim. Murphy v. American Home Products Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 236, 448 N.E.2d 86, 90 (1983). When such conduct does not establish an IIED claim the proof in the present case is a fortiori inadequate. See also Belanoff v. Grayson, 98 A.D.2d 353, 471 N.Y.S.2d 91, 94 (1st Dep’t 1984) (finding insufficient proof of IIED based on allegedly unjustified negative performance ratings and termination claimed to result from sex discrimination).
Thus, despite the unaeceptability of racial discrimination in civilized society, we have seen no indication that New York courts would consider the conduct here “outrageous” per se or would otherwise conclude that it sufficed to prove Citibank’s liability for intentionally inflicting emotional distress.
Since Martin did not present sufficient evidence to prevail on any of her claims, neither compensatory nor punitive damages were properly awarded, and injunctive relief was unnecessary.
Martin’s Cross-Appeal: The Constructive Discharge Claim
A finding of constructive discharge in violation of § 1981 or Title VII requires that the trier of fact “ ‘be satisfied that the * * * working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.’ ” Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir. 1983) (quoting Alicea Rosado v. Garcia Santiago, 562 F.2d 114, 119 (1st Cir.1977)). The employer must have “ ‘deliberately [made] an employee’s working conditions so intolerable’ ” as to force the resignation. Id. (quoting Young v. Southwestern Saving and Loan Ass ’n, 509 F.2d 140, 144 (5th Cir.1975)).
In this case the evidence was insufficient as a matter of law to establish constructive discharge. In considering the sufficiency of evidence, we accept as true plaintiff’s testimony that: her supervisor loudly mentioned her having been polygraphed; complaints concerning her attitude to co-workers were unfounded; her supervisor had once given her the wrong combination to the night deposit box and that someone using his card had once interfered with her deposits; and that she had been required to process deposit records while serving customers. Plaintiff admitted that she had not been formally disciplined but acknowledged that she had received an informal, oral warning concerning complaints about her attitude from several customers and from co-workers.
As Judge Carter correctly concluded in directing a verdict in Citibank’s favor on Martin’s claim of constructive discharge, these incidents do not legally suffice to sustain an inference that a reasonable person would have been “compelled” to resign. Compare Bourque v. Powell Electrical Mfg. Co., 617 F.2d 61 (5th Cir.1980) (resignation due to lower pay resulting from sex discrimination does not constitute constructive discharge); Muller v. United States Steel Corp., 509 F.2d 923, 929 (10th Cir.), cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46 L.Ed.2d 41 (1975) (unfavorable job assignment and discriminatory failure to promote does not constitute constructive discharge), with Goss v. Exxon Office Systems Co., 747 F.2d 885, 888-89 (3d Cir.1984) (holding it sufficient for constructive discharge that, allegedly as the result of sex discrimination, plaintiff was verbally abused and threatened and forcibly transferred to a position with substantially lower salary and inferior working conditions); Meyer v. Brown & Root Construction Co., 661 F.2d 369, 371-72 (5th Cir.1981) (involuntary transfer of pregnant employee to heavy manual labor that posed substantial risks to her health constituted constructive discharge).
Conclusion
We reverse Judge Carter’s decision not to grant a JNOY in favor of Citibank on the claims of § 1981 discrimination and intentional infliction of emotional distress, and reverse his decision amending his ruling on the Title VII discrimination claim. We affirm the directed verdict for defendant on the constructive discharge claim. The case is remanded to the district court with instructions to enter a judgment in accordance with this opinion.
. Although the Branch Manager is strictly speaking not a member of the operations staff, he is included in that category here to conform to the groupings used by the parties’ statistical experts. For the same reason, the count of employees here omits a black teller who was no longer working for the bank when the investigation began.
. The bank’s non-operations employees did not handle cash and were located in an area of the bank that was separate from that used by operations staff employees, to which the non-operations employees had access for only a few minutes a day. The functions of the non-operations employees were principally to open new accounts, handle service problems and take care of customer complaints.
. The parties stipulated that in 1980 two employees at the branch, one white and one black, were discharged after failing polygraph examinations during an investigation of missing funds. An additional white employee was discharged when he confessed to responsibility for losses before taking a polygraph test.
. Another flaw in Tanaka’s statistical analysis is that it is heavily dependent on the classification of individuals as minority or non-minority. In concluding that there was only a 3.2% chance that the composition of the group polygraphed was based on a random selection, Tanaka counted blacks and hispanics as minorities but did not count the Indian employee as a minority. As Citibank’s expert testified, if the division were made between blacks and non-blacks, i.e., by allocating the sole hispanic to the non-minority group, the analysis would show a 10% probability that five or more blacks would be selected by chance. Since both experts agreed that only probabilities below a 5% level reflect statistically significant results, the 10% figure would not be statistically significant.
Conversely, if the Indian employee were counted with the blacks and hispanics as a minority person, then using the same statistical method employed by plaintiffs expert, there would be more than an 8% chance that six or more minority persons would be included in a random sample of seven employees. See P. Pfeiffer & D. Schum, Introduction to Applied Probability 21, 34 (1973) ("Pfeiffer”).
. If Tanaka’s analysis is modified simply to omit any consideration of Cook and Conlan, the probability of randomly choosing at least six minorities for polygraphing becomes 8.6%, which reveals no statistically significant racial effect. Eliminating just one of those two men from the pool of oeprations staff being considered for polygraphing produces a 5.1% chance of having six or more minority employees in a group of seven randomly chosen for testing, which just misses the 5% threshhold for statistical significance. See Pfeiffer, fn. 4, supra.
. When the statistical analysis by Martin’s expert is adjusted to exclude the five polygraphed individuals who were named in the memoranda —i.e., for whom there is an unrebutted non-pretextual reason for polygraphing — no statistically significant effect based on race remains evident. Excluding these five leaves ten individuals on the operations staff (four black, five white and one Indian). Of these, two, both black, were polygraphed. If pairs of people were selected randomly from a pool of four blacks and six non-blacks, the selection of two blacks would occur by chance over 13% of the time. See Pfeiffer fn. 4, supra.
Martin suggests that the statistics concerning the probability of selecting the polygraphed individuals from the entire branch staff were more probative of discrimination than the statistics concerning selection from the operations staff. The analysis performed by her expert, however, erroneously assumed that aside from any racial effect he was able to identify, each employee had an equal chance of being selected for testing. Since Obici testified that he selected employees to be polygraphed from the operations staff and since every individual tested was a member of the operations staff, it is incorrect to assume that members of the entire branch staff, including operations staff employees, had (apart from their race) an equal chance of being selected for polygraphing. As such, the value of statistics concerning the chances of selecting the polygraphed individuals from the staff of the entire branch is much reduced, if not minimal. See Pfeiffer, fn. 4, supra.
. Martin’s exclusive remedy for IIED would appear to be under the New York workers’ compensation statute. Though there is an exception to the workers' compensation exclusive remedy rule that covers intentional torts by an employer, Martin’s circumstances do not fall within this exception since there is no proof of willfulness on the part of Citibank; mere allegations of respondeat superior are not sufficient. See, e.g., Hart v. Sullivan, 84 A.D.2d 865, 445 N.Y.S.2d 40, 41 (3d Dep’t 1981), aff’d, 55 N.Y.2d 1011, 449 N.Y.S.2d 481, 434 N.E.2d 717 (N.Y. 1982); Thompson v. Maimonides Medical Center, 86 A.D.2d 867, 447 N.Y.S.2d 308, 310 (2d Dep’t 1982). Here, if there was discrimination, there was no evidence that anyone besides Obici, who seems to be a mid-level manager with little independent authority, was responsible.
. In any event, absent proof that Citibank authorized or ratified any discrimination or that Obici’s alleged discriminatory actions were chargeable to it, punitive damages would be inappropriate under federal and New York law. See Morrissey v. National Maritime Union, 544 F.2d 19, 25 (2d Cir.1976); Rogirtsky v. Richardson-Merrell, Inc., 378 F.2d 832, 842 (2d Cir.1967) (New York law).
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_state
|
45
|
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 BEAR RIVER DRAINAGE DISTRICT. In the matter of the general determination of all the rights to the use of water, both surface and underground, within the drainage area of the Bear River and all its tributaries in Utah.
Misc. No. 3.
United States Court of Appeals Tenth Circuit.
June 5, 1959.
Perry W. Morton, Asst. Atty. Gen., A. Pratt Kesler, U. S. Atty., Salt Lake City, Utah, David R. Warner and Alfred H. O. Boudreau, Jr., Attorneys, Department of Justice, Washington, D. C., for applicant.
E. R. Callister, Atty. Gen., for the State of Utah, Robert B. Porter and Richard R. Boyle, Asst. Attys. Gen., for the State of Utah, for opponent.
Before BRATTON, Chief Judge, and LEWIS and BREITENSTEIN, Circuit Judges.
BREITENSTEIN, Circuit Judge.
The United States has applied for the authorization of an interlocutory appeal under 28 U.S.C. § 1292(b).
The State Engineer of Utah instituted proceedings in the district court of Cache County, Utah, to adjudicate rights to the use of all the waters within the Bear River drainage in Utah. Pursuant to 43 U.S.C.A. § 666, a summons was served upon a representative of the Attorney General of the United States. On petition of the United States the case was removed to the United States District Court for the District of Utah. The State Engineer moved to remand and the United States moved to dismiss. Relying upon its opinion in a comparable case, In re Green River Drainage Area, D.C., 147 F.Supp. 127, the district court denied the motion to dismiss and remanded the case and in its order taking such action made the statement required by § 1292(b). The controlling question of law was phrased thus:
“Is suit against the United States authorized under the circumstances of this case by 43 U.S.C. § 666?”
In its former opinion the court held that 43 U.S.C.A. § 666 was a consent to suit in such a case and that the United States did not have the right to remove to federal court because in the then status of the case the United States District Court did not have original jurisdiction. As the court acted in reliance on that opinion it must have reached the same conclusions in the pending case.
An order remanding a case to the state court from which it was removed is not reviewable on appeal or otherwise. While the generality of § 1292(b) might seem sufficient to encompass a remand order, it does not expressly either amend or repeal § 1447 (d). Repeals by implication are not favored. The intention of Congress to repeal, modify or supersede must be clear and manifest. The earlier statute, § 1447(d), applies specially to prohibit appeals from remand orders. The later statute, § 1292 (b), applies generally to “a civil action” in which “an order not otherwise appeal-able under this section” is made. As there is no express repeal or absolute incompatibility, the presumption is that the special statute is intended to remain in force. We are convinced that by the enactment of § 1292(b) Congress did not intend to abandon the long established policy expressed in § 1447(d).
The United States seeks to avoid the effect of § 1447(d) by asserting that its application is confined solely to the ruling of the district court that suit against the United States is authorized by 43 U.S.C.A. § 666. The difficulty is that if the application for interlocutory appeal is granted, a ruling on this issue will avail nothing as the remand order stands effective. The remand, right or wrong, left the district court without jurisdiction over the cause. The procedural difficulty is apparent. A court which held itself to be without jurisdiction attempted to decide contemporaneously a controlling element of the cause.
In brief the situation was this. The United States removed on the ground that the case was properly triable in federal court. The district court was then confronted with two motions, one by the State Engineer to remand and one by the United States to dismiss on the ground of sovereign immunity. While the questions involved in the two motions were necessarily related, the better practice would have been to rule first on the motion to remand and if granted to have sent the motion to dismiss back to the state court. As the remand left the district court without jurisdiction, an appeal to the court of appeals is a futile thing.
A remand order is not subject to review either directly or indirectly. As said in United States v. Rice, supra, 327 U.S. at page 749, 66 S.Ct. at page 838:
“Each loses, by the order, such right as there may be to litigate the case in the federal courts on removal, but both retain such rights as they may have to continue the litigation in the state court or to bring an independent suit in the federal courts.”
In the circumstances there is nothing properly before us for review. The application for interlocutory appeal is denied.
. 147 F.Supp. 134, 149.
. 28 U.S.C. § 1447(d); United States v. Rice, 327 U.S. 742, 66 S.Ct. 835, 90 L.Ed. 982.
. Rosenberg v. United States, 346 U.S. 273, 73 S.Ct. 1152, 97 L.Ed. 1607; United States Alkali Export Association, Inc., v. United States, 325 U.S. 196, 209, 65 S.Ct. 1120, 89 L.Ed. 1554.
. City of Tulsa, Okl. v. Midland Valley R. Co., 10 Cir., 168 L.2d 252, 254, and see United States v. Borden Co., 308 U.S. 188, 198, 60 S.Ct. 182, 84 L.Ed. 181.
. United States v. Burroughs, 289 U.S. 159, 164, 53 S.Ct. 574, 77 L.Ed. 1096; Town of Okemah, Okl. v. United States, 10 Cir., 140 F.2d 963, 965.
. See United States v. Rice, supra, 327 U.S. at pages 748-752, 66 S.Ct. at page 837.
. We do not have the petition for removal before us and hence cannot say what was the statutory basis for the petition of the United States.
. Marchant v. Mead-Morrison Mfg. Co., 2 Cir., 11 F.2d 368, 369.
. Hammond Hotel & Improvement Co. v. Finlayson, 7 Cir., 6 F.2d 446, 447.
. Pacific Live Stock Company v. Lewis, 241 U.S. 440, 447, 36 S.Ct. 637, 60 L.Ed. 1084.
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_casetyp1_7-3-2
|
F
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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 - torts".
Philip J. MULL, Jr., Plaintiff-Appellant, v. MARATHON OIL COMPANY, Defendant-Appellee.
No. 80-3873
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Unit A
Oct. 7, 1981.
Amato & Creely, Terrence J. Lestelle, Gretna, La., for plaintiff-appellant.
Johnson & McAlpine, Ronald A. Johnson, New Orleans, La., for defendant-appellee.
Before BROWN, POLITZ and WILLIAMS, Circuit Judges.
Former Fifth Circuit case, Section 9(1) of Public Law 96-452 — October 14, 1980.
JOHN R. BROWN, Circuit Judge:
In 1978, Appellant Philip J. Mull, Jr. sustained personal injuries while working aboard a fixed oil drilling platform in the Gulf of Mexico which belonged to Appellee Marathon Oil. Mull lost approximately fifty percent of the use of his left index finger as a result of a cut he received.
Mull filed suit in August 1978 in U.S. District Court for the Eastern District of Louisiana. He claimed $100,000 in damages arising from Marathon’s alleged negligence. Jurisdiction was predicated upon 28 U.S.C. § 1331 and the Outer Continental Shelf Lands Act. In November 1978, the Court set the case for trial on April 14, 1980. On April 2, 1980, a year and a half later but less than two weeks before trial, Mull moved for a continuance. This the Court denied. One week later, Mull, whether for their failure to secure the continuance or for some unrelated reason, dismissed his attorneys. On April 11 (time stamped at 12:28 p. m.), the attorneys petitioned the Court for leave to withdraw as Mull’s counsel of record and for a continuance.
Musical Attorneys
At 3:00 that afternoon, however, Mull and these same attorneys attended a previously-scheduled deposition. They participated fully in the questioning and neither they nor Mull gave Marathon’s attorneys any cause to suspect anything amiss. At the end of the session, Marathon’s counsel made a settlement offer of $500. Relying upon the contemporary advice of the attorneys whom he claimed to have fired two days before, Mull accepted the settlement. At 4:45 p. m. the Court,' unaware of these developments, denied the motion to withdraw as counsel.
On the following Monday, April 14, the District Judge, accepting the parties’ assurances that they had reached a settlement, signed a 60-day order of dismissal.
Appellant, after mulling over the settlement for a few weeks, developed second thoughts and wanted to get out of the agreement. He refused to sign the release form. Marathon thereupon moved, on June 11, for summary judgment to enforce the settlement. Mull responded with a motion to set aside the order of dismissal. The Judge on August 6 conducted an evidentiary hearing at which Mull had a full opportunity to present his case. He conceded that he had agreed to the settlement. He testified that he had not wanted to do so, but “was backed in the corner” (R. 26) by pressure from his attorneys and the Court.
The District Judge granted the motion for summary judgment. Mull, armed with new counsel, appeals. We affirm.
Mull sets forth several contentions of error by the District Court, none of which relates to the summary judgment. First, he contends that the Judge erred in not granting the continuance on April 2 and in denying the discharge of counsel on April 11. These claims are without merit. The Judge acted within his sound discretion in refusing to grant a continuance. His failure to grant the motion to discharge counsel finds ready explanation in the somewhat odd course of events surrounding the settlement, not the least of which was Mull’s knowing participation in the deposition with his “discharged” counsel and his acceptance of the settlement worked out and recommended by them. The Court, after all, could hardly approve a settlement agreement negotiated by counsel whom it had discharged.
Next, Mull makes the novel argument that the Court’s rulings constituted duress that should void the settlement. This claim, too, finds nothing to support it. The Judge’s routine comments (see note 2, supra) as to court costs hardly were intended to overbear the Appellant’s will. No evidence in the record indicates sufficient pressure on Mull to support this claim. However much Mull may regret the settlement, the facts remain, as he acknowledged, and as the court expressly found, he agreed to it.
Finally, Mull argues that Marathon did not comply with provisions of Louisiana law requiring that any “transaction or compromise”' putting an end to a lawsuit “must be reduced to writing.” La.Civ.Code, Article 3071. Such a defect might indeed jeopardize the validity of the settlement. Yet the settlement here was memorialized by the Federal District Court’s 60-day order (note 1, supra). In Morrow v. North American Bank and Trust Co., 397 F.Supp. 803 (M.D.La.1975), aff’d, 547 F.2d 309 (5th Cir. 1977), the Court observed that there existed no “sacrosanct form” for a compromise to be effective, 397 F.Supp. at 810, and it held that the announcement in Court of a settlement by the attorney for one of the parties satisfied the requirement. Certainly in this instance, where the parties informed the Court of the settlement and Marathon’s attorney also mailed a letter confirming the settlement and the $500 amount to Mull’s counsel, Louisiana’s writing requirement is fulfilled.
AFFIRMED.
. Local Rule 9.8 of the U.S. District Court for the Eastern District of Louisiana provides an informal means of enforcing extra-judicial settlements. Where the parties have unconditionally agreed to a settlement, the Court may enter a 60-day order of dismissal. If a dispute subsequently arises, the Court may grant summary judgment to enforce the settlement.
. The Court, appellant alleges, suggested that it would assess $2,000-3,000 in court costs against him if he lost. Judge Beer filed a per curiam on February 23, 1981 in which he denied having made any such reference. Rather, the Judge stated, he made the “routine observation” that a jury award in an amount less than the jurisdictional minimum might serve as a basis for the assessment of jury costs which could amount to several hundred dollars. His reference was not to the rejection of the settlement but had to be related to Mull’s inability to allege damages in excess of $10,000 for the purposes of 28 U.S.C. § 1331. See St. Paul Indemnity Co. v. Red Cab, Inc., 303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Johnson v. Yerger, 612 F.2d 953, 960 (5th Cir. 1980); McCord v. Moore-McCormack Lines, Inc., 242 F.Supp. 493 (S.D.N.Y.1965).
Question: What is the specific issue in the case within the general category of "economic activity and regulation - torts"?
A. motor vehicle
B. airplane
C. product liability
D. federal employer liability; injuries to dockworkers and longshoremen
E. other government tort liability
F. workers compensation
G. medical malpractice
H. other personal injury
I. fraud
J. other property damage
K. other torts
Answer:
|
songer_appbus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
EGRY REGISTER CO. v. STANDARD-REGISTER CO.
Circuit Court of Appeals, Sixth Circuit.
January 6, 1928.
No. 4762.
1. Patents <@=>318(4) — Court could not assume-on accounting that all defendant’s sales of infringing article were due to presence-of patented features.
It could not be assumed, on accounting for profits from infringing device, that all defendant’s sales of shipping bill register having plaintiff’s patented improvement were due to presence of patented features, and that all profits-were caused thereby.
2. Patents <@=>318(4) — Where invention infringed pertained to one portion of construction and operation of article sold, apportionment of profits on accounting was necessary.
Where actual invention infringed pertained to only one portion of construction and one feature of operation of shipping bill register sold' by defendant, an apportionment of profits on accounting was necessary for infringement.
3. Patents <@=>318(4) — Patentee cannot by language of claim transform invention of improvement in existing structure into one of complete structure, entitling him to profits, on whole structure.
Patentee cannot by language of his claim-, transform his invention of an improvement in an existing structure into, one of complete structure, as if it were wholly new, so as to entitle him to profits on those parts of it which are-not in any fair sense his invention.
4. Patents <@=>318(4) — Burden was on plaintiff to show apportionment of profits from sale of infringing article.
An apportionment of profits from sale of infringing article being necessary, burden was on plaintiff to make apportionment, or show sufficient excuse for not doing so.
5. Patents <@=>318(4)— Plaintiff suffering injury from infringement, not being entitled to ail profits, and not being able to make apportionment, was entitled to reasonable royalty..
Plaintiff, having suffered injury because of defendant’s infringement of patent for improvements on shipping bill register, and not having been able to make satisfactory proof of damages, not being entitled to all defendant’s profits from sale of register having such improvement, and not being able to make an intelligent apportionment, was entitled to • award of reasonable royalty.
6. Patents @=318(5) — Where patent infringe, ment period was about 18 months, plaintiff was entitled to interest at 6 per cent, on royalty from end of period until decree.
Where whole period during which patent was infringed was about 18 months, it was sufficient to allow, as damages for nonpayment of reasonable royalty, interest at 6 per cent, from end of period until decree.
7. Patents @=259(2) — Making and supplying to infringing machine articles necessary to infringing use, is “contributory infringement”' for profits of which makers must account.
Making and supplying to an infringing machine articles which are necessary to infringing use, and have no other possible use, and would have no sale value, excepting to these infringers for that use, is “contributory infringement,” for profits of which makers must account.
[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Contributory Infringement.]
8. Patents @=318(3) — In fixing reasonable royalty for infringement, question is what partios would have agreed on, if both were reasonably trying to reach an agreement.
In fixing a reasonable royalty for infringement of patent, primary inquiry is what parties would have agreed on, if both were reasonably trying to reach an agreement, and when result is to interfere with patent monopoly, which patentee was in position to and desired to keep by retaining entire market himself, his compensation for parting against his will with that opportunity must take due account of loss to him of anticipated profits on business which licensees will thus get away from him.
9. Patents @=318(3) — Future profits from sale of supplies for patented machine may be considered, in retroactively determining reasonable royalty.
When patentee’s business scheme involves reasonable expectation of making future profits by continuing sale to purchaser of patented machine, of supplies to be furnished by patentee, which future business he will lose by licensing a competitor to make machine, this expectant loss is an element to be considered in retroactively determining reasonable royalty.
10. Patents @=319(3) — Infringement of patent No. 940,481 for shipping bill register improvement held not willful, justifying statutory increase of damages (35 USCA § 70).
Infringement of patent No. 940,481 for improvement in shipping bill register held not willful, in such sense as to justify increase of damages, under Act Feb. 18, 1922, § 8 (35 USO A § 70).
Appeal from,the District Court of the United States for the Southern District of Ohio; Smith Hickenlooper, Judge.
Suit by the Standard Register Company against the Egry Register Company. From a decree for plaintiff, defendant appeals.
Reversed and remanded.
H. A. Toulmin, Jr., of Dayton, Ohio (H. A. Toulmin, of Dayton, Ohio, on the brief), for appellant.
Alfred M. Allen, of Cincinnati, Ohio (Allen & Allen, of Cincinnati, Ohio, E. H. & W. B. Turner, of Dayton, Ohio, and Marston Allen, of Cincinnati, Ohio, on the brief), for appellee.
Before DENISON and MACK, Circuit Judges, and DAWSON, District Judge.
DENISON, Circuit Judge.
In 267 F. 186, this court affirmed the decree which had found the validity of the Sehirmer patent, No. 940,481, belonging to the Standard Company, and the infringement of claims 1 and 2 by the Egry Company. There were thereafter a reference to a master for the usual accounting, and long proceedings before the master. His final report found, among other things, that defendant’s profits by the direct infringement were about $9,000, and that defendant, by selling supplies for the infringing machines which it had put out, was guilty of continuing contributory infringement, its profits from which were about $29,000. There was a final decree for these two amounts and interest, from which decree this appeal is taken.
Appellant contends that the award of defendant’s entire profits upon the original sales of the infringing machine is erroneous, because there should have been an apportionment of profits; and this presents the first question. The defendant’s device, which forms the basis of the award, is called an autographic register. It contemplates that the salesman or the shipping clerk will enter the proper details upon the blanks in a printed form, under which is carbon paper, which makes a duplicate record upon a registering blank form, and that the two will then be detached from the strips of paper of which they have been parts, and will be appropriately used. The device consists of what is substantially a rectangular metal box, perhaps 5 inches high and 15 long and 10 wide. In one end of the box are mounted two transverse shafts, which carry respectively two continuous rolls of the printed strip forms. Opposite the central part of the box is a longitudinal shaft, which carries a continuous strip of carbon paper. These printed strips are so led around idling rollers that the two strips, superposed, and the intervening carbon, pass together over a central portion of the top of the box, which becomes a writing bed or table while the blank is being filled out. The two strips are then passed on under a transversely pivoted guide, the front edge of which becomes a cutting edge, and the rear edge of which swings down and binds the strips firmly, when the used^ forms are turned up against it and tom off.
This general construction was older than the Sehirmer patent. The forward simultaneous feeding of the strips had been accomplished through a pressure roll, manually revolved. For this pressure roll Sehirmer substituted a roller underneath the paper, carrying at each end a spur wheel, the spurs or pins of which passed up through a row of holes through the strips near each edge, and thus when the spur wheels were revolved the strips of paper were pulled along. He also provided a cut-off bar, which alternately released and gripped the strips moving under it. There was nothing generally new, even in this construction, but Sehirmer’s in vention consisted in having his spur pins or teeth distinctly smaller than the holes, whereby they would pass through both these holes in spite of imperfect registration and rest loosely therein, and whereby the jogging motion of the pins in the holes would adjust or take up any little tightness in one strip, or looseness in another, and thereby compel a perfect registration. This arrangement also insured that the blank would be accurately positioned for presentation to the cut-off edge. There were patentable merit and substantial commercial value in Schirmer’s improvement; but, although the precise combination was new, yet it was and continued to be what he called it, an improvement in registers of this class, and consisted in adding to the general structure “accurate means for feeding two or more sheets * * * so that the writing lines of said sheets will at all times be in alignment.” Defendant’s infringing device differed from competing devices on the market, or other devices manufactured by it, only in the peculiar relation of the pin wheels to the perforated strips, in con-, neetion with the gripping and releasing of the cut-off bar.
There is no finding and there is no evidence that the sales made by defendant were particularly due to its incorporation in its device of the patented combination; doubtless, as in every such case, the patented improvement contributed to many of the sales and was the moving cause in some of them; but defendant was also selling analogous noninfringing devices to meet the same general demand. It cannot be assumed that all defendant’s sales were due to the presence of the patented features, and hence that all the profits were caused thereby. That
feature aside, it is plain that, in the ordinary sense, not all of defendant’s profits were due to the use of the patent. If a supporting framework and ornamentation in -a defendant’s device constitute the only features which are not the substance of the patented improvement, they may well be disregarded; but here the actual invention pertained to only one portion of the construction and one feature of the operation, and we are satisfied that an apportionment of profits was necessary. The ease is fairly parallel to the grain seeder ease considered by the Supreme Court in Dowagiac Co. v. Minnesota Co., 235 U. S. 641, 35 S. Ct. 221, 59 L. Ed. 398. In the present case, the single ultimate object is to produce a satisfactory duplicate record; in that case, the substantial object was to plant the grain efficiently. The assembled device in that ease provided for the three operations of preparing the ground, dropping the seed and covering it. The present device provides for storing and assembling the strips, moving and holding them in proper relation to the writing table, and then severing them. The inventive thought has to do with only one of these steps, moving the strips along properly in unison, or possibly with two of them, the travel and the severance. The Supreme Court found that in the grain seeder the evidence was clear that the profits were due in substantial degree to other important features (page 646 [35 S. Ct. 222]) and hence that there must be apportionment; and it is equally clear upon this record. True, the device would not have been operative without some strip-feeding means; no more would the grain seeder work without some covering shoe.
We have several times had occasion to say that the important matter in this connection was the actual invention as compared with the prior art, rather than the terms in which the claim may be formulated. Sehirmer apparently might have had a claim for his pin wheel and paper strip combination in any suitable association, or he might have made it include also the mechanism for severance, as he did, or the means for storing the paper and its preliminary assembling and feeding; he might even have included the supporting framework. He cannot, by the language which his claim happens to take, transform his invention of, an improvement in an existing structure into one of a complete structure, as if it were wholly new, so as to entitle him to profits upon these parts of it which are not in any fair sense his invention.
The course of decisions on this subject may well be noticed. In Brennan v. Dowagiac (C. C. A.) 162 F. 472, this court considered the matter of profits arising from infringement of the Hoyt patent by making the McSherry and similar grain drills. It seems to have been the distinct principles of decision of the opinion that the plaintiff was entitled to recover all the profits which the defendant earned by the sale of an infringing article containing additional and unpatented features, unless the article was a salable entity when the patented features were stripped from it, and (probably) unless also the additional features embodied were themselves the subject of a valid patent belonging to some one else. It was then further held that, with reference to the situation presented by the relation of the Hoyt patent to a complete grain drill, the infringing manufacturer who was not able to show his profits on the patented invention separately from those on the rest of the machine, must pay them all. In the Westinghouse Case, 225 U. S. 604, 32 S. Ct. 691, 56 L. Ed. 1222, 41 L. R. A. (N. S.) 653, principles were announced applicable to an electrical transformer infringing upon" an earlier patent therefor. It would seem that the defendant’s entire device was bodily the plaintiff’s patented device, nothing less and nothing more, excepting that defendant had shifted some of the parts, thereby creating differently located intervening spaces, and claimed that these new spaces were important and functional additions to the patented combination. "What is said in the opinion regarding the duty of the defendant to account for all profits, is said with reference to that situation; and it is not necessarily applicable to a case where the patented combination constitutes only a part of a marketable machine, or to cases where the defendant’s structure includes useful physical additions.
In Dowagiac Co. v. Minn. Co., supra, the Supreme Court had to consider profits resulting from an infringement of the same Hoyt patent involved in our Brennan Case. The infringement was apparently the same as that involved in the McSherry structures — the machines sold by the defendants in the Minnesota Case having been made by the manufacturers, who were the defendants in the Sixth Circuit eases. It is therefore difficult to conceive any substantial reason for any difference as to the necessity or form of apportionment, as between the two groups of cases. The Supreme Court distinctly held that apportionment was necessary and that the burden was upon the plaintiff to make it, or to show it to be impossible. In the Westinghouse Case, this burden upon plaintiff (if it there existed) was held to be discharged by showing that the defendant had so mingled the patented and the unpatented that apportionment was impossible. It might seem that apportionment was equally impossible in the Dowagiae Case; but the Supremo Court said that it did not so appear, and hence the plaintiff had failed. While it is in many eases impossible to apportion profits accurately by any logical moans, it may often happen that there is some satisfactory criterion of added value caused by the patented improvement and leading to the inference of added profits resulting therefrom. The comparison between selling prices of articles, with and without the improvement, may furnish this criterion (see Clark v. Schieble, etc., Co. [C. C. A.] 248 F. 276, 283); expert evidence might sometimes furnish it upon some theory. It may well be some method of this kind which the Supreme Court intends to specify by its reference in thei Dowagiae Case, to the lack of any real oh' stacle to a fair apportionment. However that may be, it seems clear that the Brennan Case, as to the two principles of decision above stated, is necessarily much impaired if not overruled by the Dowagiae Case.
Another consideration, not without importance, bearing perhaps on the propriety or perhaps on the difficulty of apportionment (or both) is this: The granted monopoly infringed upon is restricted by the grant to a combination of two elements: (1) The forward feeding means including the spur pins for the registering holes; and (2) the severing means, including a device alternately rising to release the strips for forwarding and falling to grip them for severing. Before the first hearing in the court below, defendant eliminated from its register all means for the alternate grip and release, and substituted a rigid and stationary cut-off bar. Its modified device did not infringe, but was sold at the same price, and the volume of sales did not drop; on the contrary, the volume increased at least normally from year to year; and the proof is clear that the direct profit was greater on the modified than on the infringing form, because the cost wap less. While contingencies of greater profit, if the first form had been continued, are not foreclosed, yet upon the record it appears that defendant' by infringing, instead of by taking an alternative course then open to it (though not then developed), made losses, not profits, .and this result must, at least, challenge critical study of any theory of profit recovery which makes it possible.'
An apportionment 1 being necessary, the burden is upon the plaintiff to make it, or show a sufficient excuse for not doing so, and obviously, under the facts of this case, a substantially accurate apportionment would be a physical and mathematical impossibility; but there was no effort by plaintiff to utilize expert testimony for this purpose. There are eases, like Herman v. Youngstown, etc., Co. (C. C. A.) 216 F. 604, 608, where the record shows some apparent means of approximate apportionment, which, though arbitrary, is still reasonable; but here there is no basis which has been suggested, save the relative costs of the material and labor in different parts of the structure. If this might ever bear any due relation to such an apportionment of profits as is now involved, we can see no such relation in this case; and we must hold that this record shows no reasonable basis of apportionment.
We do not understand the Westinghouse Case as holding that, in every case where the profits cannot be apportioned, defendant must pay them all. What is there said refers, we think, to a ease where apportionment is impossible because the device or structure sold by defendant is the entire patented thing, nothing more and nothing less. That seems to have been true with the case and converter there claimed. We have pointed out that it is not true with this register. Defendant may well be penalized with the entire profits, when his failure to keep apportionment records which might have been kept is at the base of the confusion; not so, we think, when no possible keeping of records by defendant would have minimized the uncertainty.
The plaintiff having suffered a plain injury,, and not having been able to make satisfactory proof of damages, and not being entitled to all the defendant’s profits, and not being able to make an intelligent apportion-, ment, we find here a clear instance of that class of cases discussed in U. S. v. Frumentum Co. v. Lauhoff (C. C. A.) 216 F. 610, 615, where the award of a reasonable royalty is the only solution of the difficulty. This has been sanctioned by the Supreme Court, and we have several times applied it. Dowagiac v. Minnesota, supra; K. W. Co. v. Temeo, 283 F. 873, 878; Fox v. Underwood, 287 F. 453, 454; Gear Co. v. Studebaker Co., 4 F.(2d) 510; National Tube Co. v. Mark, 10 F.(2d) 430, 432. Much of the doubt formerly existing as to when a case was fit for the application of this measure of damages is removed by the Act of February 18, 1922, § 8, embodied in U. S. Code, tit. 35, § 70; but, if this statute were applicable to this accounting, pending since 1918 (as it is not), it would only confirm the result we have independently reached.
We therefore hold that upon the present record the entire profits should not have been awarded; that the plaintiff had full and sufficient opportunity to show, if it could, an applicable criterion for apportioning the profits; that justice does not require that plaintiff should be given a further opportunity therefor, nor permit that all relief should be denied; and hence that the case should go back for a further hearing, with or without a further reference, to determine plaintiff’s damages upon the basis of a reasonable royalty. We would make every effort to find in the existing record a sufficient basis for the making of such an award by this court, so as to end the litigation, as we did in K. W. Co. v. Temco, supra; but we cannot be satisfied to dp so here. The determinative elements have not been developed.
It is part of the theory of damages upon the basis of reasonable royalty that the amounts would have been paid at customary intervals, and we have, under some circumstances, thought proper to allow interest from the end of each calendar year. In this case the whole infringement period was about 18 months, and it will be sufficient to allow, as damages for nonpayment, interest at 6 per cent, from the end of that period until the decree. See K. W. Co. v. Temco, supra, at page 380; National Co. v. Mark, supra, at page 453.
The question of defendant’s liability for profits made upon the supplies furnished by defendant to the purchasers of its infringing machines, presents substantial difficulties, which we need not- consider. It is settled that making and supplying to an infringing machine articles which are necessary to the infringing use, and which have no other possible use, and would have no sale value excepting to these infringers for that use, is contributory infringement, for the profits of which the makers must account. See Union Co. v. Curry (C. C. A. 6) 279 F. 465, 468; Lyman v. Bassick (C. C. A.) 18 F.[2d], 29, 38. When the articles sold have valuable and innocent use and may be thought of as articles of general merchandise, it is not so clear that the makers must respond as for contributory infringement, merely because they know that the purchasers intend to use the articles in the course of infringing operations; but in this case we need not consider whether the facts present this latter question, nor what the answer would be.
To adopt a reasonable royalty as the measure of damages is to adopt and interpret, as well as may be, the fiction that a license was to be granted at the time of beginning the infringement, and then to determine what the license price should have been. In effect, the court assumes the existence ab initio of, and declares the equitable terms of, a supposititious license, and does this nunc pro tunc; it creates and applies retrospectively a compulsory license. When once this basis of recovery is adopted, the whole structure ■of subsequent contributory infringement falls, because the theory that the users of the devices were infringing the patent has been rejected and the theory of a lawful and non-infringing use flowing from a license has been substituted. Upon this point, we have not had the benefit of argument by counsel, but it seems to us entirely plain.
In fixing a reasonable royalty, the primary inquiry, often complicated by secondary ones, is what the parties would have agreed upon, if both were reasonably trying to reach an agreement. This must be modified by the commercial situation, and when the result is to interfere with a patent monopoly, which the patentee was in position to and desired to keep, by retaining the entire market himself, his compensation for parting against his will with that opportunity must take due account of the loss to him of anticipated profits on the business which the licensees will thus get away from him. It is a step further, and we think a necessary one, to say that, when the patentee’s business scheme involves a reasonable expectation of making future profits by the continuing sale to the purchaser of the patented machine, of supplies to be furnished by the patentee, which future business he will lose by licensing a competitor to make the machine, this expectant loss is an element to be considered in retroactively determining a reasonable royalty; and this is so even though the expectation of such future business was not the result of any system of contract obligations, but was only expectation reasonably based on established business methods and customs. This retroactive determination of the value, 10 years ago, of a thing which then had no market value, is not easy; but it presents no greater difficulties than are met, fairly well, by courts and juries in other fields of litigation. We now know that what happened during a past period was, at its beginning, something which might happen, and not infrequently what is now the past is helpful in forming, now for then, an earlier judgment of what was then the future. Of course, this is not to say that a later developed form, which demonstrated that the entirety of the patented combination was not so relatively desirable as it was then thought to be, can be dated back and used as a standard of comparison affecting the earlier supposed valuation.
We should add, in view of what is to be the further course of the litigation, that we find no basis for any conclusion that the infringement was willful in any such sense as to justify the statutory increase of damages. U. S. C. tit. 35, § 70. Both as to validity and infringement there was doubt sufficient to support the good faith of a belief that defendant was right. The strenuous and persistent defense, which is attacked by plaintiff as overlitigious, has led to the award against defendant of a large sum as costs, and we see neither reason nor opportunity to go further in penalizing the defense. There is no appeal on this point, and the costs in the court below up to this time are not to be disturbed.
The decree is reversed, with costs of this court, and the case is remanded for the entry of a new decree in accordance with this opinion.
Dunn v. Standard, etc., Co., 204 F. 617, 619; Herman v. Youngstown, etc., Co., 216 F. 604, 606, 609.
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_procedur
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
UNITED STATES of America, Plaintiff-Appellee, v. Dewey T. NABORS, Jr., Defendant-Appellant.
No. 82-8398.
United States Court of Appeals, Eleventh Circuit.
June 23, 1983.
Rehearing and Rehearing En Banc Denied Aug. 15, 1983.
Bobby Lee Cook, Summerville, Ga., Charles T. Erion, Macon, Ga., for defendant-appellant.
William P. Adams, Asst. U.S. Atty., Macon, Ga., for plaintiff-appellee.
Before RONEY and HILL, Circuit Judges, and MORGAN, Senior Circuit Judge.
RONEY, Circuit Judge:
Dewey T. Nabors, Jr. was convicted of conspiracy, possession and importation of marijuana and methaqualone. 21 U.S.C.A. §§ 841(a)(1), 846, 952(a), 963; 18 U.S.C.A. § 2. On appeal, he asserts four errors by the district court: (1) admission of laboratory analyses of the contraband which had been destroyed before Nabors had an opportunity to examine it, (2) admission of evidence that Nabors, as a named insured of the airplane involved in the drug smuggling, failed to file an insurance claim on the airplane or otherwise cooperate with the insurance company, even though the aircraft sustained extreme damage in the drug operation, (3) admission of evidence showing Nabors’ involvement in similar illegal activity four years earlier, and (4) denial of Nabors’ motion to compel the government to affirm or deny the monitoring of international phone conversations in which Nabors discussed drug smuggling. We affirm.
A brief account of the factual background to this case is helpful before going into more detail on the facts and arguments specific to each issue. On April 13, 1980 Michael Warner landed an airplane, leased by Nabors, in middle Georgia near the town of Unadilla. Warner, flying alone, chose the particular landing site, a crop-dusting strip, because bad weather prevented him from landing at his intended destination. Warner immediately set the plane on fire, inadvertently causing local law enforcement officers to arrive at the scene. The officers were able to save some of the airplane’s contents, which they suspected to be marijuana and methaqualone. They arrested Warner, who was convicted in state court of drug charges.
Warner was the key government witness at Nabors’ subsequent trial in federal court. He testified that Nabors had hired him to fly to Colombia, pick- up marijuana and methaqualone from Nabors, and bring it back to Georgia. Nabors did not take the stand in his own defense, electing simply to attack Warner’s credibility and other aspects of the government’s case.
1. Destruction of the Evidence
Two months before Nabors’ trial, the Georgia Bureau of Investigation (G.B.I.) destroyed the alleged contraband taken from the burning plane. As a result, federal authorities could not comply with Nabors’ motion to inspect and test the prosecution’s evidence. Nabors argues the government’s actions deprived him of due process, requiring the exclusion at trial of the laboratory analyses of the seized material and the dismissal of at least the substantive counts of the indictment.
Clearly a defendant in a drug prosecution has a due process right to have an expert of his choosing perform an independent analysis on the seized substance. See United States v. Gaultney, 606 F.2d 540, 545 (5th Cir.1979), modified on other grounds, 615 F.2d 642 (5th Cir.1980), rev’d on other grounds sub. nom, Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981); cf. Barnard v. Henderson, 514 F.2d 744, 746 (5th Cir.1975) (criminal defendant has right to examine, through his own expert, critical evidence subject to varying expert opinion). The government has a concomitant responsibility to try in good faith to preserve important material and to locate it once the defendant moves for discovery. Armstrong v. Collier, 536 F.2d 72, 78 (5th Cir.1976); United States v. Bryant, 439 F.2d 642, 651 (D.C.Cir.1971). The government does not dispute its responsibility under the law.
The issue here is whether the mistaken destruction of the material, so that the defendant cannot examine it, requires the exclusion of testimony as to the nature of the material by the government witness who tested it. The first question is whether Nabors is entitled to exclusion under a per se rule since the identification of the material as marijuana and methaqualone was central to the prosecution, at least for the substantive offenses. We think not. Two cases are helpful in this conclusion. The recent Supreme Court decision in United States v. Valenzuela-Bernal, 458 U.S. -, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982), involved the government’s deportation of potential witnesses, thus putting them beyond the subpoena reach of the defendant. The Court, in a thorough discussion of related cases involving the deprivation of evidence to the defendant, held there to be no due process violation unless the defendant made some plausible showing that the evidence would have been material and favorable to his defense. Id. at -, 102 S.Ct. at 3448, 73 L.Ed.2d at 1205-06. The seminal case in our Circuit involved the government’s refusal to allow the defendant to inspect the alleged murder weapon and a 75% destroyed bullet which killed the victim. Government ballistics experts testified that the bullet came from defendant’s gun. The Court reversed the defendant's conviction, reasoning the bullet was “a piece of critical evidence whose nature is subject to varying expert opinions.” Barnard v. Henderson, 514 F.2d at 746.
There is no evidence in this case to suggest that experts would have disagreed as to the identification of the seized material. Nor in the experience of this Court in cases of this kind, unlike bullet cases, have we found varying opinions among experts as to the identification of these two substances.
Rather than a per se rule of exclusion, the test in this Circuit focuses on “the materiality of the evidence, the likelihood of mistaken interpretation of it by government witnesses or the jury, and the reasons for its nonavailability to the defense.” United States v. Herndon, 536 F.2d 1027, 1029 (5th Cir.1976). Other circuits have also looked to the government’s culpability and the prejudice to the defendant. See United States v. Picariello, 568 F.2d 222, 227 (1st Cir.1978); cf. United States v. Loud Hawk, 628 F.2d 1139, 1152-53 (9th Cir.1979) (en banc) (majority opinion on issue by J. Kennedy) (looking to these factors but indicating the issue is generally not one of constitutional dimensions), cert. denied, 445 U.S. 917, 100 S.Ct. 1279, 63 L.Ed.2d 602 (1980), - U.S. -, 103 S.Ct. 755, 74 L.Ed.2d 972 (1983). Without discounting the right of defendants to examine the material they are charged with possessing, we hold that where the material has been destroyed in spite of the government’s good faith attempt to preserve it, testimony as to the nature of the material need not be suppressed absent some showing that the testing of the material by another expert would have been reasonably likely to produce evidence favorable to the defendant.
Nabors admits there is no indication that the government acted with improper motive when it destroyed the alleged contraband. See United States v. Herndon, 536 F.2d at 1029. The destruction appears to have been a mistake, which occurred despite the efforts of federal and local law enforcement officials to have the evidence preserved. Briefly, after Michael Warner’s trial in state court, the local sheriff’s office returned the seized material to the Georgia Bureau of Investigation laboratory with instructions that it should be preserved. Pri- or to Nabors’ indictment, an Assistant United States Attorney spoke by telephone to the G.B.I. agent in charge of the case, requesting that G.B.I. preserve the evidence for use in a federal prosecution. Unfortunately, a communication breakdown resulted in the destruction of the evidence by the director of the G.B.I. laboratory. Thus, while in retrospect the government perhaps should have done more to ensure the preservation of the evidence, it clearly did not act “for the purpose of inflicting a disadvantage upon the defendant[ ],” United States v. Gordon, 580 F.2d 827, 837 (5th Cir.), cert. denied, 439 U.S. 1051, 99 S.Ct. 731, 58 L.Ed.2d 711 (1978), 439 U.S. 1079, 99 S.Ct. 860, 59 L.Ed.2d 49 (1979), or as part of a policy of “systematic non-preservation” of evidence, United States v. Bryant, 439 F.2d at 652. The government agents knew the law and acted accordingly. Thus exclusion is not necessary to sanction or instruct the government for a violation of law, as is the rationale for some exclusionary rules.
There is virtually no likelihood that the absence of the alleged contraband affected the verdict in a manner prejudicial to Nabors. United States v. Gordon, 580 F.2d at 837. The government, through various witnesses, explained the absence of the evidence to the jury. It presented overwhelming evidence showing the substances were indeed marijuana and methaqualone. The G.B.I. laboratory director testified that he tested the substances and found them to be the two drugs in question. The prosecution presented photographs of the seized material. The local law enforcement agent who removed the material from the burning plane testified that he smelled marijuana. The pilot, Michael Warner, testified the cargo he picked up from Nabors in Colombia consisted of marijuana and methaqualone. According to Warner, Nabors had agreed to pay him $50,000 to transport 900 pounds of marijuana. Nabors had a full opportunity to cross-examine these witnesses. It seems clear that the absence of the material did not deprive Nabors of any useful evidence. He presented no evidence suggesting the material was anything other than the contraband charged. In short, the absence of the seized evidence did not deprive Nabors of a fundamentally fair trial. See United States v. Herndon, 536 F.2d at 1030.
2. Admission of Evidence of Prior Silence
The airplane was insured. At trial, the prosecution presented, in its case in chief, evidence that Nabors had failed to respond to a request by the insurance company for a statement as to Nabors’ involvement in the use and damage of the aircraft. Nabors immediately objected to the evidence, asserting that its introduction violated the self incrimination and due process clauses of the fifth amendment to the Constitution. Emphasizing that he did not intend to testify in his own behalf, Nabors reasoned that the evidence improperly enabled the prosecution to comment on his silence and allowed the jury to infer guilt therefrom.
We decide the constitutional issue on the assumption that the evidence was relevant. Nabors objected and appealed purely on fifth amendment grounds. We generally do not review evidentiary rulings except on the grounds asserted in the contemporaneous objection. See United States v. Arteaga-Limones, 529 F.2d 1183, 1198-99 (5th Cir.), cert. denied, 429 U.S. 920, 97 S.Ct. 315, 50 L.Ed.2d 286 (1976); United States v. Fendley, 522 F.2d 181, 185-86 (5th Cir.1975). In any event, questions of relevance fall within the broad discretion of the trial court. United States v. Linetsky, 533 F.2d 192, 204 (5th Cir.1976); United States v. Dobbs, 506 F.2d 445, 447 (5th Cir.1975).
The constitutionality of admitting the evidence is difficult to decide. The leading Supreme Court cases on the prosecution’s use of a defendant’s silence are not directly on point. In Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), the Court, in a post-arrest silence case, held the government cannot, consistent with due process, bring up at trial a defendant’s silence after receiving Miranda warnings, even for impeachment purposes. See also United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975) (same result reached based on Supreme Court’s supervisory power over federal courts). In Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), however, the Court held that the government can use pre-arrest silence to impeach a defendant. See also Lebowitz v. Wainwright, 670 F.2d 974 (11th Cir.1982). The present ease, involving prearrest silence, differs in two critical respects from Doyle and Jenkins and the other cases concerning the use of a defendant’s silence. First, the government introduced evidence of defendant’s silence in its direct case in a trial in which the defendant never testified. In virtually all the major prior silence cases, the prosecution raised the issue on cross examination or rebuttal in an effort to impeach the defendant-witness. The logical theory of admissibility in this context is that the silence amounts to a prior inconsistent statement. Second, the silence here did not occur in response to a governmental inquiry as is usually the fact in cases dealing with the point. A private insurance company asked Nabors to cooperate in its own investigation of the damage to the plane. The insurer sent its inquiry one and one-half years before the indictment of Nabors. No Miranda warnings were given, and none had to be.
Under one view, this latter distinction might be dispositive of the fifth amendment argument in this case. In a concurring opinion in Jenkins, Justice Stevens, joined by retired. Justice Stewart, wrote:
The fact that a citizen has a constitutional right to remain silent when he is questioned has no bearing on the probative significance of his silence before he has any contact with the police .. . When a citizen is under no official compulsion whatever, either to speak or to remain silent, I see no reason why his voluntary decision to do one or the other should raise any issue under the Fifth Amendment. For in determining whether the privilege is applicable, the question is whether petitioner was in a position to have his testimony compelled and then asserted his privilege, not simply whether he was silent. A different view ignores the clear words of the Fifth Amendment.
447 U.S. at 243-44, 100 S.Ct. at 2132 (Stevens, J., concurring) (footnote omitted). According to Justice Stevens, the prosecution can raise prior silence, even if the defendant does not elect to testify, as long as the evidence is relevant and the silence was not in response to governmental inquiry. Id. at 244 n. 7, 100 S.Ct. at 2132 n. 7.
A majority of the Supreme Court has never adopted Justice Stevens’ analysis, however, so that theory cannot control the decision here. Only one lower court has to our knowledge adopted the Stevens approach. United States v. Robinson, 523 F.Supp. 1006, 1010-11 (E.D.N.Y.1981), aff’d, 685 F.2d 427 (2d Cir.1982). Robinson held that the prosecution did not infringe defendant’s fifth amendment privilege by raising, in its case in chief in a counterfeiting trial in which defendant did not testify, defendant’s silence in the face of an implicit accusation by a cashier that he had handed her counterfeit money. Even there, the evidence might be admissible without the Stevens rationale. Robinson involved silence combined with action at the time the crime was committed. When the Robinson cashier handed back the tendered bills and asked for real money, the defendant, without saying anything, handed the cashier genuine money. The Robinson decision differs from the case at bar in that here the silence occurred independent from the commission of the crime.
We premise our decision that no reversible error occurred in this case on four rationales. First, it seems clear that if Nabors had made some statements to the insurance company, the prosecution could have used them, as not having been compelled by the government. See United States v. Moeller, 402 F.Supp. 49, 53-56 (D.Conn.1975). Presumably, if it could have used Nabors’ statements against him, assuming relevancy, it should be able to use his silence against him, assuming relevancy. The principle that runs through the cases involving silence is that the government cannot use a defendant’s assertion of the constitutional privilege against self-incrimination to incriminate him. E.g., Doyle v. Ohio, 426 U.S. at 618, 96 S.Ct. at 2245. Silence without the claim of constitutional privilege does not implicate that principle of fairness. The Supreme Court has held that the fifth amendment privilege “is not self-executing,” at least where, as here, the inquiry does not obviously call for an incriminating answer. Roberts v. United States, 445 U.S. 552, 559, 100 S.Ct. 1358, 1363, 63 L.Ed.2d 622 (1980). See also United States v. Kordel, 397 U.S. 1, 9-10, 90 S.Ct. 763, 768, 25 L.Ed.2d 1 (1970); United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103, 113, 47 S.Ct. 302, 306, 71 L.Ed. 560 (1927). Nabors simply did not respond to the insurance company’s general request for an account of his involvement with the plane. He never asserted the privilege. Because he did not claim it at the time of the silence, he could not claim it at trial.
Second, the evidence here is more than testimonial in nature. Certainly the actions of a defendant which are inconsistent with innocence are admissible without regard to the fifth amendment privilege. Here the point the government was presenting to the jury was Nabors’ failure to make a claim for the insurance proceeds to which he was entitled if he was innocent of criminal involvement with that plane. In closing argument, government counsel, commenting on defense attorney’s suggestions that Nabors did not grant Mike Warner permission to use the plane for criminal activity, said:
If you believe that, don’t you reckon Mr. Nabors would’ve said, “Mike, you took my airplane and committed a crime in it. I don’t want nothing to do with you.” ... And if it was somebody taking his plane without authorization and running off and committing a crime in it and burning it up, don’t you know he’d come up to the insurance company and say, “Look here, I’ve got a loss that’s covered by your insurance, and I demand payment.” He didn’t do that.
Viewed as action, not silence, the evidence does not implicate the fifth amendment privilege against compelled testimony. We need not concern ourselves as to whether there were innocent explanations for this action that rob it of evidentiary value. None were argued.
Third, we are quite aware of the absence of cases which allow the use of silence in the government’s case in chief. Just two and one-half years ago, the Second Circuit commented that it could find “no decision permitting the use of silence, even the silence of a suspect who has been given no Miranda warnings and is entitled to none, as part of the Government’s direct case.” United States v. Caro, 637 F.2d 869, 876 (2d Cir.1981) (suggesting the district court’s admission of evidence of silence in that case might have been error, but holding the error harmless). See also United States v. Lewis, 651 F.2d 1163, 1165-69 (6th Cir.1981) (reversing conviction where government agent testified on direct to defendant’s silence following Miranda warnings). The government cites only one case in which a court allowed the prosecution to comment on a defendant’s silence in its case in chief. United States v. Robinson, 523 F.Supp. at 1011, the case of silence combined with action at the time of the crime’s commission.
Even with the lack of authority for admissibility, however, we cannot figure out why the case should be reversed because of the admission of this evidence. Relevant evidence is, as a general proposition, admissible unless there is some reason for its exclusion. Fed.R.Evid. 402. That the evidence might have called attention to defendant’s failure to testify, the general thesis of the argument on appeal, is not persuasive. Much incriminating evidence presented by the prosecution in criminal cases cries out for an explanation by the defendant and points up his failure to testify. The two cases relied upon by defendant, Helton v. United States, 221 F.2d 338, 341-42 (5th Cir.1955), and United States v. Sprengel, 103 F.2d 876, 882-83 (3rd Cir.1939), are readily distinguishable. In Helton the questions were asked by a police officer; in Sprengel by a government postal inspector. Nabors has given us no persuasive justification for reversing the trial court on this point.
Fourth, the prosecution presented substantial evidence of defendant’s guilt, even without the evidence of Nabors’ silence in response to the insurance inquiry. Michael Warner testified in detail about Nabors’ hiring him to transport the marijuana from Colombia. He also testified to prior similar drug smuggling operations headed by Nabors. The government presented some corroborating testimony, especially about the prior similar acts, including a recording of a telephone conversation between Nabors and Warner in which they discussed a landing site. Nabors presented virtually no rebuttal evidence. In light of the other evidence of guilt, admission of the evidence amounted to harmless error, if error at all. See United States v. Resnick, 483 F.2d 354, 356-58 (5th Cir.), cert. denied, 414 U.S. 1008, 94 S.Ct. 370, 38 L.Ed.2d 246 (1973).
3. Admission of Evidence of Similar, Prior Acts
Over Nabors’ objection, the district court admitted evidence that, four years before the drug smuggling operation charged, Nabors had been engaged with Warner in a series of virtually identical operations. The government’s theory of admissibility, which the district court evidently accepted, was that the evidence went to defendant’s intent to commit the crimes charged.
Under Fed.R.Evid. 404(b), evidence of other crimes is admissible to establish, among other things, intent but is inadmissible to show the defendant’s character. To be admissible, the evidence must satisfy a two-part test:
First, it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant’s character. Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice ....
United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978) (en banc) (footnote omitted), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979).
Nabors acknowledges the evidence went to an issue other than character. The extrinsic offenses, involving related drug smuggling operations, require the same intent as the charged offenses, and, based on Warner’s detailed testimony and the corroborating evidence, the jury could find that Nabors committed the extrinsic offenses. United States v. Beechum, 582 F.2d at 913.
The question is whether the danger of unfair prejudice substantially outweighed the evidence’s probative value. The answer to this question is generally for the trial judge. “[T]he decision to admit extrinsic [crime] evidence can be disturbed only for an abuse of discretion.” United States v. Benton, 637 F.2d 1052, 1056 (5th Cir.1981).
The evidence had substantial probative value. Nabors’ assertion to the contrary, his criminal intent appears to have been very much in issue. Through cross-examination of government witnesses, Nabors suggested that he had not operated the airplane in a furtive manner indicative of criminal conduct. The defense brought out, for example, that the insurance policy on the plane provided detailed information about Nabors and that Nabors readily identified himself to airport employees. In his closing argument, defense counsel directly raised the question of criminal intent: “A friend [Nabors] lets him [Warner] fly, there’s nothing wrong with that.” Nabors evidently hoped the jury might conclude he had nothing to do with the illegal drug smuggling operation. In any event, the former Fifth Circuit has held that in a conspiracy case in which the defendant pleads not guilty, extrinsic offense evidence is admissible in the government’s case in chief unless the defendant has affirmatively removed the issue of intent. United States v. Roberts, 619 F.2d 379, 383 (5th Cir.1980).
The evidence cannot be attacked as unnecessary or cumulative. Nabors aggressively challenged Warner’s credibility, emphasizing that the government’s key witness was an admitted perjurer and convicted felon. In addition to Warner’s testimony about the prior offense, the government introduced a tape recording of a telephone conversation between Nabors and Warner just prior to some of the alleged prior offenses in which the two men discussed a landing site for an upcoming flight by Warner. Thus the evidence of the extrinsic drug smuggling operations, which also' entailed an airplane flown by Warner, bolstered the potentially shaky primary evidence of intent.
Balanced against its probative value, the extrinsic offense evidence does not seem to have been unduly or unfairly prejudicial. The judge properly instructed the jury both at the time the government introduced the evidence and prior to sending the jury out that it could not consider the extrinsic crime evidence as proof that Nabors committed the charged offenses. He stated the evidence should be considered only in regard to intent. The limiting instruction minimized the potential for unfair prejudice. United States v. Black, 595 F.2d 1116, 1117-18 (5th Cir.1979).
4. Denial of Motion to Compel Government to Affirm or Deny Existence of Wiretap Interceptions
Pursuant to 18 U.S.C.A. § 3504, Nabors moved just prior to trial to require the prosecution to disclose the use of any electronic surveillance or monitoring in the criminal investigation. The district court denied the motion, terming it both insufficient and untimely.
The controlling statute, 18 U.S.C.A. § 3504, provides in effect that when a defendant claims evidence is inadmissible as illegally obtained by use of an electronic device, the government must affirm or deny the use of the electronic device.
(a) In any trial ... before any court ... of the United States—
(1) upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act;
******
(b) As used in this section “unlawful act” means any act [involving] the use of any electronic, mechanical, or other device ... in violation of the Constitution or laws of the United States or any regulation or standard promulgated pursuant thereto.
The claim to trigger this section must be more than an allegation that unlawful surveillance may have occurred. While a mere assertion of illegal wiretapping unsupported by evidence may suffice, it must be a positive statement that unlawful surveillance did in fact take place. In re Baker, 680 F.2d 721, 722 (11th Cir.1982); United States v. Rubin, 559 F.2d 975, 989 (5th Cir.1977), judgment vacated and remanded on other grounds, 439 U.S. 810, 99 S.Ct. 67, 58 L.Ed.2d 102 (1978), rev’d in part on other grounds on remand, 591 F.2d 278 (5th Cir.), cert. denied, 444 U.S. 864, 100 S.Ct. 133, 62 L.Ed.2d 87 (1979); United States v. Tucker, 526 F.2d 279, 282 (5th Cir.), cert. denied, 425 U.S. 958, 96 S.Ct. 1738, 48 L.Ed.2d 203 (1976).
Nabors submitted two affidavits in support of his motion. One, by his attorney, stated essentially that government documents revealed a policy of the National Security Agency (NSA) to monitor international telephone conversations. The other, signed by Nabors himself, stated that Nabors had been a party to international telephone calls concerning the subject of the indictment. It continued:
[BJased on NSA’s policy of surveillance, I am informed and believe, and thereon allege, that some or all of my aforementioned telephone conversations with persons located in Central and South America, were, in all likelihood, intercepted by the United States of America (emphasis added).
Without considering the timeliness of Nabors’ motion, we agree with the district court that it is legally insufficient. First, Nabors’ affidavit is devoid of an unequivocal statement that his calls were actually monitored. See, e.g., United States v. Rubin, 559 F.2d at 989 (statement by defendant that he has “reason to believe” his conversations were monitored is insufficient). Second, Nabors did not allege, as the statute suggests, a causal link between the monitoring and prosecution. Rather, he asked the court to “make inquiry [to] deter-min[e]” whether any evidence was the fruit of illegal surveillance.
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_r_state
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
ALASKA CONSOL. CANNERIES, Inc., et al. v. TERRITORY OF ALASKA.
Circuit Court of Appeals, Ninth Circuit.
December 3, 1928.
No. 5431.
J. A. Hellenthal and S. Hellenthal, both of Juneau, Alaska, for plaintiffs in error.
John Rustgard, Atty. Gen., for the Territory of Alaska.
Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.
DIETRICH, Circuit Judge.
In February and March, 1923, the appellant companies took out several licenses to operate fish traps in Alaskan waters and paid as fees at the rate of $200 per trap, as was then required by the laws of the territory. On May 5, 1923, the Legislature passed an amendatory act (Laws Alaska 1923, e. 101) by which there was added to the $200 fee at the rate of $2 per 1,000 for all fish caught in any one trap in excess of 100,000, and by virtue of an emergency clause the act became immediately effective. Up to that time the appellants had caught no fish, but during the remainder of the calendar year they took in excess of 100,000 in each trap. They declined to make any further license payment, and this suit was brought to recover from them an amount arrived at by computing the excess catch at the rate of $2 per 1,000 as provided in the amendatory act. To an answer setting up certain legal defenses, a demurrer was sustained, and, the appellants declining to plead further, judgment was entered against them, from which they prosecute this appeal.
They first contend that the exaction is void, because it is essentially a property tax, and is not according to value, as required by the Organic Act of the territory. But we think it is an excise and not a property tax; we so held in Alaska Pacific Fisheries v. Territory of Alaska (C. C. A.) 236 F. 52. The slight differences between the law as it then stood and as now amended are inconsequential. See, also, Pacific American Fisheries v. Territory of Alaska (C. C. A.) 2 F.(2d) 9; Id., 269 U. S. 269, 46 S. Ct. 110, 70 L. Ed. 270, and Alaska Consolidated Canneries v. Territory of Alaska (C. C. A.) 16 F.(2d) 256.
It is also contended ' that by the amendatory act the Legislature did not intend that its provisions should apply where, prior to its passage, licenses had issued, and further that, if such was the intent, it cannot be given effect, for a license so issued constitutes a contract which the Legislature is without power to impair. Both contentions we think are ruled adversely by Alaska Consolidated Canneries v. Territory of Alaska, supra. The distinction attempted to be made by putting a strained construction upon the clause “where the taxes were not a fixed sum,” found in the latter part of that decision, is unsubstantial. In principle the two eases are the same, and the reasoning there employed is equally cogent here. To hold otherwise would be to say that only a contract, the obligations of which have been fully performed by the one party thereto, is protected against impairment.
Affirmed.
Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer:
|
songer_appel1_1_2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
INDEPENDENT SERVICE CORPORATION v. TOUSANT et al., Members of Industrial Accident Board.
No. 4034.
Circuit Court of Appeals, First Circuit.
May 4, 1945.
Edward C. Park, of Boston, Mass., and Philip F. Grogan, of Watertown, Mass. (Withington, Cross, Park & Mc-Gann, of Boston, Mass., of counsel), for appellant.
William Gardner Perrin, Asst. Atty. Gen., of Massachusetts (Clarence A. Barnes, Atty. Gen., of Massachusetts, of counsel), for appellees.
Maurice M. Goldman, of Boston, Mass., for Massachusetts State Federation of Labor, amicus curias.
Before MAHONEY and WOODBURY, Circuit Judges, and PETERS, District Judge.
MAHONEY, Circuit Judge.
This action involves the constitutionality of a Massachusetts statute. It was brought to enjoin the enforcement of § 25D of the Workmen’s Compensation Act, Chapter ,152, Gen. Laws of Massachusetts (Ter. Ed.), as amended by St. 1943, c. 529, § 7, which provides:
“No self-insurer or attorney acting in its behalf shall engage a service company or like organization to investigate, adjust, or settle claims under this chapter or to represent it in any matter before the department. Any violation of this section shall constitute reasonable cause for revocation of the license of a self-insurer under section twenty-five A of this chapter.”
Since November 15, 1943, the effective date of § 25D, the plaintiff has refrained from investigating, adjusting or settling claims for self-insurers, and the Industrial Accident Board has made it clear that it would revoke the license of any self-insurer who employed a service company to engage in such activities under the Act. As a result the plaintiff has lost contracts with self-insurers which would net it $2000 a year. It alleges that § 25D deprives it of liberty and property in violation of the Fourteenth Amendment.
The plaintiff, a Massachusetts corporation, was organized in 1936 as a “service company” to do safety engineering and statistical work. It investigated industrial accidents and advised employers as to methods and appliances designed to prevent such accidents. Among its clients were employers electing not to insure under the Workmen’s Compensation Act, insurance companies, and clients in public liability cases and casualty losses. Its contracts with non-insuring employers provided for the investigating of industrial accidents and the adjusting and settling of those claims. Those contracts alone fall within the prohibition of § 25D. There is no question but that the plaintiff may continue to do safety engineering and statistical work and to investigate industrial accidents for the purpose of preventing future accidents and arranging for medical care required by past accidents.
As originally enacted in 1911, the Massachusetts Workmen’s Compensation Act, as those adopted in other states about that time, was an elective compensation insurance law. In theory it was compulsory upon no one, neither employer, employee, nor insurer. Though elective in form it exerted pressure upon employers to carry compensation insurance by depriving them of certain of their common law defenses in actions brought by employees for personal injury. Since the Act was elective and not compulsory employers could refuse to take out workmen’s compensation insurance. Those employers thereby avoided the cost of insurance premiums which some regarded as too high in relation to the risks involved but retained their common law liability. Some employers who were willing to provide compensation benefits to their employees similar to those they would receive from an insurer under the Act, but directly out of the employers’ funds, developed substitute plans. Under these plans the employer carrying his own risk either provided for the investigating, adjusting and settling of claims within his own organization or employed a service company to do it for him. To insure savings the plans provided for the purchase of some form of stop-loss insurance which would indemnify the employer for any losses or claims paid which exceed a certain percentage of the amount he would have to pay for ordinary workmen’s compensation insurance. The figure fixed is usually 75% of that premium, and thereby the employer immunizes himself against his common law liability. Thus the employer setting up a substitute plan is in a position to limit his maximum cost to that of workmen’s compensation under the Act, and to the extent that the total costs of the service company, losses on claims paid, and the stop-loss insurance premium is less than the normal compensation insurance premium he makes savings and reduces the costs of workmen’s compensation. For example, if we take '100% as the cost of the normal premium the common allocation of costs under the substitute plan may be illustrated as follows: 10% for the service company, 15% for the stop-loss insurance premium, and 75% for the payment of losses. As the latter item is the largest the employer looks to it for savings, and to the extent that the service company keeps the amount of claims paid below the maximum figure not covered by stop-loss insurance the employer makes savings and the service company function is economically justified.
In 1943 the legislature enacted Chapter 529 adding § 25A through § 25D to the Act. This chapter in effect converts the Act from an elective compensation insurance law into a compulsory one by making the provision of workmen’s compensation mandatory with practically all employers. The employer, however, has an option in meeting the costs of compensation either of taking out insurance or acting as his own insurer. § 25A through § 25 C provide for the compulsory payment of compensation by insurance unless the employer elects to become a “self-insurer” under the Act. This he may do by obtaining a license from the Industrial Accident Board and complying with certain requirements respecting the furnishing of security for the payment of compensation to injured employees. The effect of this chapter with respect to the former non-insuring clientele of the plaintiff service company is to bring them and their employees within coverage of the Act but does not require such employers to purchase workmen’s compensation insurance. They may continue to finance the payment of workmen’s compensation out of their own funds, but § 25D precludes their continued reliance on service companies- such as the plaintiff in the investigating, adjusting and settling of claims.
The question to be decided is whether the provisions of § 25D prohibiting contracts between self-insurers and service companies is a reasonable exercise of police power. The plaintiff argues that the statute is arbitrary and discriminatory. It takes, the position that it was pursuing a lawful calling and argues that there is no rational ground for believing that it was reasonably necessary to prohibit self-insurers from employing service companies to accomplish the purposes of the Act as regulation would serve.
In an exhaustive opinion, the lower court considered the plaintiff’s arguments. Independent Service Corporation v. Tousant, D. C., 56 F.Supp. 75. Approaching the question from the standpoint of legislative power over employers who do not have policies of insurance complying with the Act, it noted that it is now well settled that the State has power to create a compulsory insurance system to secure adequate compensation to workmen for industrial accidents ; that instead of exercising that power to the full, the State may choose to allow the employer to remain outside the coverage of the Act providing that he gives up certain relevant rights; that since the legislature can deprive the non-insuring employer of his right to protect himself from liability by securing insurance which does not provide for the payment of compensation benefits “It is no great step from depriving an employer of his right to insure as he pleases to depriving him of his right to use a service company to investigate, adjust or settle claims of employees under the Workmen’s Compensation Act.” [56 F.Supp. 80]. The court below found some authorities who regarded service companies as proper and useful adjuncts to the administration of workmen’s compensation and others who regarded them as detrimental to the interest of employees and the system as a whole. Of the latter it said:
“They assert that a service company plan can survive only if the employer pays out less in settlements than he would have to pay as a premium to an insurance company; that the service company is therefore under an economic inducement to pay workmen low amounts as compensation for their injuries; that this economic inducement is not counterbalanced as in the case of lawyers by the professional discipline of the bar, or as in the case of insurance companies by the supervision of public authorities, or as in the case of settlement departments of the employer’s own business by neighborly sympathy and longstanding ties of mutual interest; and that the low payments under a service company plan not only prevent employees from getting uniform and hence fair compensation but also induce employers either not to join or to withdraw from a broad insurance scheme which would diversify and spread risks and would improve the administration and effectiveness of the Workmen’s Compensation Act.”
The court was of the opinion that m the light of the legislative materials and professional authorities before it the legislature could reasonably conclude that the use of service companies by self-insurers precluded workmen from receiving adequate compensation under the Act. Therefore it held thht the legislature “was not limited to an enactment which merely regulated the use of service companies by self-insurers; it had the power absolutely to prohibit their use,” citing Mugler v. Kansas, 123 U.S. 623, 8 S.Ct. 273, 31 L.Ed. 205; Powell v. Pennsylvania, 127 U.S. 678, 685, 686, 8 S.Ct. 992, 1257, 32 L.Ed. 253; Cf. United States v. Carolene Products, 304 U.S. 144, 151, 58 S.Ct. 778, 82 L.Ed. 1234.
The plaintiff contends that the lower court erred in failing to distinguish between self-insurers under a complusory act and non-insurers under an elective act and asserts that the only criticism of service companies before the legislature was directed at their use by non-insurers and is without any relevancy whatsoever with respect to their use by self-insurers under a compulsory act. The plaintiff further contends that the enactment of § 25D rests on the assumption on the part of the legislature that adjustments made by service companies for self-insurers qualified as such under § 25A of the Act would not be subject to the Act and to the supervision of the Industrial Accident Board. We see no merit in these contentions.
In our opinion the analysis of the District Court was correct. It is apparent from legislative history prior to November 15, 1943, the effective date of § 25D, that the use of substitute compensation plans which combined the use of service companies in the investigating, adjusting and settling of claims with stop-loss insurance putting a ceiling upon employers’ losses had been receiving considerable attention from the legislature. Furthermore we are satisfied that the criticism of service companies was not directed solely at their use by non-insurers outside the Act. In 1935 § 54A was added voiding stop-loss insurance policies which did not provide for the payment of compensation under the Act, and it was well understood that if this amendment had succeeded in forcing employers to carry workmen’s compensation insurance the business of service companies to that extent would have been circumscribed. In 1938 the Attorney General acted on complaints of abuses being practised by service companies, and in his report for the year ending November 30, 1938, Public Document No. 12, pp. 8, 9, it was stated that to sell their services service companies promise that the total amount paid to employees will not exceed the amount of premiums the employer would otherwise have to pay if he took out ordinary workmen’s compensation insurance; that they try to get injured workers to sign away their rights for the smallest amount possible, and that workers are generally forced to settle at very low figures, for if they sue at common law they risk losing their positions since the employer must meet adverse judgments out of his own funds and not an insurance company. The legislature had this report before it when it was considering the enactment of § 25D. It also had before it an article in 18 Boston University Law Review 1 (1938), which suggests that the history of the Massachusetts Workmen’s Compensation Act from 1911 until the depression began in 1929 was one of gradual expansion of the number of workmen covered, and that after 1929 the trend was reversed with employers in an effort to reduce expenses withdrawing from the Act to escape the cost of premiums.
In 1938 the legislature set up a Special Recess Commission for the purpose of investigating workmen’s compensation insurance. The report of that commission contained a majority and minority report on the subject of self-insurance revealing a substantial difference of opinion with respect to service companies. The majority thought that substitute compensation plans provided that service companies “would undertake to keep down the claims for injury in a given plant to a minimum through supervision of safety appliances and efficient and prompt attention to all injuries.” It cited testimony that some employers acting outside the Act dealt liberally with employees and paid benefits substantially the same as those provided under the Act and that both employers and employees seemed satisfied. It merely acknowledged the assertion “that costs were kept down through pressure upon employees not to assert claims, and failure to pay benefits as great as those provided for in the Act.” The minority report was far more critical. It provided in part: “When a workman was injured and there was negligence these substitute scheme promoters would then settle with the workers as cheaply as possible under the common law. If there were no negligence, as in 90% of the cases, then they would pay the worker practically nothing, and in many cases nothing, for the loss of a leg or an eye or an arm. Section 54A of the compensation act was passed to stop such substitute schemes. But it did not succeed in doing so. These substitute scheme promoters, therefore, are anxious to have a provision put in the law so that there may be self-insurance, that is, an employer who could pay his workmen directly, and the people who were formerly handling substitute schemes would then be handling the cases for self-insurers.” The period between 1938 and 1943 saw the introduction of numerous bills designed to legalize service companies. None of them became law.
In the light of legislative history and the materials on hand when the legislature considered § 25D, we are satisfied that there was a reasonable difference of opinion as to the place of the service company in the scheme of compulsory workmen’s compensation, and that the legislature could reasonably conclude that the economic pressure upon service companies to keep compensation payments down was so pressing as to constitute them an appropriate object of prohibition when considered in the light of an established public policy that workmen should receive adequate compensation for injuries. Therefore we are not disposed to upset the' conclusion of the legislature that there was something inherently harmful to the interest of workmen in the service company function.
This disposes of the contention of the plaintiff that it was pursuing a lawful calling, the abuse of which it concedes is subject to regulation. It also disposes of the arguments that since the Act is now compulsory and all compensation claims are subject to supervision by the Industrial Accident Board, the Board is in a position- to control abuses; and that if further regulation were necessary the legislature could set up direct controls over service companies and subject them to licensing requirements. Irrespective of the theoretical validity of the arguments they do not necessarily meet the actual problem. From the testimony taken at the trial it appears that more than 95% of all workmen’s compensation claims even under the amended Act are disposed of without close supervision by the Industrial Accident Board. Apparently it was the judgment of the legislature that the economic pressure upon service companies to keep the payments of losses down could not be restrained through regulation by the Industrial Accident Board since the latter dealt primarily with flagrant abuses and would not be a satisfactory control in the great mass of compensation cases.
Nor does the fact that insurance companies apparently may employ service companies without restriction necessarily indicate that § 25D is capricious. Insurance companies are subject to close and complete supervision. Moreover, the profit motive and fear of losses are less apparent. The insurance company may be prepared to pay compensation to the employees of one employer which exceeds the particular premium charged and make up its loss on other risks where compensation payments are less than premiums. It is also to be noted that premium rates are not fixed but adjustable according to loss experience of the risk.
It is clear that the State may require contributions to a state fund as the exclusive method of making payments required by a Workmen’s Compensation Act, Mountain Timber Co. v. Washington, supra; and that the State as a condition to permitting an employer to make such payments as a self-insurer, may prohibit him from insuring with a private company by requiring him either to contribute to a state fund or to act as his own insurer without the security of private insurance, Thornton v. Duffy, 254 U.S. 361, 41 S.Ct. 137, 65 L.Ed. 304. The present act gives the employer the option of taking out ordinary workmen’s compensation insurance or of acting as his own insurer. As a condition to obtaining a license as a self-insurer the Act provides that such self-insurer must not employ a service company. The plaintiff’s final contention is that the legislature has forbidden employers to contract with service companies for the purpose of ultimately driving them to provide for compensation benefits through conventional insurance and that in so doing it has gone too far in abridging freedom of contract. It distinguishes Mountain Timber Co. v. Washington, supra, and Thornton v. Duffy, supra, as dealing with state funds and asserts that the effect of the statute here is to require all employers to insure with private companies. We do not agree.
We have already adverted to materials before the legislature indicating that § 25D was enacted for reasons quite independent of those urged by the plaintiff. Nor are we of the opinion that the practical operation and effect of the statute will exert an unreasonable pressure upon employers, to insure with private companies. The plaintiff assumes that service companies are the sine qua non of self-insurance. Yet it will be conceded that the larger employer who maintains his own service department never has to turn to the service company for the investigating, adjusting and settling of claims against him. Nor are we satisfied that the smaller employer who cannot maintain his own service department is foreclosed from acting as a self-insurer. In this connection the decision of the Supreme Judicial Court in Friend Brothers, Inc., v. Seaboard Surety Co., 316 Mass. 639, 56 N.E.2d 6, 9, 153 A.L.R. 962, is to be noted. In that case the court held that § 54A of the Act which made void stop-loss policies taken out by non-insurers was not applicable to such policies issued to self-insurers under the Act and said:
“We do not believe that this statute,, which, as pointed out in Alecks’ case, supra, was for the purpose of compelling employers to insure under the act, was intended, after they had insured their employees by becoming self-insurers, to make it difficult for them to do so by denying them the right to reinsure. Such a construction would impute to the Legislature an intent to discourage self-insurance and to weaken the financial strength of the self-insurer who seeks by reinsurance to increase it for the benefit of himself and his employees. Where a statute such as St.1943, c. 529, makes it compulsory for one to insure his employees and gives him the choice of either insuring with an insurer or acting as a self-insurer, it would take clear and unequivocal language to convince us that one of these methods was to be regarded with less favor than the other. Such language is not to be found either in c. 529 or in section 54A.”
Section 25D was a part of c. 529. It would also seem therefore that the Supreme Judicial Court was not of the opinion that this section was enacted for the purpose of forcing employers to insure with private companies, or that that would be its only effect.
The judgment of the District Court is affirmed with costs to the appellees in this court.
New York Central R. v. White, 243 Ü.S. 188, 37 S.Ct. 247, 61 L.Ed. 667, L.R.A.1917D, 1, Ann.Cas.1917D, 629; Mountain Timber Co. v. Washington, 243 U.S. 219, 37 S.Ct. 260, 61 L.Ed. 685, Ann.Cas. 1917D, 642; Thornton v. Duffy, 254 U. S. 361, 41 S.Ct. 137, 65 L.Ed. 304.
Such as his common law defenses. New York Central R. v. White, supra; Young v. Duncan, 218 Mass. 346, 106 N. E. 1; Opinion of the Justices, 309 Mass. 571, 595, 596, 34 N.E.2d 527.
Alecks’ ease, 301 Mass. 403, 17 N.E.2d 173; Opinion of the Justices, 309 Mass. 596, 34 N.E.2d 527.
St.1935, c. 425. In Aleck’s Case, supra, the Supreme Judicial Court states that the reasons for § 54A are plain and points out that the willingness of some employers to risk the enlarged liability of the non-insurer to avoid paying premiums would increase if they could obtain at smaller expense liability insurance against the payment of damages in common law actions; and that “Thus the pressure which was intended to drive all employers into insuring under the Workmen’s Compensation Act would be removed, and the public policy of the Commonwealth that all employers should come under that act would fail.” [301 Mass. 403, 17 N.E.2d 175.]
Commonwealth of Massachusetts, Senate Report No. 456, February, 1939, Report of the Special Recess Commission appointed for the purpose of investigating Workmen’s Compensation, ’Silicosis, and Hazardous Employments, pp. 8-10, 25, 26.
House Bill No. 1765 of 1941 providing for legalization of service companies; House Bill No. 2038 of 1941 which would repeal section 54A and permit the issuance of stop-loss insurance policies; House Bills No. 2818 of 1941 and No. 1030 oí 1943 permitting stop-loss insurance; a substitute proposal identified as House No. 0000, May 4, 1943, expressly legalizing service companies was considered with open hearings by the Committee which reported out the bill that upon enactment became § 25D.
Tie plaintiff cites the decision in Friend Brothers, Inc. v. Seaboard Surety Co., supra, as showing that all sound reasons for opposing the use of service companies by employers had vanished with the amendment to the Act, making provisions for compensation compulsory but offering employers an option to become self-insurers under the Act.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_usc1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
In re LOWRY. C. I. T. CORPORATION v. MACHEN.
No. 2936.
Circuit Court of Appeals, Fourth Circuit.
April 8, 1930.
Fred E. Martin, of Norfolk, Va., for appellant.
H. M. Woodward, of Norfolk, Va., for appellee.
Before PARKER and N0RTHC0TT, Circuit Judges, and HAYES, District Judge.
NORTHCOTT, Circuit Judge.
One William Lowry filed a voluntary petition in bankruptcy in the District Court of the United States for the Eastern District of Virginia, on the 10th day of June, 1929, and he was, on the same day, duly adjudicated a bankrupt. In the schedules filed by him, he listed a Hudson automobile as subject to the lien of appellant company. Appellee was duly appointed and qualified as trustee for the bankrupt estate. In July, 1929, appellant filed a reclamation petition setting up its lien on the automobile. The trustee opposed the petition, and, after a hearing in August, 1929, the referee entered an order directing the trustee to surrender said Hudson automobile to appellant. On a petition for review, the •judge of the District Court, afteí a hearing, entered an order in September, 1929, setting aside the order of the referee and dismissing the reclamation petition. From which action this appeal was taken.
There is no dispute as to the facts, and the agreed statement of facts shows that the Hudson automobile in possession of the bankrupt at the time of his adjudication had been purchased by him from C. E. Wright & Co. as a used car. The ear when new had been purchased by one Calkins. At some time during the Calkins ownership, the original motor No. 475476, having become defective, was replaced by a motor which was numbered 497577, and was later turned back to the Wright Company on a trade, and sold to the bankrupt on January 18, 1929.
At the time of the latter sale, Wright & Co. made application to the Motor Vehicle Commissioner of Virginia for transfer of title to the bankrupt, and failed to make note of the change of the motor number on the original certificate of title. A title certificate (No. B 477639) showing motor No. 475476 instead of motor No. 497577, was issued to the bankrupt with the lien of appellant indorsed thereon. Wright & Co., in January, 1929, sold and transferred said lien to the appellant corporation.
The pertinent part of the Virginia Motor Vehicle Registration Act reads as follows: Section 2154 (39) j, See. 9:
“(b) Every application for a certificate of title shall contain a statement of the applicant’s title and of all liens or encumbrances upon said vehicle and the names and addresses of all persons having any interest therein and the nature of every such interest.
“(c) Every application for a certificate of title shall contain a brief description of the vehicle to be registered, including the name of the maker, the engine or serial number * * *
“(d) In the event the vehicle for which the registration of the certificate of title is applied is specially constructed, reconstructed or foreign vehicle, such fact shall be stated in the application.”
Section 2154 (39) L of Code of Virginia (1926) reads in part as follows:
“Said certificate of title when issued by the Motor Vehicle Commissioner showing a lien or encumbrance, shall be deemed adequate notice to the Commonwealth, creditors and purchasers that a lien against the motor vehicle exists, and the recording of such reservation of title, lien or encumbrance in the county or city where the purchaser or debtor resides or elsewhere, is not necessary and shall not be required. * * *
“Liens or encumbrances placed on motor vehicle * * * must be shown on said certificate of title * * * Said certificate of title of such motor vehicle shall be delivered to the person or corporation holding the first lien or encumbrance upon said motor vehicle and retained by him or them until the entire amount of his or their lien is fully paid by the owner of said vehicle.”
It would seem that where the lien of the vendor or his assignee is recorded in the Motor Vehicle Commissioner’s Office and on the face of the title certificate, the recording of the conditional sale contract shall not be necessary. And the conditional sale contract, though not recorded, is an essential and integral part of the whole transaction. The contract contained the correct motor and serial numbers of said automobile.
The title certificate B477639, issued to the bankrupt, and in possession of appellant at the time of the bankruptcy, showed on its face that the said automobile was a Hudson brougham, 1928 model; that the owner was William M. Lowry, 427 Wilson Road, Norfolk, Va.; that the said Lowry states on oath that the said motor vehicle is subject to the following lien: $530.28 on conditional sale contract, dated January 18,1929, in favor of C. I. T. Corporation, Norfolk, Va.
The conditional sale contract signed by the bankrupt shows on its face that a Hudson brougham, 1928 model, motor number 497577, serial number 784296, was sold to William M. Lowry, 427 Wilson Road, Norfolk, Va.; that there was a balance due of $530.28; that the contract was dated January 18, 1929, and that said chattel will be kept at 427 Wilson Road, Norfolk, Va.
The sole question in the case is whether the fact that an erroneous number was given in the title certificate as the engine number would invalidate the lien of appellant, and, in considering this question, we must bear in mind that the bankruptcy court is in effect a court of equity, and endeavors, where possible, to do equity. Seottsville Nat. Bank v. Gilmer, 37 E.(2d) 227, decided by this court, January 14, 1930. This being true, it seems to us inequitable to hold that a certificate of title, under the Virginia law, that had an erroneous engine number but that referred to a conditional sale contract that gave the correct engine and serial numbers, correctly described the automobile, the place where it could be found and the person who owned and had possession of it, would not be sufficient to maintain the lien as against the trustee in bankruptcy.
Under the circumstances here to' take that which in all equity and justice is the property of appellant for the benefit of general creditors would not be doing equity. The certificate of title, defective as it was, was sufficient to pass title to the bankrupt, and upon the bankrupt’s title and possession of the automobile the trustee bases his claim. The question at once arises that if the certificate was sufficient for the one purpose why then is it not sufficient for the purpose of maintaining the lien?
Certainly the statement of the lien in the certificate of title would be sufficient to put a purchaser for value upon notice as to the lien. MacCallum-Donahoe Finance Co. v. Warren et al,, 122 Wash. 176, 210 P. 368.
It has also been held that a wrong registration number inserted in an application for insurance did not invalidate the insurance where there was evidence identifying the car as the one intended to be insured, and when the car was the only one owned by the insured. White v. Home Mut. Ins. Ass’n, 189 Iowa, 1051, 179 N. W. 315. See, also, Moore v. North River Ins. Co., 111 Kan. 420, 207 P. 760; Northwestern Nat. Ins. Co. v. Chambers, 24 Ariz. 86, 206 P. 1081.
The same rule that applies to the description of an article in a chattel mortgage or conditional sale contract would apply here, and this court has held in Tilton v. H. W. Wade Mfg. Co. (C. C. A.) 2F.(2d) 358, 359, that a description not more specific or detailed than the one here was sufficient. “The general rule upon this subject as stated by the text-writers, and which seems to be sustained by the weight of decided eases, is, that a deed of trust or mortgage conveying chattels, when recorded, is constructive notice to third persons, if the description in the deed or mortgage is such as will enable them to identify the property, aided by the inquiries which the deed or mortgage itself indicates and directs.” Tilton v. H. W. Wade Mfg. Co., supra. See, also. Florence v. Morien, 98 Va. 26, 34 S. E. 890.
In National Cash Register Co. v. Marks, 13 F.(2d) 628, the opinion of the Circuit Court of Appeals of the Sixth Circuit is also- to the same effect.
Appellee relies upon a number of cases from other states on the question of the faulty description, but a study of these eases shows that point to have been settled under statutes different from the Virginia statute, which latter only requires a “brief description” of a vehicle, and we therefore do not think the cases relied upon are controlling here. Certainly the greater equity is to allow appellant’s claim, and the order of the court below is accordingly reversed, and this cause is remanded.
Reversed.
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_habeas
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether the case was an appeal of a decision by the district court on a petition for habeas corpus. A state habeas corpus case is one in which a state inmate has petitioned the federal courts.
ALUMINUM COMPANY OF AMERICA, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondent, International Paper Co. and Scott Paper Company, Illinois Central Gulf Railroad Co., et al., Intervenors. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, Illinois Central Gulf Railroad Company, Southern Railway Company, and Louisville and Nashville Railroad Company, Petitioners, v. UNITED STATES of America and Interstate Commerce Commission, Respondents, International Paper Company and Scott Paper Company, Intervenors.
Nos. 78-1505, 78-2155.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 17, 1979.
Decided Nov. 19, 1979.
John W. Adams, Jr., Mobile, Ala., with whom Donal L. Turkal, St. Louis, Mo., John F. Smith, Louisville, Ky., William H. Teasley, Washington, D. C., and David J. Kaufman, were on the brief, for St. Louis-San Francisco Railroad Co., et al., petitioner in No. 78-2155 and intervenor in No. 78-1505.
Dickson R. Loos, Washington, D. C., for petitioner in No. 78-1505.
Ellen K. Schall, Atty., I. C. C., Washington, D. C., with whom Mark L. Evans, Gen. Counsel, Barry Grossman and Ron M. Landsman, Attys., Dept, of Justice, Washington, D. C., were on the brief, for respondents. Christine N. Kohl, formerly Deputy Associate Gen. Counsel, I. C. C., Washington, D. C., was also on the brief.
Olga Boikess, Washington, D. C., for Intervenor, International Paper Co., et al. in No. 78-1505 and No. 78-2155.
Also John H. Powers, III, Dept, of Justice, Antitrust Div., Washington, D.C., entered an appearance, for respondent, United States of America.
Before LEVENTHAL and WALD, Circuit Judges, and PENN , United States District Court Judge for the District of Columbia.
Sitting by designation pursuant to 28 U.S.C. § 292(a).
Opinion for the Court filed by Circuit Judge LEVENTHAL.
LEVENTHAL, Circuit Judge:
These appeals seek to set aside orders of the Interstate Commerce Commission (Commission) rendered in a consolidated proceeding. In No. 78-1505, the Aluminum Company of America (Alcoa) seeks review of the Commission’s ruling that line-hauled railroads serving Alcoa’s Mobile, Alabama, plant need not absorb fully the switching charges of a terminal railroad on shipments to and from the Alcoa plant. In No. 78-2155, the line-haul railroads seek review of the Commission’s ruling that their refusal to absorb fully the switching charges of the terminal railroad on shipments of pulpwood and wood chips to two paper companies with facilities at Mobile is a violation of Sections 1(6) and 2 of the Interstate Commerce Act. For the reasons stated below, we affirm the Commission’s order in No. 78-1505, and in No. 78-2155, we remand the record to the Commission for clarification of its reasoning.
I
Those industries in Mobile, Alabama, which are located within the confines of the Alabama State Docks are served by a terminal railroad, an agency of the State known as Terminal Railway Alabama State Docks (TRASD). Alabama State Docks is divided into three zones. Switching charges are‘assessed by zone. Alcoa’s plant is in zone one, which has water access but is not physically reached by any of the line-haul carriers. TRASD connects with several line-haul carriers at interchange tracks approximately two miles from Alcoa’s plant. The International Paper Company (IP) and the Scott Paper Company (Scott) facilities are located in zone two. Southern Railway physically reaches the plantsite of IP, and the Louisville & Nashville Railroad Company reaches the plantsite of Scott.
TRASD publishes a tariff of switching charges. Prior to November 1, 1975, the entire amount of switching charges in zone one were absorbed by the line-haul carriers. Thus, the line-haul carriers published absorption tariffs providing for absorption of the exact amount of the TRASD charges. In zones two and three, the same practice prevailed on all freight except pulpwood and wood chips. On those commodities, the line-haul carriers had limited their absorption to approximately two-thirds of the switching charge. The difference (approximately $6.00 per car) was paid by the paper companies.
Effective November 1, 1975, TRASD increased all of its switching charges. The line-haul carriers did not increase their absorption by a corresponding amount. Since November 1975, the line-haul carriers have been billing Alcoa, in addition to the line-haul rate, $8 per car, the difference between the absorption tariff and TRASD charges. In zones two and three, the new TRASD charges were fully absorbed on all freight other than pulpwood and wood chips. For these two commodities, the line-haul carriers now absorbed only about half of the TRASD charge, billing the paper companies approximately $11 per car.
II
We turn first to the petition for review brought by Alcoa (No. 78-1505). In that ruling, the Commission applied the doctrine that the published line haul rates include delivery only to points actually on the line of the carrier, in the absence of tariff provisions to the contrary. This principle is consistent with the past decisions of the Commission.
The carriers do have the authority to add to the line haul tariff a separate switching absorption tariff, in which the carrier undertakes to absorb switching charges of another carrier whose services begin after the completion of the line haul.
Alcoa contends that the tariff indicating rates from and to “Mobile” must be construed in conjunction with the carrier’s industrial guide, which shows Alcoa as a Mobile plant. Alcoa suggests that it is only asking for a reference to the guide in order to clarify the tariff. The Commission is of the view that the provision of the tariff relating to the switching charges clearly indicates that the switching charges are not entirely absorbed, and that the guide cannot alter its impact.
Overall the court is of the view that this is a matter of interpretation of the tariff in which the expertise of the Commission requires that we give its ruling particular deference. The effect of the Commission’s ruling is that Alcoa, which is located in Zone 1 of the Terminal Railway Alabama State Docks (TRASD) switching zones, a zone not reached by any line-haul carrier, may not challenge the carrier’s practice of absorbing or failing to absorb switching charges unless the practice results in forbidden discrimination or some other violation of the statute appears. Having considered the various arguments made by the petitioner in light of the record materials provided for our review, the court sees no basis for concluding that the Commission’s action was arbitrary or erroneous as a matter of law.
III
We now turn to the petition for review filed by the railroads (No. 78-2155). This petition challenges the ruling of the Commission that, for the paper companies (International Paper and Scott Paper) located in switch zone 2, the line haul carriers are required to absorb switching charges paid by the carriers to TRASD for switching services.
The court is in need of further illumination from the Commission as to its rationale. The Commission appears to have relied on the Lilley Exhibit, which it felt demonstrated “a widespread practice of absorption of switching charges” for other paper-mills in the South, as “strong evidence” of the reasonableness of the practice of absorption. It is not clear whether there is substantial evidence to support the existence of such a “widespread practice.” The railroads provided the court an analysis of the 75 examples identified in the Lilley exhibit, which analysis purports to show that, in all, there are only four instances of “absorption.” Counsel for the ICC put it that the number of cases may have been slightly higher.
The railroads submit that, of the 75 examples shown in the Lilley exhibit, 39 involved plants that are physically reached by only one line haul carrier, which makes deliveries over its own tracks with no extra charge because it has the obligation to make such deliveries; thus, they argue, there are no switching charges involved and there is no absorption of switching charges. In 22 instances, mills are physically reached by two or more carriers who are obligated as part of their common carrier duty to make delivery to these mills on the line. Again, there is an obligation of the line haul carrier to perform the delivery services, even though it may choose to use another carrier for the final delivery. Here, again, it is asserted that the obligation of the line haul carrier to make complete deliveries means that there is no true “absorption of switching charges.” In 10 instances the line haul carrier does not physically reach the facility of the receiver, and the switching charges are paid by the industry in addition to the line-haul rate. In only four instances, say the carriers, are switching charges absorbed.
The reference to “widespread practice of absorption of switching charges” suggests that the ICC defined the relevant universe to include all line haul carriers which deliver to papermills to the South, without regard to whether the railroads’ own lines reached the industry plant involved. Switching charges, of course, cannot be absorbed if they are not included (/. e. if delivery is made on the carriers’ own lines). Similarly, if the carrier’s own line reaches the plant but the carrier makes delivery over another line, it seems absorption is required by law, as a carrier must deliver to points on its line at the published line haul rate. Such “absorption” is not a proper basis for widespread practice.
At oral argument, Commission counsel argued in support of the Commission’s order that even if the universe of industry plants off the rails of line-haul carriers was the relevant universe, the existence of absorption in 4 (or perhaps 6) of 10 cases would be “widespread.” It is by no means clear that such small numbers are what the Commission had in mind in citing “widespread practice,” and the court would want clarification that this was the approach of the Commission before ruling in the case.
Counsel for the paper companies has a different approach, which stresses that the uniform rate scale uniquely applicable to the paper industry in the South was cost based, and that the costs were determined to include switching. The report of the economic consulting firm, L. E. Peabody & Associates, Inc., said in describing the switching costs included in the cost based figures:
Destination switching is defined as all switching performed by road trains, yard engines, and switching and terminal companies for the placement of the loaded car subsequent to the last line-haul movement and the pulling of the empty prior to the first line-haul movement. Switching movements not involving pulpwood and wood chip cars will not be considered in determining destination switching applicable to pulpwood and wood chips. Non-productive time will be developed and allocated to productive time. (Emphasis added.)
J.A. at 122. Since the shippers are paying for such switching, in view of the way in which the cost-based line haul rates were determined, the paper companies submit that it would be double counting to add a switching charge, although it was acknowledged at oral argument that the Commission did not expressly refer to this contention.
There is an allusion in the ICC opinion to the fact that “the prevailing line haul rates reflect a uniform mileage scale for traffic movement throughout the territory.” J.A. 610. However, that reference is too abbreviated to make clear to the court the Commission’s rationale.
It occurs to the court that the Commission may have intended to say that in a situation where there are uniform mileage charges, city area to city area, and where the plants involved are served by at least one line haul carrier, and in most instances there is no addition of switching charges, that it is unreasonable to add switching charges. To put it another way, since at least one line haul carrier has the obligation to deliver to the plant, the objective of the uniform charges would be defeated if any carrier added switching charges. However, this was not articulated by the Commission, and therefore the court cannot affirm on the basis of this approach. In the circumstances, the court is of the view that its review function requires that it remand the record to the Commission for clarification of its reasoning. The Commission is required to supplement its opinion. It has leave of court to modify its order if it be so advised.
So ordered.
. The Southern Railway Company did not absorb the switching charge for shipments of wood chips.
. On November 2, 1979, counsel for the appellant in No. 78-2155 submitted a copy of the decision of the ICC in Absorption of Switching Charges, Southern Territory (ICC Docket No. 9206, October 1, 1979). That decision is not before us for review. If there is some divergence of approach, the ICC can harmonize its rulings when it takes up on remand No. 78-2155, its ruling on the absorption of switching charges for the paper companies.
Question: Was the case an appeal of a decision by the district court on a petition for habeas corpus?
A. no
B. yes, state habeas corpus (criminal)
C. yes, federal habeas corpus (criminal)
D. yes, federal habeas corpus relating to deportation
Answer:
|
songer_realresp
|
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 formally listed respondents in the case are the "real parties." That is, are they the parties whose real interests are most directly at stake? (e.g., in some appeals of adverse habeas corpus petition decisions, the respondent is listed as the judge who denied the petition, but the real parties are the prisoner and the warden of the prison) (another example would be "Jones v A 1990 Rolls Royce" where Jones is a drug agent trying to seize a car which was transporting drugs - the real party would be the owner of the car). For cases in which an independent regulatory agency is the listed respondent, the following rule was adopted: If the agency initiated the action to enforce a federal rule or the agency was sued by a litigant contesting an agency action, then the agency was coded as a real party. However, if the agency initially only acted as a forum to settle a dispute between two other litigants, and the agency is only listed as a party because its ruling in that dispute is at issue, then the agency is considered not to be a real party. For example, if a union files an unfair labor practices charge against a corporation, the NLRB hears the dispute and rules for the union, and then the NLRB petitions the court of appeals for enforcement of its ruling in an appeal entitled "NLRB v Widget Manufacturing, INC." the NLRB would be coded as not a real party. Note that under these definitions, trustees are usually "real parties" and parents suing on behalf of their children and a spouse suing on behalf of their injured or dead spouse are also "real parties."
METROPOLITAN LIFE INSURANCE COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 15366.
United States Court of Appeals Sixth Circuit.
April 11, 1964.
Burton A. Zorn, New York City (Harry E. Marble, Cincinnati, Ohio, George G. Gallantz, Marvin Dicker, Thomas F. Delaney, Associate Gen. Counsel, Metropolitan Life Ins. Co., New York City, on the brief; Marble & Vordenberg, Cincinnati, Ohio, Proskauer, Rose, Goetz & Mendelsohn, New York City, of counsel), for petitioner.
Warren M. Davison, Atty., N. L. R. B., Washington, D. C. (Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Gladys Kessler, Atty., N. L. R. B., Washington, D. C., on the brief), for respondent.
Isaac N. Groner, Washington, D. C., on the brief for amicus curiae, Insurance Workers International Union, AFL-CIO.
Before MILLER and CECIL, Circuit Judges, and McALLISTER, Senior Circuit Judge.
CECIL, Circuit Judge.
This case is before the Court upon the petition of the Metropolitan Life Insuranee Company to review and set aside an order of the National Labor Relations Board, respondent, issued against the petitioner on April 2, 1963, pursuant to Section 10(c) of the National Labor Relations Act. (Section 160(c), Title 29, U.S.C.) The respondent, by answer, has requested that the order be enforced, The petitioner and the respondent will be referred to hereinafter as the Company and the Board, respectively.
The Board found that the Company violated Section 8(a) (5) and (1) of the Act (Section 158(a) (1) and (5), Title 29, U.S.C.), by refusing to bargain with the union certified as the representative of a group of its employees. The Board’s Decision and Order is reported at 141 N.L.R.B. 1074. The sole question presented here is whether the Boards determination of an appropriate unit (Section 159(b), Title 29, U.S.C.) was controlled by the extent of union organization in violation of Section 9(c) (5) of the Act. (Section 159(c) (5), Title 29, U.S.C.)
The unit as determined by the Board consisis of nine district offices of the Company. Six of these offices are located m the city of Cleveland, Cuyahoga Coun0hl°’ and three are located m the metropolitan area of Cleveland. The three offices outside of the city of Cleveland are all in Cuyahoga County and are described as follows: Shaker Heights District in Cleveland Heights, Cuyahoga District in Parma and Lakewood District in Eoc^ Ri™r; These s^urban offices are within eight or nine miles of the center 0f Cleveland. The nearest excluded office is in Akron, Summit County, Ohio, thirty miles from the center of Cleveland an(j approximately twenty-one miles from the nearest included office in Cuyahoga County.
, . , The dlstrlct offices are ^rouPed mto' fourteen territorial divisions by the Cornpany for administrative purposes. Each division is headed by a “superintendent of agencies” who reports directly to a Company vice-president. The offices here “volved are “ the Central Territory, a division composed of the states of Ohio,. Indiana and West Virginia. The super“tendent of agencies supervises the district offices in his territory. He maintains constant contact with the district officf and isResponsible for: (1) the productl0n of new business; (2) the servicing and conservation of existing buginess. (3) saies promotion activities; and> (4) recruiting) training, appraisal, appointment, transfer, termination, promotion, demotion and arrangement for retirement of agents, managers and assistant managers. In conjunction with the field management staff officers, he directs the creation and abolition of district offices and the alteration of boundary lines between districts. The superintendent of agencies, within his territory, has the power to alter or amend rules, regulations and the forms of the Company.
Business policy of the Company is formulated at its home office and applied uniformly throughout the country. Applications for insurance are processed only at the home office. All business in Ohio is regulated by the state of Ohio. The Company must qualify to do business in the state and all policy forms must be approved by the State Insurance Department.
The district offices are directed by a manager and one or more assistant managers. Sales and administrative policies are prescribed by the home office and the manager has little discretionary authority. His duties are to administer the office in accordance with the policies set by the Company from its home office under supervision of the superintendent of agencies. The district manager has no final authority to hire or discharge employees or to process grievances. There is virtually no interchange or transfer of agents among the various district offices.
The Company contends that a unit should be first, the whole of the United States, or, second, an entire division, or, third, an entire state. There are about nine hundred district offices in the United States with approximately 20740 agents. In the Central Territorial Division there are sixty-eight offices with approximately 1556 agents. There are 1012 agents who work out of forty-four offices in the state of Ohio and in the nine offices here involved there are approximately 230 agents.
In 1944, the Board ruled that the smallest appropriate unit for insurance agents would thereafter be state-wide. Metropolitan Life Ins. Co., 56 N.L.R.B. 1635. The Board consistently followed this standard until 1961 at which time it changed its policy and determined that a single district office was an appropriate unit for collective bargaining. Quaker City Life Ins. Co., 134 N.L.R.B. 960. In that case the Board found that one district office in Alexandria, Virginia, was an appropriate unit. The union won an election and the Board certified it as the bargaining agent for the employees of that office. The Court of Appeals for the Fourth Circuit affirmed. N. L. R. B. v. Quaker City Life Ins. Co., 319 F.2d 690.
The Third Circuit upheld the Board in its certification of two out of three district offices in the state of Delaware as an appropriate unit. Metropolitan Life Ins. Co. v. N. L. R. B., 328 F.2d 820. In this case the Brandywine and Kirk-wood offices were in the Wilmington area and the third one was forty-six miles from Wilmington.
The First Circuit denied enforcement of the Board’s order where one district office out of ten in Rhode Island was certified as an appropriate unit. Metropolitan Life Ins. Co. v. N. L. R. B., 327 F.2d 906, C.A. 1. In this case the Board found that the district office in Woonsocket was an appropriate unit. It was twelve miles away from the nearest office of the Company which was in Pawtucket. There were eight district offices and two detached offices in Rhode Island.
The Board has followed this changed policy throughout the country. The Board is not bound by a rule once adopted if it determines subsequently that the reason for the rule fails and it does not act arbitrarily, unreasonably or in violation of the Act. S. E. C. v. Chenery Corp., 332 U.S. 194, 67 S.Ct. 1575, 1760, 91 L.Ed. 1995; N. L. R. B. v. National Container Corp., 211 F.2d 525, C.A. 2; Optical Workers’ Union Local 24859 v. N. L. R. B., 227 F.2d 687, C.A. 5, cert. den, 351 U.S. 963, 76 S.Ct. 1027, 100 L.Ed. 1484; N. L. R. B. v. Pittsburgh Plate Glass Co, 270 F.2d 167, C.A. 4, cert. den, 361 U.S. 943, 80 S.Ct. 407, 4 L.Ed.2d 363. As the court said in Metropolitan Life Ins. Co. v. N. L. R. B, 328 F.2d 820, C.A. 3, above cited: “It was the Board's informed view that the 1944 Metropolitan rule ‘unfairly prejudiced the collective bargaining rights of employees.’ There is a vast difference between taking away an obstacle to wider union organization and collective bargaining which is the explicit legislative purpose and mandate of the Act, and determining appropriate units on the basis of employee organization.”
The Board has the authority under the Act to determine the appropriate unit for collective bargaining. (Section 159(b), Title 29, U.S.C.) It has wide discretionary powers in this respect. What is an appropriate unit is a question of fact to be determined by the Board upon the facts of each ease. Its decision will not be disturbed except for an abuse of discretion or violation of the statute. Packard Motor Car Co. v. N. L. R. B., 330 U.S. 485, 67 S.Ct. 789, 91 L.Ed. 1040; Pittsburgh Plate Glass Co. v. N. L. R. B, 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251; N. L. R. B. v. Prudential Ins. Co., 154 F.2d 385, 388, C.A. 6; N. L. R. B. v. Morgantown Full Fashioned Hosiery Co, 241 F.2d 913, C.A. 4.
A unit as determined by the Board may be co-extensive with union organization but the Act is not violated unless extent of organization is the controlling motive of the Board in making its determination. The Board found here that the grouping of the nine offices in the Cleveland area was justified by “cogent geographic considerations.” It was stated in its opinion: “Therefore, as the Petitioner is seeking a unit comprising all of the Employer’s offices in a separate and distinct geographic area in the City of Cleveland, Ohio, and as there is no recent history of collective bargaining and no union seeks a broader unit, we find that such a unit may be appropriate for purposes of collective bargaining. 138 N.L.R.B. 512, 515.
We conclude that the extent of union organization was not the controlling reason for the Board’s determination of an appropriate unit in this case. Geographical considerations were not “simulated grounds” but the actual basis for the Board’s decision. The Board did not violate either subsection (b) or (c) (5) of Section 159, Title 29, U.S.C.
Having determined that the unit for collective bargaining as fixed by the Board is an appropriate unit it follows that the order of the Board (141 N.L.R.B. 1074) must be enforced. It is so ordered.
. “(a) It shall be an unfair labor practice for an employer — •
“(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title; * * *
“(5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 159 (a) of this title.
. Insurance Workers International Union, AFL-CIO.
. “(b) The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof * *
. „(5) Jn determining whetlier a unit is. appropriate for the purposes specified in subsection (b) of this section the extent to which the employees have organized shall not be controlling.”
. Metropolitan Life Ins. Co., 144 N.L.R.B. No. 15, (Chicago area); Metropolitan Life Ins. Co., 138 N.L.R.B. 734, (Iowa-North Dakota-South Dakota) ; Equitable Life Ins. Co., 138 N.L.R.B. 529, (Cleveland area) ; Western and Southern Life Ins. Co., 138 N.L.R.B. 538, (Pennsylvania) .
Question: Are the formally listed respondents in the case the "real parties", that is, are they the parties whose real interests are most directly at stake?
A. both 1st and 2nd listed respondents are real parties (or only one respondent, and that respondent is a real party)
B. the 1st respondent is not a real party
C. the 2nd respondent is not a real party
D. neither the 1st nor the 2nd respondents are real parties
E. not ascertained
Answer:
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songer_appel2_1_2
|
A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
Linda L. HEBERT, et al., Plaintiffs, Appellants, v. Cordelia WICKLUND, d/b/a Lake Farm, et al., Defendants, Appellees.
No. 84-1050.
United States Court of Appeals, First Circuit.
Argued May 7, 1984.
Decided July 12, 1984.
Richard F. McCarthy, Boston, Mass., with whom Richard E. Bennett, and Will-cox, Pirozzolo & McCarthy P.C., Boston, Mass., were on brief, for plaintiffs, appellants.
Nonnie S. Burnes, Boston, Mass., with whom Richard S. Boskey, and Hill & Barlow, Boston, Mass., were on brief, for defendant, appellee Cordelia Wicklund.
Before COFFIN and BREYER, Circuit Judges, and PETTINE, Senior District Judge.
Of the District of Rhode Island, sitting by designation.
COFFIN, Circuit Judge.
Appellants Linda and Roger Hebert appeal from an award of summary judgment and attorney’s fees to defendant Cordelia Wicklund in a copyright infringement action arising out of Wicklund’s alleged copying of the Heberts’ basketweaving kit. In granting Wicklund’s motion for summary judgment, the district court noted that the Heberts had produced no evidence to counter Wicklund’s evidence that she had written and marketed her kit long before receiving the Heberts’ copyrighted material.
The Heberts contend that the district court abused its discretion in accelerating the pace of this litigation, thereby denying the Heberts an opportunity to conduct discovery prior to the district court’s disposition of Wicklund’s summary judgment motion. The Heberts further contend that the record, although hurriedly assembled, contained sufficient genuine issues of material fact concerning copyright infringement to preclude summary disposition.
On July 6, 1983, the Heberts filed their verified complaint along with a motion for a temporary restraining order and preliminary injunction. On July 18, Wicklund filed an opposition to the Heberts’ motion. Wicklund also filed a motion for summary judgment and a supporting affidavit that explained her prior publication and sale of her basketweaving kit. Also on July 18, the court held a hearing on the Heberts’ motion for provisional relief. Cecil Ryan, a shop owner in Suncook, New Hampshire, testified for Wicklund. He stated that he had been selling Wicklund’s kit at his shop since January 1981 and that the instructions in Wicklund’s kit had remained substantially unchanged since that time. The record indicated that Wicklund did not receive a copy of the Heberts’ kit until August 1982.
At the close of the hearing, the court denied the Heberts’ request for injunctive relief on the grounds that they had not demonstrated a likelihood of success on the merits. The court warned that if the Heberts could not contradict Ryan’s testimony concerning prior use, then that testimony would probably warrant summary judgment for Wicklund.
On July 28, the Heberts filed an opposition to Wicklund’s motion for summary judgment. The Heberts cited Fed.R.Civ.P. 56(f) in asking the court to delay decision of the motion pending further discovery. Also on July 28, the court directed the parties to file supporting affidavits within five days, and informed the parties that Wicklund’s motion for summary judgment would be decided on affidavits, without further hearing, and that the court would consider any sworn and uncontradicted testimony given at the July 18 hearing. A clerk of the court apparently informed the Heberts’ counsel of this order by telephone on July 28.
Five days later, on the August 2 deadline, the Heberts filed a motion to dismiss without prejudice, which they withdrew on August 10 following Wicklund’s opposition. On August 3, the Heberts’ counsel wrote an undocketed letter to the district court’s courtroom clerk. The letter asked the clerk to bring to the court’s attention the Heberts’ motion to dismiss. The letter further requested that the court delay a decision on Wicklund’s summary judgment motion pending further investigation and examination of the then-unavailable transcript of the July 18 hearing.
On August 16, two weeks after the August 2 deadline, the Heberts filed the affidavit of attorney Fred Scribner III, an investigator retained by the Heberts’ counsel. The Scribner affidavit compared the instructions and diagrams in the Hebert and Wicklund basketweaving kits and recounted Scribner’s conversations with Cecil Ryan, the shop owner who had testified for Wicklund at the July 18 hearing, and with Mrs. Pat Smalley, who had purchased several of Wicklund’s kits from Ryan’s store. On Wicklund’s motion, the court struck the Scribner affidavit on the grounds that it was untimely and violative of Fed.R.Civ.P. 56(e) for containing “nothing except inadmissible opinions and hearsay”. Memorandum and Order, Dec. 5, 1983, App. 248.
The Heberts then attempted to take several depositions, but Wicklund filed a motion for a protective order staying discovery pending a decision on her motion for summary judgment. The depositions remained untaken as of December 5, when the court granted Wicklund’s motion for summary judgment and awarded Wicklund her requested $1,400 in attorney’s fees.
The judgment against the Heberts seems attributable to their inattention both to the central issue of prior use and to the Federal Rules of Civil Procedure in the crucial weeks following the July 18 hearing. The Ryan testimony at that hearing and the Wicklund affidavit filed the same day presented facts that formed the foundation of Wicklund’s defense of prior use. The Heberts could not then simply rest on their evidence that they possessed valid copyrights on their kit and catalogue, that the Hebert and Wicklund kits had many similarities, and that Wicklund had obtained a copy of the Heberts’ kit and catalogue in August 1982.
As of the district court’s August 2 deadline, the Heberts had filed no affidavits or other documents on the issue of prior use. The Heberts’ verified complaint and the affidavit of Linda Hebert detailed the similarity of the Hebert and Wicklund kits, but neither document mentioned, much less refuted, Wicklund’s defense of prior use. In the Scribner affidavit, the Heberts attempted to attack Wicklund’s assertion of prior use, but the district court properly rejected that affidavit for the reasons stated. See supra page 220 (affidavit untimely and in violation of Rule 56(e) in several respects).
We can understand how the Heberts might have been unable to marshal facts to “prove the negative” — that Wicklund had not published or marketed her kit prior to August 1982, when she acquired the Heberts’ kit — in the brief period permitted by the court. However, the Federal Rules provide an escape hatch. Rule 56(f) states:
“Should it appear from the affidavits of a party opposing the [summary judgment] motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.”
The Heberts did not comply with the rule. They never filed an affidavit presenting reasons why they could not present facts essential to justify their opposition. The Heberts now contend! that three submitted items constituted the functional equivalent of a 56(f) affidavit: (1) their opposition to Wicklund’s motion for summary judgment; (2) an undocketed letter from their counsel to the district court’s courtroom clerk; and (3) the Scribner affidavit. We will examine these documents in order.
(1) The opposition is not an affidavit. The opposition explicitly refers to Rule 56(f) in asking for more time to proceed with depositions and other discovery, but it gives no reasons for the requested delay. Reference is made to the verified complaint and to the affidavit of Linda Hebert, but these documents neither mention the issue of prior use nor explain the need for more time. Nonetheless, the district court in fact responded to the Heberts’ request by granting a five-day extension, but the Heberts filed nothing in that five-day period besides a motion, subsequently withdrawn, to dismiss without prejudice.
(2) The letter sent by the Heberts’ counsel to the courtroom clerk on August 3 similarly does not satisfy the requirements of Rule 56(f). The letter was not docketed; it was not an affidavit; and it was not submitted by a party. The Heberts suggest that Littlejohn v. Shell Oil Co., 483 F.2d 1140, 1146 (5th Cir.) (en banc), cert. denied, 414 U.S. 1116, 94 S.Ct. 849, 38 L.Ed.2d 743 (1973), required the district court to treat the letter as a Rule 56(f) affidavit. In Littlejohn, the Fifth Circuit, “[o]ut of an abundance of caution and to prevent a possible injustice”, treated a non-affidavit pleading filed by plaintiffs counsel in an antitrust suit as sufficient under Rule 56(f).
Littlejohn does not require acceptance of the Heberts’ counsel’s letter as a Rule 56(f) affidavit. The Littlejohn submission (a) was docketed (b) within applicable time limits and (c) referred to the specific facts that the plaintiff needed to discover from the defendants to oppose their summary judgment motion. In the case at bar, the district court would have been justified in rejecting the letter for being either undocketed or late. Moreover, the letter’s request for more time was not so compelling so as to convince the court that only a more-than-flexible application of Rule 56(f) would avoid an injustice. The August 3 letter stated that the Heberts needed an extension of the deadline because the transcript of the July 18 hearing would not be available until August 8. Admittedly, the transcript would have permitted the Heberts to fine tune any rebuttal to the prior use defense presented through the testimony of Ryan, the sole witness at the hearing. But the transcript was by no means indispensable, considering that the Heberts’ counsel had attended the hearing and had cross-examined Ryan, and that Ryan’s entire testimony, which was simple and straightforward, occupied but seven pages of a twenty-one-page transcript. App. 116-22.
(3) The Scribner affidavit was untimely, Scribner is not a party, and his affidavit did not state reasons why the Heberts could not file opposing affidavits. His affidavit was not labelled as a Rule 56(f) affidavit, and no accompanying motion or pleading designated his affidavit as a 56(f) submission.
In sum, the district court acted well within its discretion in not treating the opposition, the letter, or the Scribner affidavit as Rule 56(f) affidavits. See, e.g., Wallace v. Brownell Pontiac-GMC Co., 703 F.2d 525, 527 (11th Cir.1983) (to invoke Rule 56(f), party must file affidavit stating reasons why more time is needed); SEC v. Spence & Green Chemical Co., 612 F.2d 896, 901 (5th Cir.1980) (“The determination of the adequacy of nonmovant’s rule 56(f) affidavits and the decision whether to grant a continuance thereon rests in the sound discretion of the trial court.”), cert. denied, 449 U.S. 1082, 101 S.Ct. 866, 66 L.Ed.2d 806 (1981). Although a district court should generally apply Rule 56(f) liberally, the court need not employ the rule to spare litigants from their own lack of diligence. 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure: Civil 2d § 2740, at 532-35 (1983). “The most obvious indication of lack of diligence is a failure on the part of the non-movant to present affidavits under either Subdivision (e) or (f).” Id. § 2740, at 535. The Heberts’ actions fall within this definition of “lack of diligence”. The Heberts had a brief but sufficient opportunity to file either Rule 56(e) affidavits creating a genuine issue of fact concerning prior use or Rule 56(f) affidavits giving reasons why Rule 56(e) affidavits could not be filed by the court-imposed deadline.
Attorney’s Fees
The Heberts also appeal from an award of $1,400 in attorney’s fees to Wicklund. The district court awarded the fees under the Copyright Act of 1976, 17 U.S.C. § 505, which states:
“In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.”
On July 18, the day on which Wicklund filed her (ultimately successful) motion for summary judgment, Wicklund also filed a separate motion for attorney’s fees. On August 3, Wicklund’s counsel filed a supporting affidavit that detailed her work on the case. The Heberts made no response, before or after judgment, to Wicklund’s motion or affidavit for attorney’s fees. Wicklund contends that the Heberts may not for the first time on appeal challenge the district court’s assessment of attorney’s fees. We agree.
The Heberts offer two reasons why we should not apply this circuit’s usual rule barring appeal of issues not advanced in the district court. See, e.g., Cohen v. President & Fellows of Harvard College, 729 F.2d 59, 60-61 (1st Cir.1984) (per curiam); Johnston v. Holiday Inns, Inc., 595 F.2d 890, 894 (1st Cir.1979).
The Heberts argue that they implicitly opposed the motion for attorney’s fees, which may be awarded only to a prevailing party, when they filed their opposition to Wicklund’s motion for summary judgment. Even if we accept this statement, on appeal the Heberts have presented an entirely distinct reason for disallowing fees. Below, they argued against an award of fees because Wicklund was not entitled to be the prevailing party. On appeal, they have argued, with substantial case support, that even if Wicklund prevails on the merits, she should not be awarded fees because she has not shown that the Heberts’ suit was frivolous, vexatious, or brought in bad faith. We can easily imagine circumstances under which plaintiffs in the Heberts’ position could lose on the merits but still make an independent, successful argument against a defendant’s motion for attorney’s fees. See, e.g., Jartech, Inc. v. Clancy, 666 F.2d 403, 407 (9th Cir.) (affirming Copyright Act judgment for defendants based on defense of “fair use”, but reversing award of attorney’s fees because plaintiffs’ suit was not frivolous), cert. denied, 459 U.S. 826, 879, 103 S.Ct. 59, 175, 74 L.Ed.2d 62, 143 (1982). In the context of this case, the merits and fees are separate issues, and opposition on the merits does not suffice to preserve this challenge to an award of attorney’s fees.
The Heberts also contend that they had no obligation to respond to Wicklund’s motion for attorney’s fees, because Wicklund had prematurely applied for fees before the court had declared her the “prevailing party”. However, a district court may, and often does, simultaneously decide the merits and the attorney’s fees issues of a suit. Such a disposition, where possible, represents an economical use of judicial resources, not only for the district court, but also for the court of appeals, which is thereby spared the burden of piecemeal appeals on the merits and on fees. Cf. White v. New Hampshire Department of Employment Security, 455 U.S. 445, 454, 102 S.Ct. 1162, 1168, 71 L.Ed.2d 325 (1982). The fee award in this case should not have come as a total surprise to the Heberts. Wicklund had filed a separate motion for fees with a detailed supporting affidavit, and the district court had stated at the July 18 hearing that it would end the suit if the Heberts could not refute Wicklund’s evidence of prior use. Thereafter, the Heberts “proceeded at their own risk in not filing a proper opposition to the request for fees, not requesting a hearing, ... and in not indicating, even in a perfunctory manner, that they would oppose an award of fees if [their summary judgment opposition was unsuccessful]”. Kargman v. Sullivan, 589 F.2d 63, 67 (1st Cir.1978).
We conclude that the Heberts have not properly preserved the issue of attorney’s fees. See Pye v. Mitchell, 574 F.2d 476, 484 (9th Cir.1978) (under fee provision of old Copyright Act, appellant could not for the first time on appeal challenge appellees’ summary of compensable hours); cf. Miles v. Sampson, 675 F.2d 5, 9-10 (1st Cir.1982) (party may not on appeal make his initial demand for hearing on issue of attorney’s fees under 42 U.S.C. § 1988). The Heberts’ appeal of the district court’s award of attorney’s fees to Wicklund is not so compelling that our failure to give it full consideration constitutes a gross miscarriage of justice. We review awards of attorney’s fees under the Copyright Act only for abuse of discretion, see, e.g., Hughes v. Novi American, Inc., 724 F.2d 122, 125-26 (Fed.Cir.1984); Twentieth Century Music Corp. v. Frith, 645 F.2d 6, 7 (5th Cir.1981) (per curiam), and the district court awarded a modest fee ($1,400) for extremely able work.
Affirmed. Costs to appellees. No assessment of attorney’s fees for work performed on the appeal.
. The Heberts sought damages and injunctive relief under the Copyright Act of 1976, 17 U.S.C. § 501 et seq. They also sought relief under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and under Mass.Gen.Laws ch. 93A, §§ 2 & 11.
. With respect to Wicklund's motion for summary judgment, filed July 18, the court had extended the 10-day period for filing oppositions and supporting affidavits and memoranda, Local Rule 12(a)(2), by five days, from July 28 to August 2. According to the district court’s docket sheet, the Scribner affidavit was two weeks late. The Heberts’ counsel had not even retained Scribner until August 5, three days after the deadline. Affidavit of Richard F. McCarthy, Sept. 1, 1983, App. 229.
. The district court noted the letter's deficiencies: “This court cannot function efficiently or fairly if attorneys assume that this type of casual representation is sufficient to invoke the powers of this court. I did not recognize this letter as a motion, and would have denied it if I had.” Memorandum and Order, Dec. 5, 1983, App. 248.
. Many cases state that continuances should be routinely granted under Rule 56(f) where the moving party has sole possession of the relevant facts that the non-moving party needs to oppose the summary judgment motion, e.g., Ward v. United States, 471 F.2d 667, 670 (3d Cir.1973); Concord Laboratories, Inc. v. Concord Medical Center, 552 F.Supp. 549, 554 (N.D.Ill.1982) (trademark infringement case in which defendant moved for summary judgment on basis of defense of continuous prior use, but plaintiff survived motion in part because material evidence was in defendant’s control); 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure: Civil 2d § 2741, at 545-48 (1983), but this maxim represents a factor that the court should consider only after the non-moving party has complied with the requirements of the rule. See, e.g., Wallace v. Brownell Pontiac-GMC Co., 703 F.2d at 527; Contemporary Mission, Inc. v. United States Postal Service, 648 F.2d 97, 107 (2d Cir.1981).
. Our present ruling should come as no surprise to the Heberts’ counsel, who was counsel for the plaintiffs in Kargman.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
sc_respondent
|
101
|
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.
GENERAL MOTORS CORP. v. DEVEX CORP. et al.
No. 81-1661.
Argued December 7, 1982
Decided May 24, 1983
Marshall, J., delivered the opinion for a unanimous Court. Stevens, J., filed a concurring opinion, post, p. 658.
George E. Frost argued the cause for petitioner. With him on the briefs was Arthur G. Connolly.
Sidney Bender argued the cause for respondents. With him on the brief were Aaron Lewittes, Frederick B. Ziesenheim, David F. Anderson, William C. McCoy, Jr., and Lynn Alstadt.
James B. Lynn, James N. Dresser, and Brian J. Leitten filed a brief for the Bar Association of the District of Columbia as amicus curiae urging affirmance.
Justice Marshall,
delivered the opinion of the Court.
This case concerns the proper standard governing the award of prejudgment interest in a patent infringement suit under 35 U. S. C. §284.
I
In 1956 respondent Devex Corporation (Devex) filed a suit for patent infringement against petitioner General Motors Corporation (GMC) in the United States District Court for the Northern District of Illinois. Devex alleged that GMC was infringing Reissue Patent No. 24,017, known as the “Henricks” or “Devex” patent. The patent covered a lubricating process used in the cold-forming of metal car parts by pressure. On June 29, 1962, the District Court held the Devex patent invalid and entered judgment for GMC. On appeal the United States Court of Appeals for the Seventh Circuit reversed the finding of invalidity and remanded for further proceedings. Devex Corp. v. General Motors Corp., 321 F. 2d 234 (1963), cert. denied, 375 U. S. 971 (1964).
The case was then transferred to the United States District Court for the District of Delaware. After a trial the District Court ruled that there had been no infringement. 316 F. Supp. 1376 (1970). The United States Court of Appeals for the Third Circuit reversed, holding that the patent was infringed by GMC’s use of certain processes in the production of bumpers and cold-extruded nonbumper parts. 467 F. 2d 257 (1972), cert. denied, 411 U. S. 973 (1973).
On remand the case was referred to a Special Master for an accounting. The Special Master ruled that three major divisions of GMC had used infringing processes in the manufacture of bumper parts, and selected a royalty rate “by reference to hypothetical negotiations” that it found would have taken place if GMC had sought to obtain a license from Devex. Special Master’s Report, at 71. See 667 F. 2d 347, 352 (CA3 1981). The District Court modified the royalty rate selected by the Special Master and entered judgment pursuant to 35 U. S. C. §284, awarding Devex $8,813,945.50 in royalties, $11,022,854.97 in prejudgment interest, and postjudgment interest at the rate allowed by state law. 494 F. Supp. 1369 (1980). The court determined what the annual royalty payments would have been, and calculated prejudgment interest on each payment from the time it would have become due. The Court of Appeals affirmed. 667 F. 2d 347 (1981). The court held that “the award of [prejudgment] interest as the yearly royalty payments became due was not an abuse of discretion.” Id., at 363. We granted certiorari to consider the standard applicable to the award of prejudgment interest under 35 U. S. C. §284, 456 U. S. 988 (1982), and we now affirm.
h-H
Prior to 1946 the provision of the patent laws concerning a plaintiff’s recovery in an infringement action contained no reference to interest. The award of interest in patent cases was governed by the common-law standard enunciated in several decisions of this Court. E. g., Duplate Corp. v. Triplex Safety Glass Co., 298 U. S. 448 (1936); Tilghman v. Proctor, 125 U. S. 136 (1888). Under the Duplate standard, prejudgment interest was generally awarded from the date on which damages were liquidated, and could be awarded from the date of infringement in the absence of liquidation only in “exceptional circumstances,” such as bad faith on the part of the infringer. 298 U. S., at 459.
In 1946 Congress adopted amendments to the provision of the patent laws governing recovery in infringement actions. Act of Aug. 1, 1946, § 1, 60 Stat. 778, 35 U. S. C. §§ 67, 70 (1946 ed.). One of the amended provisions, which has since been recodified as 35 U. S. C. § 284, states in relevant part:
“Upon finding for the claimant the court shall award the claimant damages adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court.”
The Courts of Appeals have reached differing conclusions as to whether § 284 incorporates the Duplate standard and more generally as to the standard governing the award of prejudgment interest under §284.
We have little doubt that §284 does not incorporate the Duplate standard. Under that standard, which evolved as a matter of federal common law, prejudgment interest could not be awarded where damages were unliquidated, absent bad faith or other exceptional circumstances. By contrast, § 284 gives a court general authority to fix interest and costs. On the face of § 284, a court’s authority to award interest is not restricted to exceptional circumstances, and there is no warrant for imposing such a limitation. When Congress wished to limit an element of recovery in a patent infringement action, it said so explicitly. With respect to attorney’s fees, Congress expressly provided that a court could award such fees to a prevailing party only “in exceptional cases.” 35 U. S. C. §285. The power to award interest was not similarly restricted.
There is no basis for inferring that Congress’ adoption of the provision concerning interest merely incorporated the Duplate standard. This is not a case in which Congress has reenacted statutory language that the courts had interpreted in a particular way. In such a situation, it may well be appropriate to infer that Congress intended to adopt the established judicial interpretation. See, e. g., Herman & MacLean v. Huddleston, 459 U. S. 375, 384-386 (1983); Lorillard v. Pons, 434 U. S. 575, 580-581 (1978). In this case, however, the predecessor statute did not contain any reference to interest, and the 1946 amendments specifically added a provision concerning interest in patent infringement actions. We cannot agree with petitioner that the only significance of Congress’ express provision for the award of interest was the incorporation of a common-law standard that developed in the absence of any specific provision concerning interest.
Having decided that § 284 does not incorporate the Duplate rule, we turn to a consideration of the proper standard for awarding prejudgment interest under that provision. Although the language of § 284 supplies little guidance as to the appropriate standard, for the reasons elaborated below we are convinced that the underlying purpose of the provision strongly suggests that prejudgment interest should ordinarily be awarded where necessary to afford the plaintiff full compensation for the infringement.
Both the background and language of §284 provide evidence of this fundamental purpose. Under the pre-1946 statute, the owner of a patent could recover both his own damages and the infringer’s profits. See Aro Mfg. Co. v. Convertible Top Co., 377 U. S. 476, 505 (1964); n. 4, supra. A patent owner’s ability to recover the infringer’s profits reflected the notion that he should be able to force the infringer to disgorge the fruits of the infringement even if it caused him no injury. In 1946 Congress excluded consideration of the infringer’s gain by eliminating the recovery of his profits, Aro Mfg. Co., supra, at 505, the determination of which had often required protracted litigation. H. R. Rep. No. 1587, 79th Cong., 2d Sess., 1-2 (1946); S. Rep. No. 1503, 79th Cong., 2d Sess., 2 (1946); 92 Cong. Rec. 9188 (1946) (remarks of Sen. Pepper). At the same time, Congress sought to ensure that the patent owner would in fact receive full compensation for “any damages” he suffered as a result of the infringement. See H. R. Rep. No. 1587, supra, at 1 (“any damages the complainant can prove”); S. Rep. No. 1503, supra, at 2 (same). Accordingly, Congress expressly provided in § 284 that the court “shall award the claimant damages adequate to compensate for the infringement.” (Emphasis added.)
The standard governing the award of prejudgment interest under §284 should be consistent with Congress’ overriding purpose of affording patent owners complete compensation. In light of that purpose, we conclude that prejudgment interest should ordinarily be awarded. In the typical case an award of prejudgment interest is necessary to ensure that the patent owner is placed in as good a position as he would have been in had the infringer entered into a reasonable royalty agreement. An award of interest from the time that the royalty payments would have been received merely serves to make the patent owner whole, since his damages consist not only of the value of the royalty payments but also of the forgone use of the money between the time of infringement and the date of the judgment.
This very principle was the basis of the decision in Waite v. United States, 282 U. S. 508 (1931), which involved a patent infringement suit against the United States. The patent owner had been awarded unliquidated damages in the form of lost profits, but had been denied an award of prejudgment interest. This Court held that an award of prejudgment interest to the patent owner was necessary to ensure “complete justice as between the plaintiff and the United States,” id., at 509, even though the statute governing such suits did not expressly provide for interest. Just as § 284 provides that the court shall award “damages adequate to compensate for the infringement,” the statute at issue in Waite provided that the patentee shall receive “reasonable and entire compensation.” 35 U. S. C. §68 (1940 ed.). In addition, § 284 contains a specific provision concerning interest. Waite thus provides strong support for our conclusion that prejudgment interest should ordinarily be awarded under § 284.
We do not construe §284 as requiring the award of prejudgment interest whenever infringement is found. That provision states that interest shall be “fixed by the court,” and in our view it leaves the court some discretion in awarding prejudgment interest. For example, it may be appropriate to limit prejudgment interest, or perhaps even deny it altogether, where the patent owner has been responsible for undue delay in prosecuting the lawsuit. There may be other circumstances in which it may be appropriate not to award prejudgment interest. We need not delineate those circumstances in this case. We hold only that prejudgment interest should be awarded under § 284 absent some justification for withholding such an award.
III
Because we hold that prejudgment interest should ordinarily be awarded absent some justification for withholding such an award, a decision to award prejudgment interest will only be set aside if it constitutes an abuse of discretion. The District Court held that GMC infringed Devex’s patent over the course of a number of years and awarded Devex a reasonable royalty as compensation. While GMC contends that Devex was guilty of causing unnecessary delay, the District Court rejected this contention when it concluded that “Devex has done no worse than fully litigate its claims achieving a large judgment in its favor” and awarded Devex costs on the basis of this conclusion. 494 F. Supp., at 1380. On these facts, we agree with the Court of Appeals that the award of prejudgment interest was proper.
Accordingly, the judgment of the Court of Appeals for the Third Circuit is
Affirmed.
The suit also named Houdaille Industries as a defendant. After the case against GMC was transferred to the United States District Court for the District of Delaware, the case against Houdaille Industries was tried separately, see Devex Corp. v. Houdaille Industries, Inc., 382 F. 2d 17 (CA7 1967), and eventually settled.
Claim 4 of the patent covers:
“The process of working ferrous metal which comprises forming on the surface of the metal a phosphate coating and superimposing thereon a fixed film of a composition comprising a solid meltable organic binding material containing distrubted there through a solid inorganic compound meltable at a temperature below the melting point of the ferrous metal phosphate of said coating and having a hardness not exceeding 5 on the Mohs’ hardness scale, and thereafter deforming the metal.”
In less technical terms, the Devex process employed “phosphate, soap and borax ... to lubricate the pressure-forming operation, preventing harmful contact between the metal products and the machinery with which they are formed .... [T]he phosphate, soap and borax combination is especially beneficial because it may be easily cleaned from the metal product following its formation.” 494 F. Supp. 1369, 1372 (Del. 1980).
The Special Master also ruled that multiple damages and attorney’s fees, which are authorized by 35 U. S. C. §§ 284 and 285, would be inappropriate in this case. 667 F. 2d, at 356, n. 8. These findings were adopted by the District Court and affirmed by the Court of Appeals and are not before us.
Rev. Stat. § 4921, as amended, 42 Stat. 392, 35 U. S. C. § 70 (1964 ed.), provided in relevant part:
“[Ujpon a decree being rendered in any such case for an infringement the complainant shall be entitled to recover, in addition to the profits to be accounted for by the defendant, the damages the complainant has sustained thereby.”
Under the common-law rule a plaintiff’s damages were often treated as liquidated if they were relatively certain and ascertainable by reference to established market values. See generally Miller v. Robertson, 266 U. S. 243, 258 (1924); D. Dobbs, Law of Remedies §3.5 (1973); C. McCormick, Law of Damages §§ 51, 54-56 (1935); Prejudgment Interest: An Element of Damages Not to be Overlooked, 8 Cumberland L. Rev. 521, 522-523 (1977). Thus a plaintiff whose damages were determined by reference to an established royalty that the plaintiff charged for the use of the patent was entitled to prejudgment interest. In contrast, where a plaintiff’s damages, as here, were based on a reasonable royalty determined by the court, they were unliquidated and not entitled to prejudgment interest, absent exceptional circumstances.
In the 1952 codification, §§ 67 and 70 of the 1946 Code were consolidated in § 284, which has remained unchanged through the present day. The stated purpose of the codification was merely “reorganization in language to clarify the statement of the statutes.” H. R. Rep. No. 1923, 82d Cong., 2d Sess., 10, 29 (1952).
Compare Columbia Broadcasting System, Inc. v. Zenith Radio Corp., 537 F. 2d 896 (CA7 1976) (no prejudgment interest absent exceptional circumstances); Radiator Specialty Co. v. Micek, 395 F. 2d 763 (CA9 1968) (same) (dictum), with Georgia-Pacific Corp. v. U. S. Plywood-Champion Papers, Inc., 446 F. 2d 295 (CA2) (§284 does not incorporate Duplate standard), cert. denied, 404 U. S. 870 (1971); Trio Process Corp. v. L. Goldstein’s Sons, Inc., 638 F. 2d 661 (CA3 1981) (same); General Electric Co. v. Sciaky Bros. Inc., 415 F. 2d 1068 (CA6 1969) (same); Milgo Electronic Corp. v. United Business Communications, Inc., 623 F. 2d 645 (CA10) (same), cert. denied, 449 U. S. 1066 (1980).
Section 285 provides: “The court in exceptional cases may award reasonable attorney fees to the prevailing party.” The phrase “exceptional cases” was not contained in the 1946 amendments, but was added by the 1952 compilation for purposes of clarification only. See n. 6, supra. The language of the 1946 amendments provided in relevant part that “the Court may in its discretion award reasonable attorney’s fees to the prevailing party.” 35 U. S. C. § 70 (1964 ed.) (emphasis added).
The wording of the amendment passed by Congress in 1946 was slightly different. It provided that the claimant “shall be entitled to recover general damages which shall be due compensation” for the infringement. 35 U. S. C. §70 (1946 ed.) (emphasis added). See n. 6, supra.
Section 284 derived from a House bill which specifically provided for an award of interest “from the time the infringement occurred.” H. R. 5311, 79th Cong., 2d Sess. (1946); see H. R. Rep. No. 1587, 79th Cong., 2d Sess., pt. 2, p. 1 (1946). The bill as modified by the Senate Committee and enacted into law replaced this language with the language currently contained in §284. The legislative history suggests that the language substitution was intended solely to make the award of attorney’s fees discretionary rather than mandatory; there was no indication that the Senate Committee intended any substantive change in the treatment of interest. See S. Rep. No. 1503, 79th Cong., 2d Sess., 2 (1946). The passage of the Senate bill in the House was preceded by an assurance by Representative Lanham, who managed the bill, that the only substantive modification of the House bill concerned the attorney’s fees provision. 92 Cong. Rec. 9881 (1946).
See Waite v. United States, 282 U. S. 508, 509 (1931); Jacobs v. United States, 290 U. S. 13, 16 (1933) (interest from time of the taking is necessary to constitute adequate compensation under the Fifth Amendment); Miller v. Robertson, 266 U. S. 243, 258 (1924) (prejudgment interest required for “full compensation”). The traditional view, which treated prejudgment interest as a penalty awarded on the basis of the defendant’s conduct, has long been criticized on the ground that prejudgment interest represents “delay damages” and should be awarded as a component of full compensation. See Dobbs, supra n. 5, § 3.5, at 174; McCormick, supra n. 5, § 51, at 206-211; 8 Cumberland L. Rev., supra n. 5, at 521. A rule denying prejudgment interest not only undereompensates the patent owner but also may grant a windfall to the infringer and create an incentive to prolong litigation. There is no reason why an infringer should stand in a better position than a party who agrees to pay a royalty and then fails to pay because of financial difficulties.
See, e. g., Board of Comm’rs v. United States, 308 U. S. 343, 352-353 (1939); Redfield v. Bartels, 139 U. S. 694, 701 (1891); First National Bank of Chicago v. Material Service Corp., 597 F. 2d 1110, 1120-1121 (CA7 1979). See generally McCormick, supra n. 5, at 220-221, 228-229 (cases cited therein); 8 Cumberland L. Rev., supra n. 5, at 534 (cases cited therein). The determination whether the plaintiff has unduly delayed prosecution of the lawsuit is committed to the discretion of the district court and is reviewable on appeal only for abuse of discretion.
The District Court’s decision to award costs rested on its conclusion that Devex did not cause “unnecessary delay or [obtain] only slight success.” 494 F. Supp., at 1380. The Court of Appeals affirmed the award of costs, and that issue is not before us.
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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songer_r_natpr
|
1
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". 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.
Timothy RYAN v. BURLINGTON COUNTY, NEW JERSEY et al. Appeal of William H. FAUVER, Commissioner of Corrections, and Joseph Call, Deputy Director.
No. 87-5847.
United States Court of Appeals, Third Circuit.
Argued June 2, 1988.
Decided Nov. 2, 1988.
W. Cary Edwards, Atty. Gen., James J. Ciancia, Asst. Atty. Gen., Douglass L. Der-ry, Deputy Atty. Gen. (argued), Trenton, N.J., for appellants.
Joseph Goldberg (argued), Slimm, Dash & Goldberg, Westmont, N.J., Albert Dragon, A. Dragon Associates, Philadelphia, Pa., for Timothy Ryan.
Before SEITZ, SLOVITER and HUTCHINSON, Circuit Judges.
OPINION OF THE COURT
HUTCHINSON, Circuit Judge.
Defendants William H. Fauver and Joseph G. Call appeal a district court order, 674 F.Supp. 464, denying their motion for summary judgment in a 42 U.S.C.A. § 1983 (West 1981) action brought by Timothy Ryan. Ryan sought compensatory and punitive damages for injuries he sustained while a pretrial detainee in the Burlington County Jail. We have jurisdiction to review the district court’s order as it pertains to Fauver and Call’s claim of qualified immunity under 28 U.S.C.A. § 1291 (West Supp.1988). See Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985). We hold that Fauver and Call did not establish an entitlement to qualified immunity and, accordingly, will affirm the district court’s order.
I.
The Burlington County Jail is a small, two story building in Mount Holly, New Jersey. Its first floor contains dormitory housing and its second contains maximum security cell blocks and six dormitory cells. In 1977 and 1978, inmates at the county jail brought civil rights actions against the county sheriff, his chief deputy and the Burlington Board of Chosen Freeholders, alleging, among other things, that the jail was overcrowded and that there was no effective classification procedure. The cases were consolidated and eventually settled. The Settlement Agreement limited the number of inmates that could be housed in individual and dormitory cells, “except in emergencies,” capping the total number of inmates at the county jail at 117. Appendix (App.) at 354a-55a. The Agreement also provided for renovation of the county jail by June 22, 1983, to include an inmate reception area with at least eight individual detention rooms “for classification.” Id. at 354a.
On September 30, 1983, Timothy Ryan was arrested in Medford Township, New Jersey, and charged with motor vehicle violations. Because he could not make bail, he was sent to the Burlington County Jail, where he was placed in a dormitory cell along with nine other persons. One of these was Maurice Scott, who had violated the conditions of his parole on a state prison sentence and was awaiting transfer to a state facility. During the two-month period in which he was incarcerated at the county jail pending this transfer, Scott had been involved in several violent attacks on other inmates. Burlington County Jail documents show that Scott had been convicted of a violent crime that resulted in the injury or death of another person. See id. at 379a.
On October 4, 1983, Scott attacked Ryan. At some point after the attack, prison guards placed Ryan on a stretcher and carried him to the jail’s infirmary. There, he was handcuffed and shackled before being taken by ambulance to a hospital. Hospital personnel determined that Ryan’s neck had been broken, rendering him quadriplegic.
In April, 1985, Ryan brought an action seeking compensatory and punitive damages and attorney’s fees under 42 U.S.C.A. §§ 1983, 1985 and 1988 (West 1981) against Burlington County; the Burlington County Board of Chosen Freeholders; the Warden of the Burlington County Jail; county prison guards and officials; the Burlington County Solicitor’s office; Michael J. Hogan, part-time Solicitor of Burlington County; William H. Fauver, Commissioner of the New Jersey Department of Corrections; and Joseph G. Call, Deputy Director of the Division of Adult Institutions. Ryan claimed that defendants overcrowded the Burlington County Jail, precluding effective classification of inmates and causing his injury, in violation of his liberty interest in personal security and his right as a pretrial detainee not to be punished prior to an adjudication of guilt.
Defendants Fauver and Call filed a motion to dismiss the complaint or, in the alternative, for summary judgment on the basis of eleventh amendment immunity and qualified immunity. The district court reserved decision on this motion and ordered that Fauver and Call be deposed. After giving their testimony on deposition, Fau-ver and Call renewed their motion to dismiss or for summary judgment, arguing with respect to the § 1985 claim that Ryan failed to show any class-based discrimination and with respect to the § 1983 claim that (1) they could not foresee that Ryan would be injured by Scott while in custody; (2) they had no knowledge of the conditions under which Ryan was incarcerated and were not responsible for the day-to-day administration of the county jail; (3) they were free from suit in their official capacities under the eleventh amendment; and (4) they violated no clearly established rights of which reasonable persons in their positions would have known.
On November 9, 1987, the district court dismissed the § 1985 claim, the state law claims and the § 1983 claims premised on the fourth, fifth and eighth amendments. It also dismissed the complaint against Fauver and Call in their official capacities. The court denied Fauver and Call’s motion on all other grounds. Fauver and Call now appeal the denial of their motion with respect to qualified immunity.
II.
Ryan contends that we lack appellate jurisdiction under Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985), because the issues raised by Fauver and Call on appeal are not separable from and collateral to the merits of this case, and resolution of these issues would require review of the record. Development of a record is required in some cases under Anderson v. Creighton, — U.S. -, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Anderson teaches that cases requiring development of a record do not in every instance fall outside the scope of Mitchell.
In Mitchell, the Supreme Court held that a district court’s denial of a claim of qualified immunity is an appealable “final decision” under 28 U.S.C.A. § 1291 to the extent that it turns on an issue of law, notwithstanding the absence of a final judgment. Mitchell, 472 U.S. at 530, 105 S.Ct. at 2817. In Anderson, the Court explained that the issue of law in a qualified immunity case is the “objective (albeit fact-specific)” question whether a reasonable official could have believed his actions lawful in light of clearly established law and the information he possessed. Anderson, 107 S.Ct. at 3040. Resolution of this fact-specific question may require discovery and the development of a record “tailored specifically to the question of [the official’s] qualified immunity.” Id. at 3042 n. 6. Mitchell and Anderson are not designed to ease the workload of appellate judges; the necessity of reviewing a record to determine the propriety of a district court’s denial of a qualified immunity claim does not divest an appellate court of its jurisdiction.
We next address Ryan’s assertion that we lack jurisdiction because Fauver and Call raise issues that are not appeal-able. Ryan correctly states that we cannot review issues that pertain to liability on this appeal because the district court’s order is “final” only with respect to the collateral issue of qualified immunity. See Brown v. United States, 851 F.2d 615, 619 (3d Cir.1988). The flaw in his argument is his apparent assumption that our power of review is dependent upon the proper framing of issues on appeal. We have jurisdiction to review the district court’s order under 28 U.S.C.A. § 1291 to the extent that it is final. The court’s order is “final” and immediately reviewable under Mitchell if Fauver and Call properly raised a claim of qualified immunity in the district court. See supra note 6; Chinchello v. Fenton, 805 F.2d 126, 130 (3d Cir.1986); see also Musso v. Hourigan, 836 F.2d 736, 741 (2d Cir.1988) (appellate review appropriate when district court denies motion for summary judgment without addressing proffered qualified immunity defense). Because they did so, we have jurisdiction to review the district court’s order with respect to the question of qualified immunity.
Having resolved these challenges to our jurisdiction, we next examine Ryan’s claim that Fauver and Call are improperly attempting to obtain review on appeal of issues beyond the scope of qualified immunity. In support of their challenge to the district court’s denial of their qualified immunity claim, Fauver and Call assert that they had no knowledge of the specific conditions alleged to be unlawful or of the dangerous propensities of Scott, that they took no action which violated any clearly established right and that they were entitled to rely on county officials to run the Burlington County Jail in a lawful manner. Ryan characterizes these arguments as a form of “I didn’t do it” defense, which we have noted might not be cognizable on appeal from a denial of summary judgment. See Chinchello, 805 F.2d at 131.
As we understand Fauver and Call’s arguments, however, they are not merely'attempts to show that Fauver and Call did not engage in the alleged violations of Ryan’s constitutional rights. They fairly can be described as assertions that (1) Fauver and Call owed Ryan no clearly established duty to take affirmative action to ensure that his constitutional rights were not violated by others and (2) given the information they had, a reasonable official would not have known he was violating Ryan’s constitutional rights. Fauver and Call are entitled to review of these arguments before trial. See Anderson, 107 S.Ct. at 3039 & n. 2; Chinchello, 805 F.2d at 131-32.
III.
The question before us on the merits of Fauver and Call’s qualified immunity claim is whether reasonable officials in their positions, with the information then available to them, should have known that their actions or omissions violated clearly established law. See Anderson, 107 S.Ct. at 3040; Lee v. Mihalich, 847 F.2d 66 (3d Cir.1988). Our review of the legal questions presented on appeal is plenary. Brown, 851 F.2d at 617; Hynson v. City of Chester, 827 F.2d 932, 934 (3d Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 702, 98 L.Ed.2d 653 (1988).
Ryan alleges that Fauver and Call violated his liberty interest in personal security and freedom from excessive overcrowding by placing state inmates in the Burlington County Jail despite county officials’ stated inability to maintain constitutionally adequate conditions in the presence of this added overcrowding. There is substantial support for the district court’s determination that the right of a pretrial detainee to be housed separately from a convicted felon or an inmate known to be dangerous was clearly established in October, 1983. See, e.g., Youngberg v. Romeo, 457 U.S. 307, 315, 102 S.Ct. 2452, 2457, 73 L.Ed.2d 28 (1982) (right to personal security is substantive liberty interest); Bell v. Wolfish, 441 U.S. 520, 535-36, 99 S.Ct. 1861, 1871-72, 60 L.Ed.2d 447 (1979) (pretrial detainee's right to be free from punishment prior to an adjudication of guilt); Stokes v. Delcambre, 710 F.2d 1120, 1124 (5th Cir.1983) (pretrial detainee’s right to be protected from injury clear since 1979); Jones v. Diamond, 636 F.2d 1364 (5th Cir.) (en banc) (excessive overcrowding and attendant deterioration in living conditions constitutes punishment of pretrial detainees; confining pretrial detainees indiscriminately with convicted persons is constitutional violation unless necessary to maintain security or physical facilities do not permit their separation), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981), overruled in part on other grounds, International Woodworkers of America Local No. 5-376 v. Champion Int’l Corp., 790 F.2d 1174, 1175 (5th Cir.1986) (en banc); Curtis v. Everette, 489 F.2d 516 (3d Cir.1973) (prisoner’s liberty interest in personal security), cert. denied, 416 U.S. 995, 94 S.Ct. 2409, 40 L.Ed.2d 774 (1974).
Fauver and Call propose alternative grounds for their immunity from suit. First, they claim that as a matter of law they are immune because they were not responsible for the day-to-day administration of the Burlington County Jail and cannot be held accountable for the actions of those who were so charged. They also contend that under the circumstances of this case, they lacked sufficient knowledge of conditions at the county jail to have known that their actions violated clearly established law.
While resolution of the question of an official’s qualified immunity often turns on whether plaintiff has shown a clearly established right, it may also depend upon the complementary question whether defendant had a clearly established duty towards plaintiff. See Hynson, 827 F.2d at 935; Chinchello, 805 F.2d at 131-32. Fau-ver and Call contend that they had no affirmative duty to ensure that Ryan’s rights were not violated by others under Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976), as explained by this court in Chinchello. They also contend that they have no direct authority over county officials, and that county officials alone are responsible for the care, custody and control of inmates in county jails. See, e.g., N.J.Stat.Ann. §§ 30:1-16, :8-17, :8-19, :8-57 (West 1981); MacNeil v. Klein, 141 N.J. Super. 394, 358 A.2d 488 (App.Div.) (prison administrators, not county officials, were appropriate codefendants in plaintiffs’ civil rights action), cert. denied, 72 N.J. 455, 371 A.2d 60 (1976).
In making these arguments, Fauver and Call misread the district court’s opinion and ignore the import of Executive Order No. 106, signed by then Governor Byrne in June of 1981. That order acknowledges that penal and correctional institutions in New Jersey are “seriously overcrowded” and that “there is a need to efficiently allocate inmates of state and county penal and correctional institutions to those institutions having available space in order to alleviate overcrowding.” App. at 47a. It declares a state of emergency in these state and county facilities and directs the following:
3. I hereby DIRECT that the authority to designate the place of confinement of all inmates confined in all State and County penal or correctional institutions shall be exercised for the duration of this Order by the designee of the Governor.
4. I hereby designate the Commissioner of the Department of Corrections to effectuate the provisions of this Order.
5. The Commissioner may designate as a place of confinement any available, suitable, and appropriate institution or facility, whether owned by the State, a County, or any political subdivision of this State, or any other person, for the confinement of inmates confined in the State and/or County penal or correctional institutions.
6.When it appears to the satisfaction of the Commissioner that an inmate should be transferred to a penal or correctional institution or facility of the State or the various Counties more appropriate for his needs and welfare, or that of other inmates, or the security of the institution in which he has been confined, he shall be authorized and empowered to designate the place of confinement to which the inmate shall be transferred.
8. I further ORDER that the authority of the Commissioner to designate the place of confinement of any inmate may be exercised when deemed appropriate by the Commissioner regardless of whether said inmate has been sentenced or is being held in pretrial detention except that only persons sentenced to a prison or committed to the custody of the Commissioner may be confined in a State Prison.
9. The Commissioner of the Department of Corrections shall have full authority to adopt such rules, regulations, orders and directives as he shall deem necessary to effect the above provisions.
Id. at 48a-50a. Executive Order No. 106 was held valid by the New Jersey Supreme Court. Worthington v. Fauver, 88 N.J. 183, 440 A.2d 1128 (1982). It was continued by Governor Byrne and by Governor Kean through the date of Ryan’s injury, October 3, 1983.
The district court acknowledged that Fauver and Call were not explicitly charged with the day-to-day administration of the Burlington County Jail, but held that this did not absolve them of responsibility for county facilities in their implementation of Executive Order No. 106:
[I]t is absolutely clear that the overriding purpose of Executive Order No. 106 was to create a central authority for all penal institutions in the state. On its face, Executive Order No. 106 referred to the overcrowding problems of both the state and the county facilities and found that “there is a need to efficiently allocate inmates of state and county penal and correctional institutions to those institutions having available space in order to alleviate overcrowding----” To effectuate this goal, Executive Order No. 106 granted Fauver the authority and power to transfer prisoners from county to county, county to state, and state to county. Call, of course, had the authority to set the number of beds.
Ryan v. Burlington County, 674 F.Supp. 464, 480 (D.N.J.1987).
Whether Fauver and Call had a duty towards convicted inmates and pretrial detainees in county facilities under New Jersey law prior to Executive Order No. 106 is irrelevant. Fauver and Call were given authority under Executive Order No. 106 to coordinate housing between state and county facilities and thus to take actions that affected conditions in county facilities. Having exercised their authority, they had to show that their actions were objectively reasonable. Holding them to that objective standard for immunity purposes does not charge them with day-to-day administration of the Burlington County Jail. We reject their argument that they are immune from suit on this basis.
We therefore return to our original formulation of the question on appeal: whether officials in Fauver’s and Call’s positions in October, 1983 could reasonably have thought that their actions taken with respect to the Burlington County Jail in the implementation of Executive Order No. 106 were lawful, in light of clearly established law and the information Fauver and Call possessed. We will examine only that information which is relevant to the collateral issue of qualified immunity; disputes over facts that concern liability are not material to our review of the denial of a motion for summary judgment based on claimed qualified immunity. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
Fauver and Call do not argue that Ryan’s constitutional right to personal security was not clearly established in 1983, nor do they disagree with the district court’s conclusion that the right to personal security includes the right of a pretrial detainee to be housed separately from convicted inmates who are known to be dangerous, unless physical facilities do not permit their separation. See Ryan, 674 F.Supp. at 478. Fauver and Call do contend that they should be immune from suit because they had no knowledge of the specific conditions at the jail alleged to be unlawful or of Scott’s alleged dangerous propensities. On this appeal we do not reach the question of Fauver and Call’s lack of knowledge regarding Scott and his violent propensities. The issue before us is whether their failure to take steps to institute a system designed to permit the separation of pretrial detainees from felons, given the information they had, defeats their claim of qualified immunity. Their argument that they did not know about Scott’s record of violence may be relevant on the issue of whether they caused Ryan’s injuries. The district court’s order is interlocutory with respect to its denial of summary judgment on the question of causation.
Fauver and Call’s suggestion that they did not have sufficient information to have known, under the “reasonable official” standard, that their actions would violate Ryan’s constitutional rights is not supported by the record. They do not (and could not, on this record) claim to have been unaware of the fact that the county jail was overcrowded. After the issuance of Executive Order No. 106, Call continued to monitor county intake of state-sentenced prisoners and also sat as chairman of the classification committee for the assignment of inmates to county facilities throughout the state. App. at 862a. He communicated with Burlington County Jail personnel on a weekly basis. Id. at 859a-60a. When asked what program he developed for the intake of state prisoners at the Burlington County Jail, Call responded:
A. I based the quotas that I gave to the county on a weekly basis on telephone communications with practically all of the counties, and with my experience and knowledge from our conversations I determined those counties which I felt needed any help, could have been on a special basis such as escape risks or serious offenses, many times medical. We made exceptions for that type but through my conversations I tried to assess the need for all — you know, for the counties and with what I had available, the bed spaces I had available I issued certain quotas until I kept them all filled.
Q. Other than the telephone conversations with people from the county jails and other than knowing what openings there were in the state institutional system did you rely upon any other information or input to decide what quotas you assigned to what counties on any given week?
A. I relied on any information that would have been brought to my attention by any other staff including county services or any staff that may have been in the county jails to perform other functions. If they had information for me I tried to put it all in the mix and tried to evaluate where I felt the need was the most eminent [sic].
Id. at 862a-63a. Call also testified that he knew the Burlington County Jail and others were overcrowded. Id. at 865a-66a.
On November 24, 1981, Assistant Burlington County Solicitor Hogan wrote to Fauver regarding the state inmate population at the county jail:
I am writing to you on behalf of the Board of Chosen Freeholders of the County of Burlington concerning our Jail inmate population at our Grant Street facility in Mount Holly, New Jersey. As you may know, Burlington County is under a Federal Court Order which in part directs that the inmate population be reduced over a period of time to 117 inmates. At the time of the Order, the inmate population was averaging between 125 and 135 inmates and the 117 goal seemed feasible.
Our state prison holdovers at that time were negligible. However, since the entry of the Federal Order, our inmate population has soared to a point that it is running at approximately 170 inmates on an average day. Also state prison holdovers now average 20 to 22 persons of that population.
Burlington County is earnestly trying to comply with the Federal Order. I would like to request that the Department of Corrections assist in this task by expediting the removal of state prisoners from our facility. Since the state prison population has risen so drastically in the last month, the potential of a major disaster in the prison has also increased. The Burlington County Jail is not a maximum security facility and does not have the proper physical plant to maintain this large number of state inmates.
We are aware of the Governor’s executive order and the statewide overcrowding emergency. The Freeholders believe that the Federal Order cannot be ignored however and that the Department of Corrections should do everything possible in conjunction with the efforts of the County to lower this population. By the state expediting the removal of state inmates, there will be considerable relief of our high prison population____ It is obvious that the natural result of these efforts will be to alleviate what is fast becoming a dangerous overcrowding situation.
Id. at 275a-76a. Fauver sent Call a copy of his response to Hogan’s letter, which acknowledged “the Federal Court Order under which [Burlington County was] operating and your request that we expedite the removal of approximately 22 State-sentenced inmates who are contributing to the overcrowding at the Burlington County Jail.” Id. at 277a, 869a. Fauver offered assistance “on at least a piecemeal basis.” Id. at 277a.
Hogan wrote to Fauver on November 23, 1982, again citing the limitations of the county jail’s physical plant and stating that a reduction in the jail population would bring the jail within constitutional standards. Id. at 279a-80a. In addition, the County Jail Inspection Reports for the years 1980 through 1983 note various deficiencies in the Burlington County Jail physical plant and state that the limited facilities at the Burlington County Jail preclude the possibility of effective classification with regard to inmate housing assignments. Id. at 217a-73a. In litigation to which Fauver was a party, this court indicated that removal of state prisoners would be required as a constitutional remedy if conditions in a county jail which housed state inmates pursuant to Executive Order No. 106 could not otherwise be rendered constitutional. Union County Jail Inmates v. Di Buono, 713 F.2d 984, 1002 (3d Cir.1983), cert. denied, 465 U.S. 1102, 104 S.Ct. 1600, 80 L.Ed.2d 130 (1984).
Although the cases cited earlier with respect to the rights of inmates, with the exception of Union County, do not involve officials in the precise positions held by Fauver and Call, the standard to which we look in determining the clarity of the constitutional right allegedly violated by an official states that the contours of that right “must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 107 S.Ct. at 3039. This does not mean, however, that an official will be protected from suit “unless the very action in question has previously been held unlawful”; rather, the unlawfulness must be “apparent” in light of existing law. Id. This standard requires “some but not precise factual correspondence” between relevant precedents and the conduct at issue. People of Three Mile Island v. Nuclear Regulatory Comm’rs, 747 F.2d 139, 144 (3d Cir.1984). “Although officials need not ‘predic[t] the future course of constitutional law/ they are required to relate established law to analogous factual settings.” Id. (citations omitted). On this record, the contours of Ryan’s rights were clear.
Considering the information available to Fauver and Call, no official of their stature could reasonably have thought that continuing to place state inmates in the Burlington County Jail with no more than an ad hoc system for their removal was lawful. Whether Fauver and Call are liable under § 1983 for the injury sustained by Ryan is an issue for trial. At that time, Fauver and Call may raise their claim that they lacked any information about Scott, a question that we cannot resolve on this appeal because it is germane to the merits of Ryan’s § 1983 claim rather than the issue of qualified immunity now before us.
IV.
For the foregoing reasons, we will deny Ryan’s motion to dismiss this appeal and will affirm the order of the district court denying summary judgment on the grounds of qualified immunity. We will remand this case for further proceedings consistent with this opinion.
. Vespa v. Board of Freeholders of Burlington County, Civ. No. 77-0765 (D.N.J. April 20, 1977) and Morrison v. Brennan, Civ. No. 78-0628 (D.N.J. March 28, 1978).
. On May 13, 1981, the Board of Chosen Freeholders, by resolution, assumed jurisdiction of the Burlington County Jail from the county sheriff, in part to effectuate the settlement of this litigation. App. at 274a. The Honorable Dickinson R. Debevoise approved the Settlement Agreement on June 1, 1981. Id. at 376a-78a.
. With respect to classification, the settlement agreement further provided:
38. Effective upon the completion of the [inmate reception area], inmates shall, upon admission, be held separately from the general population for the period required for completion of the procedures outlined in paragraph 39.
39. Effective ninety (90) days from the date of this Order, all inmates shall be reviewed within sixty (60) hours of admission to determine their appropriate living area, degree of observation, medical, social and psychological services, and their eligibility for work assignments. Classification and re-classification decisions shall be made by a team including a correctional officer of the rank of Sergeant or above, a member of the psychological and social services staff, and a member of the medical staff. Each inmate shall be advised in writing of a classification or re-classification decision and of his right to request in writing to the classification team a change of any aspect of his classification. The classification team shall render its determination as to each request for re-classification from any inmate within seventy-two (72) hours.
App. at 367a.
.The Settlement Agreement limited the number of inmates in this cell to 8. App. at 355a.
. Ryan also asserted several state law claims, over which the district court exercised pendent jurisdiction.
. For the reasons set forth infra at 1206-09, Fauver and Call failed on this record to show that they are entitled to summary judgment as a matter of law on the issue of qualified immunity. We are not faced on this appeal with the question of whether Mitchell gives us appellate jurisdiction over an order denying an official’s motion to dismiss for qualified immunity when the record poses genuinely disputed factual issues material to the application of the Anderson standard.
. We note the tension that exists between the Supreme Court’s recent directives on the "merits” of qualified immunity claims and the genesis of its decision in Mitchell on the appealability of orders involving qualified immunity claims. Mitchell is based on the collateral order rationale set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The issues involved in considering the merits of qualified immunity claims are frequently difficult to separate from the issues involved in the merits of the liability question. The application of Anderson’s qualified immunity standard is not likely to reduce that entanglement.
. In Chinchello, we stated:
It well may be that an appellate court lacks jurisdiction to review a denial of a motion for summary judgment when a public official, although he has invoked the doctrine of qualified immunity, has attempted to show only that he did not engage in the conduct of which plaintiff complains.
805 F.2d at 131. Since Chinchello, we have explained that, although we have jurisdiction to review a denial of summary judgment premised on an "I didn’t do it” defense, we will not recognize such a defense if it merely refutes plaintiffs case-in-chief. See Stoneking v. Bradford Area School Dist., 856 F.2d 594, 603-04 (3d Cir.1988); cf. Brown, 851 F.2d at 616-17, 620 (distinguishing question of court’s appellate jurisdiction and questions appropriate for review).
After Anderson, some forms of this defense, beyond the "absence of clearly established duty” argument we recognized in Chinchello, may fall within Mitchell parameters. We need not and do not decide this issue here. If the actions alleged by plaintiff are not actions that a reasonable official could have believed lawful, and if defendant claims he took different actions, which are actions that a reasonable official could have believed lawful, “then discovery may be necessary before [defendant’s] motion for summary judgment on qualified immunity grounds can be resolved.” 107 S.Ct. at 3042 n. 6. This language demonstrates that raising an “I didn’t do [what plaintiff says I did]” defense does not necessarily warrant a denial of summary judgment on the ground that it interjects into the case a material dispute of fact requiring resolution at trial.
. To the extent that these arguments raise issues that go to the merits of Ryan’s § 1983 claim, we do not reach them on this appeal. See infra typescript at 1206-07, 1209. We note that the burden of establishing qualified immunity is on the defendant official, but the burden of estab-Iishing duty and causation on the merits is on the plaintiff. If an official establishes the former, he escapes
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
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songer_crossapp
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
UNDERWRITERS AT LLOYD’S and Orion Insurance Co., Ltd., et al., Appellants, v. R. H. NICHOLS et al., Appellees.
No. 18313.
United States Court of Appeals Eighth Circuit.
June 30, 1966.
R. A. Eilbott, of Reinberger, Eilbott, Smith & Staten, Pine Bluff, Ark., for appellants. Reinberger, Eilbott, Smith & Staten, Pine Bluff, Ark., was on the brief.
William S. Arnold, of Arnold & Hamilton, Hamburg, Ark., submitted brief for appellees, Nichols, Cotton, Selby and Montrose Gin Co., without oral argument.
Before VOGEL, Chief Judge, MEHAFFY, Circuit Judge, and Mc-MANUS, District Judge.
VOGEL, Chief Judge.
The sole issue involved in this appeal is whether the District Court erred in determining that it did not have jurisdiction over the subject matter of the complaint for interpleader filed in this case. The complaint was dismissed with prejudice by the District Court. We reverse.
Plaintiffs-appellants, all British insurance companies, issued certain policies of liability insurance to one Roy H. Sheffield, Jr., doing business as Dixie Flyers, which policies purported to indemnify Sheffield against liability from crop spraying operations which he carried on in the State of Arkansas. Appellants alleged that for the policy period beginning June 22, 1965, and ending on June 22, 1966, the aggregate coverage provided to Sheffield by them was $20,-000 subject to a $750 deductible for each and every property damage claim entered against Sheffield.
During the policy period, Dixie Flyers, through its employees, caused certain rice crops, on several occasions, to be sprayed with an herbicide which was dangerous to broad-leafed plants, including cotton. It is claimed that some of the herbicide fell or drifted onto cotton crops growing in fields adjacent to or in the vicinity of the rice fields that were sprayed. The growing cotton was allegedly damaged as a result. Because of the spraying operations, as found by the District Court,
“ * * * About 18 claims of cotton farmers for damages have been or will be made against Sheffield; the total claims are expected to amount to more than $50,000.”
At the time of the filing of the instant cause of action two separate suits had already been commenced against Sheffield in the state courts of Arkansas because of the alleged damages caused by Sheffield’s crop spraying activities. The aggregate of the amounts demanded in those two suits exceed $25,000.
The actual and potential claimants for damages from Sheffield, all citizens of Arkansas, are defendants-appellees herein. Further defendants-appellees include Sheffield, Sheffield’s employees and the owners of the rice lands to which the offending herbicide was applied.
Appellants sought to determine their liability, if any, on all claims and potential claims arising out of the crop spraying incidents by tendering $20,000, the alleged amount of their insurance liability to Sheffield, into the registry of the District Court and by attempting to proceed in an interpleader action under Rule 22 of the Federal Rules of Civil Procedure, 28 U.S.C.A. Appellants, desiring to compel the litigation of all claims against Sheffield in this single action, also sought to enjoin the further prosecution of the two pending Arkansas state court suits and the initiation of additional state court actions. Appellants deny any liability on the part of Sheffield to the cotton growers and, alternatively, allege that if there was liability in excess of the policy coverages, that recovery should be prorated among the successful claimants from the $20,000 tendered into court.
It is obvious that without the intervention of the appellants there would not be the requisite diversity of citizenship needed for federal court jurisdiction. Sheffield, all claimants and the other appellees are clearly citizens of Arkansas. It is also apparent that appellants would have no standing in the Arkansas state courts to assert their policy limitation defense until after individual judgments had been rendered against Sheffield exceeding the $20,000 policy limits, since Arkansas has no direct action statute — i. e., a statute giving an injured party the right to proceed directly against the alleged tort feasor’s insurance company. Only where there is an unsatisfied judgment can the injured party proceed against the insurance company. Ark. Stat. Ann. §§ 66-4001, 66-4002 (1966 Replacement). Appellants fear that unless all claims are disposed of in this one federal action, they will perhaps be required to pay sums in excess of policy limits. Appellants’ reasoning is that after paying off initial successful claimants from the state courts and exhausting the available funds under the policy, they could possibly still be forced to pay later successful claimants on the theory that they, appellants, should have prorated the available funds among all claimants. Appellees do not dispute appellants’ assertion that it is an open question under Arkansas law as to whether such additional liability would ensue when there are multiple claims growing out of the same coverage.
The District Court, in denying appellants’ application for a preliminary injunction and in dismissing appellants’ claims with prejudice, held that the court did not have jurisdiction over the instant dispute under Rule 22, set out at fn.n. 1, supra, there being unliquidated tort claims involved. Since the claims were unliquidated, the lower court felt appellants were in no immediate danger of facing multiple liability so as to make Rule 22 applicable. This appeal followed.
Under interpleader, as most simply defined at 48 C.J.S. Interpleader § 2, p. 38 (1947), one
“ * * * who owes or is in possession of money or property in which he disclaims any title or interest but which is claimed by two or more persons, prays that the claimants be compelled to state their several claims, so that the court may adjudge to whom the matter or thing in controversy belongs. The office or function of the remedy is to protect one against conflicting claims and double vexation with respect to one liability.”
It might be beneficial at this point to briefly summarize the federal law of in-terpleader as it has developed over the past fifty years. On this subject see generally 2 Barron and Holtzoff, Federal Practice and Procedure, §§ 551 et seq. (Rev. Ed., 1961); 3 Moore’s Federal Practice, par. 22.01 et seq. (2d Ed., 1964); 6 Nichols, et al., Cyclopedia of Federal Procedure, §§ 22.01 et seq. (3d Ed., 1951); and the excellent series of articles written by Professor Zechariah Chaffee, Jr. See, also, the scholarly discussion of the law of interpleader by then District Judge J. Skelly Wright in Pan American Fire & Cas. Co. v. Revere, E.D.La., 1960, 188 F.Supp. 474
Interpleader first originated in the old common law of interpleader but the primary development and principles of in-terpleader occurred in equity where the use of interpleader was most common. As the late Judge John Sanborn stated for this court in Klaber v. Maryland Cas. Co., 8 Cir., 1934, 69 F.2d 934, 936-937, 106 A.L.R. 617:
“The essential elements of the equitable remedy of interpleader are: (1) The same thing, debt, or duty must be claimed by both or all the parties against whom the relief is demanded. (2) All their adverse titles or claims must be dependent, or be derived from a common source. (3) The plaintiff must not have nor claim any interest in the subject-matter. (4) He must have incurred no independent liability to either of the claimants and must stand perfectly indifferent between them, in the position merely of a stakeholder. Pomeroy’s Equity Jurisprudence (4th Ed.) vol. 4, § 1322; Wells, Fargo & Co. v. Miner (C.C.) 25 F. 533. See, also, Calloway v. Miles (C.C.A. 6) 30 F.(2d) 14; Connecticut General Life Ins. Co. v. Yaw (D.C.) 53 F.(2d) 684.”
These requisites, often given lipservice by the courts but frequently avoided as such, hampered the utility of the inter-pleader device.
Beginning in 1917 the United States Congress enacted the first of a series of interpleader acts. 39 Stat. 929 (1917). The initial act was amended in 1925 and was repealed and replaced in 1926. 44 Stat. 416 (1926). In 1936 a new in-terpleader act was passed. 49 Stat. 1096 (1936). The 1936 act was last amended in 1948 by the Judicial Code and Judiciary Act at the time when 28 U.S.C. was enacted into positive law. 62 Stat. 869 (1948). The act now appears in 28 U.S. C. §§ 1335, 1397 and 2361. These different acts varied from each other in certain respects but the culmination of these acts “ * * * extended the jurisdiction of the federal courts with respect to interpleader actions.” 2 Barron and Holtzoff, supra, § 551, at p. 229. In certain respects the 1926 act was narrower than the earlier 1917 act and later acts, but discussion of this point will be deferred until relevant, infra. It is not necessary to set out the full text of these acts since they are only collaterally relevant to this appeal.
Rule 22 of the Federal Rules of Civil Procedure, 28 U.S.C.A., set out at f.n. 1, supra, was promulgated in 1937 and stands as promulgated except that sub-paragraph (2) was amended, effective October 20, 1949, to reflect the passage of Title 28 U.S.C. into positive law. Professor Moore, in his treatise, notes that Rule 22 “ * * * provides the most modern and liberal method of obtaining interpleader to be found.” 3 Moore, supra, par. 22.04 at p. 3007. By its own terms Rule 22 is intended to be “in addition to” statutory interpleader “and in no way supersedes or limits” remedies provided under statutory interpleader.
As already noted, the instant case arises under Rule 22 rather than under the 1948 statutory interpleader act. The 1948 act requires as a jurisdictional prerequisite “Two or more adverse claimants, of diverse citizenship”, 28 U.S.C. § 1335(a) (1). Herein all actual and potential claimants are from Arkansas, defeating jurisdiction of the instant controversy under the 1948 act. However, Rule 22 raises no jurisdictional problems in this regard. Since the interpleader acts and Rule 22 are so similar in construction, case precedents arising under the various acts are certainly relevant to the instant dispute and will be discussed herein.
Appellees rely on the case of Klaber v. Maryland Cas. Co., supra, as primary support for their proposition that Rule 22 is inapplicable herein. However, Klaber was decided under the 1926 interpleader act and for this reason the result therein is not necessarily binding under Rule 22. In Klaber this court refused to allow an interpleader proceeding which arose out of an automobile accident. Therein the insurance company involved attempted to join all potential claimants to determine its liability under the policy at issue. It was alleged by the company that the claims against its insured would exceed policy limits. At the time of the initiation of the interpleader action Klaber was the only injured party who had obtained a judgment against the insured. Klaber’s recovery did not exceed the policy limits.
In Klaber this court stated, at page 939 of 69 F.2d:
“If the bill before us showed that the defendants other than Klaber were bona fide adverse claimants against the company within the meaning of the Interpleader Act, and that the company was a disinterested stakeholder, we would be inclined to hold that it might maintain this suit under the act. * * *
******
“We are convinced, however, that, under the allegations of the bill, Kla-ber was the only defendant who was an actual claimant, and that the other defendants are persons who may become claimants depending upon whether they succeed in procuring judgments against the assured or whether they do not.
******
“Our conclusion is that the bill is not one which comes within the Inter-pleader Act, and that the court therefore was clearly without authority to enjoin Klaber from proceeding with his garnishment, and could not compel those defendants who were citizens of states other than Nebraska to inter-plead.”
In Klaber we noted that under the 1917 interpleader act jurisdiction would lie where “ * * * two or more adverse claimants * * * are claiming or may claim to be entitled to such insurance or benefits.” 69 F.2d at 938, citing 39 Stat. 929. (Emphasis supplied.) Very significantly the 1926 act did not contain the above italicized portion of the 1917 act and it was thus of much narrower scope. This was fatal to the insurance company in Klaber, which was faced with only contingent claims except for Klaber’s judgment. Under the 1926 act interpleader could not lie, in effect, until potential tort claims had been liquidated to an extent whereby the value of such claims exceeded the available fund involved. Significantly, Rule 22, quoted in detail at f.n. 1, supra, applicable in this ease, is similar to the 1917 act and much broader than the 1926 act in that interpleader will lie when potential “ * * * ciaims are such that the plaintiff is or may be exposed to double or multiple liability.” Rule 22, Federal Rules of Civil Procedure, 28 U.S.C.A. (Emphasis supplied.) Thus it is clear from the language of Rule 22 that it is of greater applicability than the 1926 act under which Klaber arose. The insur-anee company in Klaber could have possibly saved its action under the wording of either Rule 22 or the 1917 act. Rule 22 arguably provides for interpleader jurisdiction even though potential tort claims, clearly recognizable though not yet liquidated, against the stakeholder have not been conclusively established. See, A/S Krediit Pank v. Chase Manhattan Bank, S.D.N.Y., 1957, 155 F.Supp. 30, 33-34, aff’d, 2 Cir., 1962, 303 F.2d 648, a case discussing the 1917 and 1926 interpleader acts and Klaber as they relate to the interpleader codification in the Judicial Code and Judiciary Act of 1948, supra, and Rule 22. The 1948 act restored the “may claim” clause of the 1917 act.
In discussing the Klaber precedent and its applicability under the 1948 act and Rule 22, Professor Moore makes the following observations in 3 Moore, supra, par. 22.08 [1] at pp. 3024-3025:
“ * * * The circuit court of appeals dismissed the bill [for inter-pleader] on the grounds: (1) that complainant was an interested party inasmuch as it sought in other actions to defeat or diminish claims of injured persons that were being sued on in actions against the insured [on this point see footnote 5, infra]; and (2) that there was only one actual claimant against the surety company, namely, Klaber. The first ground for dismissal is probably obviated by the 1936 and 1948 Acts, which expressly authorize suits in the nature of inter-pleader. The second ground for dismissal seems sound under the 1936 Act, inasmuch as there was no ‘may claim’ clause in that Act. The omission of the ‘may claim’ clause made statutory interpleader more restrictive and hence less practical than non-statutory interpleader under paragraph (1) of Rule 22. It is, therefore, not surprising to find some judicial reluctance to deny relief where the possibility of multiple claimants was manifested.” [Original footnote citations omitted.]
See, also, Chaffee, Federal Interpleader Act of 1936:11, 45 Yale L.J. 1161, 1163-1167. Professor Moore would seem to be eminently correct in his conclusions.
The court below did not accept appellees’ position herein and base its decision on Klaber, stating that because of
“The liberalization of federal inter-pleader jurisdiction and practice effected by the promulgation of Rule 22, effective in 1938, and by the rewriting of the Federal Interpleader Act in connection with the overall revision of the Judicial Code in 1948, * * *
******
“ * * * the Court recognizes that the decision of the Court of Appeals for this Circuit in Klaber v. Maryland Casualty Co., 8 Cir., 69 F.2d 934, which the Court at one time felt tentatively was a bar to the granting of the relief here sought, cannot be considered as such.”
The court also discounted the precedent of American Indemnity Co. v. Hale, W.D. Mo., 1947, 71 F.Supp. 529, on the grounds that the judge in Hale was relying on Klaber. In spite of this determination, however, the court below held:
“It may be conceded that both the Act and Rule 22 are to be construed liberally. It may be conceded also that in instances the statute and the Rule give a choice of forum to an interpleader and may permit the litigation in federal courts of cases which would not be heard there ordinarily. The Court does not believe, however, that federal interpleader jurisdiction extends so far as to cover a situation where, as here, the claims with which a liability insurer is faced are not only potential but are also doubly contingent. As of this time the liability of plaintiffs to the cotton farmers is secondary, and is contingent, first, upon the liability of Sheffield being established, and, second, upon it developing that he is not financially able to satisfy judgments against him or to reduce them to an aggregate sum within plaintiffs’ policy limits. From what has been said, it follows that the complaint must be dismissed.”
In arriving at its decision the trial court discredited a contrary decision in Pan American Fire & Cas. Co. v. Revere, supra, where interpleader jurisdiction was found to exist. The Revere decision was accepted and followed in Commercial Union Ins. Co. v. Adams, S.D.Ind., 1964, 231 F.Supp. 860, 863-864. Revere arose in Louisiana and involved a discussion of both Rule 22 and the 1948 interpleader act, although Rule 22 was ultimately held not to be available therein because of certain venue and service problems not present herein. However, Judge Wright very thoroughly delved into and discussed Rule 22 and its various ramifications. The court below refused to follow Revere since “Arkansas has no direct action statute comparable to that of Louisiana”, meaning that potential claims against appellants herein are doubly contingent, depending ultimately upon Sheffield’s liability and his inability to financially meet all claims recovered by various appellees against him. With a direct action statute, of course, an insurer would be subject to suit immediately rather than having suit deferred until after a judgment had been rendered against its insured and returned unsatisfied. In the latter situation the chances of suit being brought against an insurer are allegedly more remote.
We do not feel that the use of inter-pleader should or does depend upon the existence or absence of a direct action statute. As aptly noted by Judge Wright in the Revere case, at page 480 of 188 F.Supp.:
“But the requirement [of Rule 22 of exposure to multiple liability as a prerequisite for interpleader] is not a strict one. Nor could it be as part of a Rule that is said to provide ‘the most modern and liberal method of obtaining interpleader to be found.’ [3 Moore, supra, at par. 22.04 [1], p. 3007.] The key to the clause requiring exposure to ‘double or multiple liability’ is in the words ‘may be.’ The danger need not be immediate; any possibility of having to pay more than is justly due, no matter how improbable or remote, will suffice. At least, it is settled that an insurer with limited contractual liability who faces claims in excess of his policy limits is ‘exposed’ within the intendment of Rule 22, [citing this court’s decision in Standard Sur. & Cas. Co. v. Baker, 8 Cir., 1939, 105 F.2d 578] and we need go no further to find the requirement satisfied here.” (Emphasis supplied.)
Judge Wright states further at page 480 of 188 F.Supp.:
“The present law, then, is that the only equitable ground necessary for interpleader, whether the plaintiff is a disinterested stakeholder or not, is exposure to double or multiple vexation. But, of course, this does not mean that every person threatened with a multiplicity of suits is entitled to interplead. The function of inter-pleader is to rescue a debtor from undue harassment when there are several claims made against the same fund.”
In the Revere case Judge Wright does state at pages 482-483 of 188 F.Supp.:
“ * * * But, in any event, prematurity [i. e., in seeking interpleader for unliquidated tort claims] is no defense under the peculiar Louisiana law which allows a direct action against the automobile liability insurer.”
A reading of Judge Wright’s entire opinion, however, clearly shows the mention of the Louisiana direct action statute to be surplusage and not necessary to the decision in that case. For example, just prior to the reference to the direct action statute it is stated at page 482 of 188 F.Supp.:
“ * * * Indeed, under the ‘may be exposed’ clause of Rule 22 and the ‘may claim’ clause of the Interpleader Act, it would not seem to matter how remote the danger might be.”
Professor Chaffee, in The Federal Interpleader Act of 1936:11, supra, says at page 1166 of 45 Yale L.J. that:
“ * * * a bill in the nature of in-terpleader should lie even before any judgment. It is sufficient for the court to assure itself that the danger of multiplicity of suits is genuinely present. The seriousness of the accident and the obvious good faith of the victims in seeking damages meet this requirement. The victims are ‘claiming to be entitled to such (insurance) money’ within paragraph (a) (i) of the Act of 1936, at least after they file suits against the assured. It is true that the victims technically have no cause of action against the insurance company until judgment, and only against the assured till then; but substantially they are all seeking the insurance money from the start. The company’s obligation to defend and its limited duty to pay give it a vital interest in every tort action. It is no interloper in asking a unification of the numerous tort actions brought against the assured. Its request benefits the claimants as well as itself. Instead of a haphazard looting of a fund by the first comers, a bill in the nature of interpleader filed before numerous judgments have ripened assures a fair share of the insurance money to each victim and conforms to the principle, ‘Equity is equality.’ ” (Emphasis supplied.)
His remarks, although directed to the 1936 interpleader act, show that the presence or non-presence of a direct action statute certainly is far from conclusive in any interpleader action, including one under Rule 22.
We find unpersuasive the case of National Cas. Co. v. Insurance Co. of North America, N.D.Ohio, 1964, 230 F.Supp. 617, 620, wherein it is stated, without cogent reasons, that the direct action statute was a crucial factor in Revere. In Commercial Union Ins. Co. v. Adams, supra, a case coming out shortly after National Cas. Co., it is noted very simply at page 863 of 231 F.Supp. that Revere clearly stands for the proposition that:
“ * * * interpleader may be resorted to by an insurance carrier when the adverse claims are unliquidated tort claims against its assured.”
See, also, Standard Sur. & Cas. Co. v. Baker, 8 Cir., 1939, 105 F.2d 578. In Adams, no mention is made of the direct action statute involved in Revere. No such statute is present in Adams, yet in-terpleader is permitted therein.
Clearly, then, the existence of a direct action statute is not conclusive as to whether or not interpleader will lie. Herein appellants have already been exposed to two claims totalling over $25,-000 in the Arkansas state courts. Further, the District Court found — conservatively, we think — that appellants will eventually have to face up to at least 16 additional claims and $25,000 of additional potential liability over and above the current amounts being sought in the state courts. Even the existing state court actions would more than exhaust policy coverages if Sheffield should be held liable for the crop spraying damages up to the extent claimed, even without additional claims being brought. Clearly, the liberal interpretation of in-terpleader under Rule 22 should govern in this situation to prevent appellants from facing at worst multiple liability and at best multiple vexation. The facts, as disclosed by the record, belie the District Court’s reasoning that any liabilities of appellants are doubly contingent, depending on ultimate judgments being rendered against an insolvent Sheffield. The threat of multiple liability is very real and imminent and interpleader should lie herein.
The late District Judge Lemley, in Tollett v. Phoenix Assur. Co., W.D.Ark., 1956, 147 F.Supp. 597, 605, spoke of the 1948 interpleader act as follows:
“ * * * The Federal Interpleader Act, 28 U.S.C.A. § 1335, which is a remedial statute and to be liberally construed, was designed not only to protect stakeholders from double or multiple liability but also to protect them from the trouble and expense of double or multiple litigation. Sanders v. Armour Fertilizer Works, 292 U.S. 190, 54 S.Ct. 677, 78 L.Ed. 1206; Metropolitan Life Insurance Co. v. Segaritis, D.C.Pa., 20 F.Supp. 739; Massachusetts Mutual Life Insurance Co. v. Weinress, D.C.Ill., 47 F.Supp. 626; and Mallonee v. Fahey, D.C.Cal., 117 F.Supp. 259.”
His remarks are applicable to the very liberal Rule 22 which is involved herein. See generally the notes of the Advisory Committee on Rules following Rule 22 of the Federal Rules of Civil Procedure, 28 U.S.C.A. We are in accord with the statement of the Third Circuit in B. J. Van Ingen & Co. v. Connolly, 3 Cir., 1955, 225 F.2d 740, 744, when it speaks “ * * of the normal duty of a district court to permit interpleader liberally to relieve parties of the hazards and vexations of conflicting claims against them.” See, also, Bierman v. Marcus, 3 Cir., 1957, 246 F.2d 200, 203, certiorari denied, 356 U.S. 933, 78 S.Ct. 774, 2 L.Ed.2d 762. We hold interpleader to be justified in the present situation.
For reasons set out in this opinion, the judgment of the District Court is reversed and the cause is remanded with directions to reinstate appellants’ complaint.
McMANUS, District Judge, concurs and emphasizes that the result is in keeping with the spirit of the Rules, in particular Rules 2, 20(a) and 22, Federal Rules of Civil Procedure, 28 U.S.C.A., which must be construed in conjunction with 28 U.S.C.A. § 1335.
. Rule 22 provides, in pertinent part:
“(1) Persons having claims against the plaintiff may be joined as defendants and required to interplead when their claims are such that the plaintiff is or may be exposed to double or multiple liability. It is not ground for objection to the joinder that the claims of the several claimants or the titles on which their claims depend do not have a common origin or are not identical but are adverse to and independent of one another, or that the plaintiff avers that he is not liable in whole or in part to any or all of the claimants.
“(2) The remedy herein provided is in addition to and in no way supersedes or limits the remedy provided by Title 28, U.S.C., §§ 1335, 1397, and 2361. Actions under those provisions shall be conducted in accordance with these rules. As amended Dec. 29, 1948, effective Oct. 20, 1949.”
. Professor Chaffee’s articles include the following: Modernizing Interpleader, 30 Yale L.J. 814 (1921) ; Interstate Inter-pleader, 33 Yale L.J. 685 (1924) ; Inter-pleader in the United States Courts, 41 Yale L.J. 1134, 42 Yale L.J. 41 (1932) ; Federal Interpleader Act of 1936, 45 Yale L.J. 953, 1161 (1936) ; Federal Inter-pleader Since the Act of 1936, 49 Yale L.J. 377 (1940) ; Broadening the Second Stage of Interpleader, 56 Harv.L.Rev. 541, 929 (1943).
. Judge Wright now serves on the United States Court of Appeals for the District of Columbia.
. 43 Stat. 976.
. In Klaber we had stated at page 939 of 69 F.2d:
“We are also convinced that the company is not a disinterested stakeholder. It does not aver that it is. The facts pleaded show that it is not. It admits no rights in the defendants other than Klaber to the fund, and no liability of either itself or its assured to them. It occupies a position of active hostility to all defendants except Klaber, and must, if it can, prevent their ever obtaining any claims against the fund. See Stus-ser v. Mutual Union Ins. Co., 127 Wash. 449, 221 P. 331, 333; Pope v. Missouri Pac. Ry. Co. (Mo.Sup.) 175 S.W. 955, 957. Moreover, if it succeeds in defeating their claims against its assured, there will be about $6,000 left in the registry of the court after payment of the Klaber judgment, to which the company alone will have a claim.”
This point is not directly at issue in the instant ease. We do note, however, from an historical standpoint, that in strict common law interpleader the plaintiff had to be a completely disinterested stakeholder. See Klaber v. Maryland Gas. Co., supra, at p. 937 of 69 F.2d. A bill in the nature of interpleader developed to cover the situation w’here a plaintiff seeking interpleader denied any liability (making him at least technically an interested party) yet was willing to tender the entire amount of available money into court and abide by the court’s decision. The 1936 interpleader act was the first to specifically encompass, by its terms, bills in the nature of interpleader. Today 28 U.S.C. § 1335(a) specifically contemplates bills “in the nature of interpleader”. The same is true of Rule 22 whereunder it does not matter that “plaintiff avers that he is not liable in whole or in part to any or all of the claimants.” Interpleader still lies. Thus Klaber’s holding as to interested parties being unable to seek interpleader is no longer the law since Klaber was decided in 1934 prior to the passage of the 1936 act. See, e. g., New York Life Ins. Co. v. Lee, 9 Cir., 1956, 232 F.2d 811, 814; Standard Sur. & Cas. Co. v. Baker, 8 Cir., 1939, 105 F.2d 578, 580; Pan American Fire & Cas. Co. v. Revere, supra, at pages 477-479 of 188 F.Supp.; John Hancock Mut. Life Ins. Co. v. Kegan, D.C.Md., 1938, 22 F.Supp. 326. See, also, 3 Moore, supra, par. 22.07 [1] at pages 3019-3020; Chaffee, The Federal Interpleader Act of 1936: I, 36 Yale L.J. 963, 970-971.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer:
|
songer_genresp1
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
Robert LONBERGER, Petitioner-Appellant, v. Arnold R. JAGO, Superintendent, Southern Ohio Correctional Facility, Respondent-Appellee.
No. 79-3100.
United States Court of Appeals, Sixth Circuit.
Argued April 3, 1980.
Decided Dec. 1, 1980.
Norman G. Zemmelman, Britz & Zemmel-man, Toledo, Ohio (Court-appointed), John Czarnecki, Haywood, Cooper, Straub, Wa-linski & Cramer Co., L.P.A., Toledo, Ohio (Court-appointed), for petitioner-appellant.
William J. Brown, Atty. Gen. of Ohio, Randall G. Burnworth, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellee.
Before LIVELY and BROWN, Circuit Judges, and PECK, Senior Circuit Judge.
JOHN W. PECK, Senior Circuit Judge.
This is an appeal from an order of the United States District Court for the Northern District of Ohio, Western Division, dismissing petitioner’s Motion for a Writ of Habeas Corpus. Petitioner, Robert Lonber-ger, is an Ohio prisoner who was convicted by a jury of aggravated murder with a “specification,” which resulted in the death penalty under Ohio’s sentencing enhancement statute. Subsequently, the Ohio Court of Appeals reversed the conviction of aggravated murder, and reduced the verdict to the lesser included offense of murder. On remand, the trial court sentenced the defendant to fifteen years to life imprisonment.
Petitioner challenges the constitutionality of his Ohio conviction, and we here consider (1) whether it was error for the trial court to allow evidence of a prior conviction of attempted murder to go to the jury at the same time that the jury was deciding petitioner’s guilt or innocence on the substantive charge; and (2) whether the district court erred in holding that petitioner’s guilty plea to a charge of attempted murder, the basis of the “specification,” was knowingly and voluntarily made.
I.
Petitioner was indicted by the Lucas County, Ohio, Grand Jury and charged with murder while committing rape, defined by § 2903.01(B), Ohio Rev.Code, as “aggravated murder.” The indictment further contained a “specification” that petitioner had been previously convicted of attempted murder. The Ohio statutes under which petitioner was tried provided for life imprisonment upon conviction of aggravated murder unless, in addition to the principal offense, one of seven “specifications” listed in O.R.C. § 2929.04 was charged and proved at trial, in which case the defendant could be sentenced to death. O.R.C. § 2929.02 and 2929.03. A prior conviction of attempted murder was one of the “specifications prescribed by the statute. O.R.C. § 2929.04(A)(5).
The evidence adduced at trial on the principal charge revealed that on the night of January 29, 1975, Charita Lanier was brutally murdered. The cause of death was exsanguination resulting from a severe laceration of the neck. A bloodstained and bent twelve-inch knife belonging to the victim was found at the scene and identified as the probable murder weapon. An autopsy performed the following morning revealed the presence of sperm in the vaginal canal. No bruises or external signs of trauma were found with the exception of the fatal laceration of the neck. The State also offered testimony that the petitioner was with the victim in her home the night of her death, and introduced into evidence blood-spotted clothing belonging to the defendant.
The state sought to prove the specification of a prior conviction in addition to proving the substantive charge. To this end, the state introduced into evidence a conviction statement, with the indictment appended, from Cook County, Illinois. These documents indicated that a Robert Lonberger had been convicted of attempted murder in 1972.
Petitioner’s pre-trial motion to dismiss the specification on the ground that his 1972 guilty plea to attempted murder had not been knowingly and voluntarily made was rejected by the trial court. The prosecutor and the trial court also rejected appellant’s offer to stipulate to having committed the prior offense (the stipulation would have kept from the jury the details of the prior offense, including the fact that it too involved an attack upon a woman with a knife). The admission into evidence of the conviction statement was accompanied by an instruction to the jury that it was not to consider the prior conviction in determining the defendant’s guilt or innocence on the substantive charge.
On May 30, 1975, a jury returned a verdict of guilty against the petitioner on the charge of aggravated murder, and it further found him guilty of the specification. Petitioner appealed to the Ohio Court of Appeals, which reversed the verdict of guilty of aggravated murder on the grounds that the State had failed to establish the elements of rape or the identity of the appellant as the offender beyond a reasonable doubt. The Ohio appeals court reduced the verdict to the lesser included offense of murder and remanded the case for sentencing, whereupon defendant was sentenced to fifteen years to life. After exhausting his state court remedies, appellant petitioned the district court for a writ of habeas corpus, which was denied.
II.
Petitioner first charges that the evidence of his prior conviction was not admissible under Ohio law. Alternatively, he argues that a one-stage trial at which evidence of a prior conviction is introduced solely on the issue of punishment violates the Fifth, Sixth and Fourteenth Amendments to the United States Constitution. Petitioner argues that he is entitled, therefore, to á bifurcated trial at which a jury must pass upon the principal offense charged prior to the introduction of any evidence of his previous conviction, which only goes to prove the specification.
With regard to Ohio law, the Ohio Supreme Court rejected the identical argument in State v. Gordon, 28 Ohio St.2d 45, 276 N.E.2d 243 (1971). There the court held that where it is necessary to charge a prior offense in the indictment for purposes of enhanced punishment, as a matter of state law the prior offense becomes an element of the second offense, and, therefore, “[i]t is not reversible error to read to the jury an indictment which contains the averment of a prior conviction or to place such indictment in the jury’s possession during its deliberations [in a single-stage trial]. .. . ”
The Ohio legislature has explicitly required that the specification charged here be alleged in the indictment. We conclude, therefore, on the authority of State v. Gordon, that the admission of petitioner’s prior conviction in a single-stage trial conformed with Ohio’s rules of evidence and criminal procedure.
Petitioner’s constitutional attack on Ohio’s procedure is adequately answered by the Spencer v. Texas, 385 U.S. 544, 87 S.Ct. 48, 17 L.Ed.2d 606 (1967), decision and its progeny. In Spencer v. Texas the Supreme Court declined to hold that the Texas procedure of enforcing its recidivist statutes, a procedure identical to that utilized by Ohio in the instant case, violated the due process clause of the Fourteenth Amendment. The Court there recognized the inherent prejudice of prior crimes evidence, but reasoned that a defendant’s interest in avoiding such prejudice is outweighed by the state’s interest in trying all the issues in a one-stage trial. Following the Spencer v. Texas decision, we stated: “[Combining in one indictment charges of prior offenses together with the immediate charges, reading the entire indictment to the jury and offering proof of such earlier offenses, all before submitting the case to the jury, [is] not a state practice offensive to the proscriptions of the Fourteenth Amendment.” Haggard v. Henderson, 382 F.2d 288, 289 (6th Cir. 1967). See also Evans v. Cowan, 506 F.2d 1248 (6th Cir 1974); Wilson v. Wiman, 386 F.2d 968 (6th Cir. 1967).
Appellant’s attempts to distinguish Spencer v. Texas are not persuasive. He argues, for example, that the Spencer court noted in its opinion that the prior convictions in Texas were made an element of the principal crime under the Texas habitual criminal statutes. Thus, he continues, the legitimate state purpose in introducing evidence of prior crimes in Spencer-type cases is absent here, where the penalty provisions are separate and distinct from the substantive offense. The distinction drawn by petitioner is nowhere to be found in Spencer. To the contrary, the Texas recidivist statutes at issue in Spencer are very similar to the enhanced punishment statute at issue here. Each of the statutes is concerned solely with the enhancement of punishment; none expressly make a prior conviction an element of a substantive offense.
Appellant would fare no better were we to accept his proposed distinction. For the Ohio Supreme Court has held that a prior conviction is a factual element of the substantive crime to be proved where the prior offense has been charged in the indictment under Ohio’s enhanced punishment statutes. State v. Gordon, 28 Ohio St.2d 45, 276 N.E.2d 243 (1971).
Petitioner further argues that the evidence of his previous conviction was particularly inflammatory, an allegation conspicuously absent in Spencer v. Texas. Here the jury was given a copy of the indictment accompanying petitioner’s conviction statement. The indictment charged that the defendant “attempted to kill Dorothy Maxwell by cutting Dorothy Maxwell with a knife.” Thus, the jury was apprised of the fact that the defendant had previously attempted to murder a woman with a knife, a crime strikingly similar to the one for which he was on trial. In Haggard v. Henderson, 382 F.2d 288 (6th Cir. 1967), a Tennessee defendant was found guilty of burglary and larceny in a case in which the prosecution introduced evidence of eight prior convictions for offenses ranging from larceny to attempted murder. The eight prior offenses were offered under the auspices of Tennessee’s habitual criminal statute, which required only three prior convictions to be proved. We reversed the district court’s grant of a writ of habeas corpus, despite the potential for inflaming the jury by the overkill techniques employed by the state, holding that Spencer v. Texas was not “critically distinguishable].” 382 F.2d at 290. One judge noted that absent the Spencer decision, he would have voted to affirm the district court. Id. (Edwards, J., concurring). Were we writing on a clean slate, we might vote to reverse the conviction at bar due to the inflammatory nature of the prior crime evidence, especially in light of petitioner’s offer to stipulate to the previous offense. We are constrained to hold, however, that no violation of defendant’s right to due process occurred in view of Spencer v. Texas and our decision in Haggard v. Henderson.
Appellant also asserts, without elaboration, that the single-stage trial procedure used in Ohio denied him his Fifth Amendment privilege against self-incrimination, and “chilled” his Sixth Amendment right to a jury trial. The former contention was considered and rejected by the Supreme Court in McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), and requires no further comment. Petitioner’s Sixth Amendment argument is that prior crimes evidence may be so prejudicial that a defendant is forced to explore the possibility of pleading guilty to a lesser offense in order to avoid a jury trial and the attendant possible death sentence. The argument assumes that limiting instructions are incapable of mitigating the impact of the disclosure to the jury of the prior conviction. “To say the United States Constitution is infringed simply because this type of evidence may be prejudicial and limiting instructions inadequate to vitiate prejudicial effects, would make inroads into this entire complex code of state criminal evidentiary law, and would threaten other large areas of trial jurisprudence.” Spencer v. Texas, supra, 385 U.S. at 562, 87 S.Ct. 652. The Court there went on to say: “This type of prejudicial effect is acknowledged to inhere in criminal practice, but it is justified on the grounds that (1) the jury is expected to follow instructions in limiting this evidence to its proper function.” Id.
Petitioner’s challenge to Ohio’s single-stage procedure is without merit.
III.
We next address the issue of whether petitioner’s prior conviction was inadmissible because his plea of guilty was involuntary.
An invalid conviction may not be used to enhance sentencing. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). An involuntary plea of guilty renders a conviction based thereon constitutionally invalid. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). A guilty plea will be deemed involuntary unless there is a showing that it was intelligently and knowingly entered-an issue governed by federal standards. Id.
In the instant case, the State offered, as proof of the voluntariness of petitioner’s 1972 plea of guilty to attempted murder in Cook County, Illinois, a conviction statement, and a transcript of the plea’s acceptance.
The conviction statement avers that records of the circuit court of Cook County, Illinois, show that a Robert Lonberger was indicted and charged with “AGGRAVATED BATTERY, ETC.” That document further states that after initially pleading not guilty, Lonberger withdrew his plea, offered to plead guilty, and his offer was accepted after the trial judge explained the consequence of a guilty plea to the defendant. Petitioner stipulated at trial that he was the Robert Lonberger named in the conviction statement.
The indictment was composed of four charges: three counts of “aggravated battery” and one count of “attempt.” With the exception of one of the aggravated battery charges, all of the offenses charged in the indictment were committed against one Dorothy Maxwell, and occurred on the same date. That part of the indictment charging the offense of “attempt” specified that a Robert Lonberger “with intent to commit the offense of murder, intentionally and knowingly attempted to kill Dorothy Maxwell with a knife.” Notwithstanding the conviction statement’s averment that the trial judge explained the consequences of a guilty plea to the defendant, at no time during the hearing at which the guilty plea was entered were the words “murder” or “attempted murder” mentioned by anyone. The transcript of the 1972 Chicago hearing reveals that the following colloquy took place following a conference among the trial judge, the prosecutor and Lonberger’s counsel:
The Court: In other words, you are pleading guilty, that you did on August 25, .1968, commit the offense of aggravated battery on one Dorothy Maxwell, and that you did on the same date attempt on Dorothy Maxwell, with a knife, is that correct?
The Constitution requires, at a minimum, that there be an affirmative showing that a plea of guilty was intelligent and knowing before it is accepted by the trial judge. Boykin v. Alabama, supra, at 242, 89 S.Ct. at 1711.
In Henderson v. Morgan, 426 U.S. 637, 645, 96 S.Ct. 2253, 2257, 49 L.Ed. 108 (1976), the Supreme Court, holding that a defendant must receive “real notice of the true charges against him,” observed:
A plea may be involuntary either because the accused does not understand the nature of the constitutional protection that he is waiving or because he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt. Without adequate notice of the nature of the charge against him, or proof that he in fact understood the charge, the plea cannot be voluntary in this latter sense.
426 U.S. at 645, 96 S.Ct. at 2257.
In view of the trial judge’s failure to apprise the petitioner at any time that he was pleading guilty to attempted murder, and it nowhere affirmatively appearing in the transcript that the petitioner was aware that his plea was to the charge of attempted murder, we are compelled to conclude that the transcript on its face is inadequate to show that the defendant understood the charge to which he was pleading.
In Roddy v. Black, 516 F.2d 1380 (6th Cir. 1975), we held that “[I]n the face of an inadequate transcript at the time of a guilty plea’s acceptance, the state must make a clear and convincing showing that the plea was in fact knowingly and understandably entered.” Moreover, the state is not relieved of this duty where the conviction being attacked arose in another jurisdiction. Craig v. Beto, 458 F.2d 1131 (5th Cir. 1972); U. S. ex rel. Savini v. Jackson, 250 F.2d 349 (2d Cir. 1957).
In Roddy v. Black, supra, a case decided prior to Henderson, supra, we refused to find a conviction invalid where the transcript disclosed that the judge who accepted the petitioner’s plea of guilty to assault and battery and immoral and indecent practices made reference only to a charge of “A&B” during the proceeding. Unlike the present case, however, in Roddy the state introduced testimony of the petitioner’s counsel, the prosecutor, and testimony of the judge who accepted the plea to the effect that the defendant “in fact knew the nature of the charges to which he was pleading guilty.” 516 F.2d at 1385. No such evidence was presented at petitioner’s pretrial hearing in the present case. In fact, the only extrinsic evidence was the testimony of petitioner. He testified that he had not been apprised of the nature of the charges against him in the 1972 Chicago conviction. He stated that his attorney had told him that he was “copping out to aggravated battery.” Petitioner further testified that he never personally received or read the indictment.
In the instant case, the state produced no evidence that petitioner received or read the 1972 indictment charging him with attempted murder. The state introduced no evidence that petitioner’s counsel or the court explained that he was charged with attempted murder. Finally, the transcript is inadequate to show that petitioner understood that he was pleading guilty to attempted murder. We hold, therefore, that the state failed to meet its burden to show by clear and convincing evidence that the defendant understood the nature of the charge against him.
We find it unnecessary to decide the additional issues raised by the petitioner in this appeal in view of our holding today that his Ohio conviction was unconstitutional.
The district court is reversed. We remand the case to the district court with directions to issue a writ of habeas corpus unless the State of Ohio grants petitioner a new trial within a reasonable time to be determined by the district court.
. O.R.C. § 2903.01 reads:
(A) No person shall purposely, and with prior calculation and design, cause the death of another.
(B) No person shall purposely cause the death of another while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit kidnapping, rape, aggravated arson or arson, aggravated robbery or robbery, aggravated burglary or burglary, or escape.
(C) Whoever violates this section is guilty of aggravated murder, and shall be punished as provided in section 2929.02 of the Revised Code.
. O.R.C. § 2929.02 provides, in pertinent part:
(A) Whoever is convicted of aggravated murder in violation of section 2903.01 of the Revised Code shall suffer death or be imprisoned for life, as determined pursuant to sections 2929.03 and 2929.04 of the Revised Code. In addition, the offender may be fined an amount fixed by the court, but not more than twenty-five thousand dollars.
. O.R.C. § 2929.03 provides:
(A) If the indictment or count in the indictment charging aggravated murder contains no specification of an aggravating circumstance listed in division (A) of section 2929.-04 of the Revised Code, then, following a verdict of guilty of the charge, the trial court shall impose sentence of life imprisonment on the offender.
(B) If the indictment or count in the indictment charging aggravated murder contains one or more specifications of aggravating circumstances listed in division (A) of section 2929.04 of the Revised Code, the verdict shall separately state whether the accused is found guilty or not guilty of the principal charge and, if guilty of the principal charge, whether the offender is guilty or not guilty of each specification. The jury shall be instructed on its duties in this regard, which shall include an instruction that a specification must be proved beyond a reasonable doubt in order to support a guilty verdict on such specification, but such instruction shall not mention the penalty which may be the consequence of a guilty or not guilty verdict on any charge or specification.
(C) If the indictment or count in the indictment charging aggravated murder contains one or more specifications of aggravating circumstances listed in division (A) of section 2929.04 of the Revised Code, then, following a verdict of guilty of the charge but not guilty of each of the specifications, the trial court shall impose sentence of life imprisonment on the offender. If the indictment contains one or more specifications listed in division (A) of such section, then following a verdict of guilty of both the charge and one or more of the specifications, the penalty to be imposed on the offender shall be determined:
(1) By the panel of three judges which tried the offender upon his waiver of the right to trial by jury;
(2) By the trial judge, if the offender was tried by jury.
(D) When death may be imposed as a penalty for aggravated murder, the court shall require a pre-sentence investigation and a psychiatric examination to be made, and reports submitted to the court pursuant to section 2947.06 of the Revised Code. Copies of the reports shall be furnished to the prosecutor and to the offender or his counsel. The court shall hear testimony and other evidence, the statement, if any, of the offender, and the arguments, if any, of counsel for the defense and prosecution, relevant to the penalty which should be imposed on the offender. If the offender chooses to make a statement, he is subject to cross-examination only if he consents to make such statement under oath or affirmation.
(E) Upon consideration of the reports, testimony, other evidence, statement of the offender, and arguments of counsel submitted to the court pursuant to division (D) of this section, if the court finds, or if the panel of three judges unanimously finds that none of the mitigating circumstances listed in division (B) of section 2929.04 of the Revised Code is established by a preponderance of the evidence, it shall impose sentence of death on the offender. Otherwise, it shall impose sentence of life imprisonment on the offender.
. O.R.C. § 2929.04 provides, in pertinent part:
(A) Imposition of the death penalty for aggravated murder is precluded, unless one or more of the following is specified in the indictment or count in the indictment pursuant to section 2941.14 of the Revised Code, and is proved beyond a reasonable doubt:
* * t}: * *
(5) The offender has previously been convicted of an offense of which the gist was the purposeful killing of or attempt to kill another, committed prior to the offense at bar, or the offense at bar was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons by the offender.
. See Footnote 4, supra.
. The recidivist statutes involved in Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967), were Articles 62, 63, and 64 of the Vernon’s Ann. Texas Pen. Code (1952).
Article 62 provides: If it be shown on the trial of a felony less than capital that the defendant has been before convicted of the same offense, or one of the same nature, the punishment on such second or other subsequent conviction shall be the highest which is affixed to the commission of such offenses in ordinary cases.
Article 63 provides: Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary.
Article 64 provides: A person convicted a second time of any offense to which the penalty of death is affixed as an alternate punishment shall not receive on such second conviction a less punishment than imprisonment for life in the penitentiary.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_procdis
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court uphold the dismissal by district court on procedural grounds?" 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".
SECOND CAREY TRUST v. HELVERING, Commissioner of Internal Revenue.
No. 7865.
United States Court of Appeals for the District of Columbia.
Argued Jan. 7, 1942.
Decided March 9, 1942.
Mr. George E. H. Goodner, of Washington, D. C., with whom Miss Helen Goodner, of Washington, D. C., was on the brief, for petitioner.
Mr. Lee A. Jackson, Special Assistant to the Attorney General, with whom Mr. Samuel O. Clark, Jr., Assistant Attorney General, and Mr. J. Louis Monarch, Special Assistant to the Attorney General, were on the brief, for respondent.
Mr. Sewall Key, Special Assistant to the Attorney General, and Mr. J. P. Wen-chel, General Counsel, Bureau of Internal Revenue, of Washington, D. C., and Mr. Charles E. Lowery, Special Attorney, Bureau of Internal Revenue, of Washington, D. C., also entered appearances for respondent.
Before GRONER, Chief Justice, and MILLER, and EDGERTON, Associate Justices.
GRONER, C. J.
The case requires an answer to three questions: (1) Did the Board err in holding petitioner not a trust but an association taxable as a corporation; (2) Did the Board err in refusing to exclude the amount of $36,882.84 from petitioner’s gross income; (3) Did the Board err in denying petitioner’s motion to grant further hearing or a new trial?
Briefly stated, the facts are these: In 1934 Messrs. Dififie, Brown, and Shanks, presumably of the State of Oklahoma, having acquired the right to receive one-eighth of seven-eighths of the net proceeds of the sale of oil and gas produced from five Oklahoma wells, organized petitioner, Second Carey Trust, and designated themselves as trustees. The trust was organized as an “express trust” under the Oklahoma laws. In addition to the one-eighth interest in the producing wells, it acquired mineral leases on four tracts of land located in four different Oklahoma counties. The trust estate was divided into 5,000 units of beneficial interests, for which nonassessable certificates were to be sold. The owner of each unit was entitled to receive a one five-thousandth part of the net income of the trust. The certificates were transferable only on the books of the trust. The trustees were authorized to manage the trust; to receive, collect, and distribute the income; to sell the property with the consent of two-thirds of the holders of beneficial units; to deduct from gross receipts expenses in management and administration, including five per cent of the net as compensation to themselves; and then to distribute the balance of the net equally among the unit holders monthly. The trust instrument further provided that neither the trustees nor the unit holders should be personally liable for the obligations of the trust and that the death of a unit owner or the transfer of his interest should not affect continuity of the trust, which should continue for a period of twenty years but might be terminated at any time upon written direction of the owners of two-thirds of the beneficial units. Upon termination, the trustees were empowered to sell the property without procuring consent of the unit holders. The trustees were required to keep correct records and accounts and were authorized to fill any vacancies in the trusteeship. The trust had no part in the operation of the producing wells, which had been drilled by an oil company on an oil lease from the owners of the land, but was liable for its pro rata share of the operating expenses, which the trustees were to verify and pay. The trust, however, was sole owner of the four nonproducing leases which, in the event of production, were to be operated by the trust for its benefit. The leases, however, were never developed, but two or three years after the formation of the trust were discontinued by nonpayment of the agreed rentals. Under the terms of the trust instrument, the trustees were entitled to receive for themselves the proportionate part of the net income applicable to unsold units of beneficial interest. In 1934, which is the taxable year in question, this amounted to the sum of $48,382.84. Of this, however, the trustees relinquished to the trust $36,882.84, which constitutes the item mentioned under the second heading above.
Petitioner for the year 1934 made its income tax return as a trust, showing a net loss of over $7,000. Subsequently the Commissioner held that petitioner was taxable as a corporation and determined a deficiency. Petitioner appealed. The Board sustained the finding that petitioner was an association taxáble as a corporation within the meaning of the applicable law. It held, contrary to the Commissioner, that petitioner was entitled to depletion in the amount of 27% per cent of its gross income and was also entitled to a deduction of 12% per cent of the declared value of its capital stock in the computation of excess profits tax. The result of the Board’s decision was to reduce the amount of the deficiency, but to leave a substantial sum due, for which judgment was entered.
First. The first and most important question is — Was petitioner a trust, for if it was, admittedly no tax is due. It is conceded by,the Commissioner that under the laws of Oklahoma petitioner is an express trust. On the basis of this, counsel argue that the federal government must tax entities as it finds them. And there is much reason in the contention — particularly in cases in which Congress has not specially declared otherwise. But unfortunately for petitioner, the rule as determined by the Supreme Court is to the contrary. “State law may control only when the federal taxing act, by express language or necessary implication, makes its own operation dependent upon state law”. Burnet v. Harmel, 287 U.S. 103, 110, 53 S.Ct. 74, 77, 77 L.Ed. 199, and see Heiner v. Mellon, 304 U.S. 271, 279, 58 S.Ct. 926, 82 L.Ed. 1337. The applicable federal act defines the' term “corporation” as including associations, joint-stock companies, and insurance companies, and the Supreme Court in illustrating the statutory concept of association in Morrissey v. Commissioner, Helvering v. Combs, and Helvering v. Coleman-Gilbert Associates, so fully covered the field of group business activity, that greater “ingenuity” than petitioner has shown or we can provide is required to place this trust outside the taxable pale.
Petitioner, however, thinks otherwise, and insists that here, unlike the cases we have cited, there were no “associates” and accordingly the Supreme Court rule does not fit. The basis of this is two-fold; that when this trust was created the trustees did not know who-would buy the certificates, and that the trust and not the trustees was the seller. But if the basis is admitted to be true, it is still a distinction without a difference. The trustees as individuals transferred • the property rights to the trust, and as trustees retained the beneficial interest in all the unsold shares, and the fact that they received these benefits as trustees rather than as owners does not change the true nature of the transaction. They held on until other associates took their places. To adopt petitioner’s view that because of this method of organization and sale they were not “associates” would be giving substance to pure fiction. Nor is petitioner’s argument that it is a strict or liquidating trust and is not a business trust any more convincing. Certainly, it has the characteristics as well as the powers of the latter and that, as the Supreme Court has declared, is enough. It cannot escape taxation by declining to exercise the powers which the instrument of its creation permits. Helvering v. Coleman-Gilbert Associates, supra, 296 U.S. at page 374, 56 S. Ct. 285, 80 L.Ed. 278.
But even if this view of petitioner’s contention be put to one side, there is here at least some evidence of actual business activity. The trust held,' in addition to its right of participation in the earnings of the producing wells, outright leases to four parcels of potential oil land, obviously for purposes of development or sale. The powers of the trust instrument permitted either. Equally obviously, the right of management and control was in fact exercised in the decision to abandon the.leases and discontinue the payment of rentals thereon. The determination by the trustees that the prospects of striking oil would not justify the cost of exploration was the exercise of business judgment in the control of properties acquired for profit and gain. Nashville Trust Co. v. Cotros, 6 Cir., 120 F.2d 157, certiorari denied 62 S.Ct. 181, 86 L.Ed. _. If the discretion had been affirmatively exercised, business activity would have followed. That it was negatively exercised is wholly different from its non-exercise. The fact of exercise at all is the expression of business judgment in an enterprise for profit. Considered in relation to the cases we have cited, petitioner’s argument that the trust does not resemble a corporation is not sustainable. On the contrary, we think it has all the main characteristics which the Supreme Court has named as distinguishing a corporation and a trust, namely, persons associated in carrying on a business enterprise, title in a continuing body — the trustees — to the property, both opportunity and the exercise of centralized management, continuity of existence, with ability to transfer interests without affecting continuity, and limited liability. And see Bert v. Helvering, 67 App.D.C. 340, 92 F.2d 491.
Second. Did the Board err in failing to exclude an item of $36,882.84 from petitioner’s gross income?
As we have seen, petitioner’s financial set-up is represented by 5,000 units of beneficial interest. The plan contemplated the sale of these units as opportunity offered, but provision was made to retain for the benefit of the creators of the trust — the trustees — all income payable on all such units as were not then sold to the public. In the taxable year in question some forty-eight thousand odd dollars thus accrued, but of this amount the trustees took only $11,-500 and surrendered to the trust the remaining $36,882.84, and petitioner collected and included this amount in its return of gross income. Its position here is that the item did not constitute income to petitioner, should have been excluded by the Board, and not computed in the amount of its income. The Board said:
“There is some evidence to the effect that during the taxable year approximately $36,882.84 of income applicable to unsold units was permitted by the trustees to be retained by the trust for distribution to the unit holders. The reason for this action does not appear. This amount was. included in income by the respondent in determining the deficiency, here in question. The petitioner has raised no issue as to this in the pleadings. Under the evidence before us, we cannot disturb this determination.”
Petitioner does not seriously question the validity of the decision as to this item in the circumstances under which it was made, but insists that the Board should have permitted an amendment to its petition, which some weeks after- the Board’s decision it requested permission to file. If the item was not “gains, profits, and income”, it should not have been taxed and while, as the Board said, not much appears in relation to it, for present purposes we assume it was no more than a voluntary payment by the trustees and therefore a mere gratuity. In such a case, my own view has always been, the government should waive technicalities rather than insist upon the exaction from one of its citizens of more than he owes. But unfortunately this is not the rule. To the contrary, the government, through its officers, invariably insists, in its law suits, upon any and every legal right it has, and sometimes the legal right and the moral right clash, in which case I have always thought the former should give way to the latter. But nothing is accomplished in stressing the point, first because it is not the prevailing view and, second, because it is well settled that a taxpayer on appeal to the Board is limited to the issues raised by his pleadings, and the position now contended for, admittedly, was not alleged. In justification of its dilemma, petitioner points out that its purpose in refusing to file alternative pleadings was to avoid embarrassment to its main position, i. e., that it was a trust and therefore not taxable as a corporation. But petitioner having made its election, it was discretionary with the Board after it had lost its main contention to permit it to mend its hold and try the case over again. Roberts v. Commissioner, 19 B.T.A. 351, 355; Hanby v. Commissioner, 4 Cir., 67 F.2d 125, 127; Popular Price T. Co. v. Commissioner, 7 Cir., 33 F.2d 464, 465.
And there is still another reason which militates here against petitioner in the application of a rule of right and fairness rather than the strict rule of law. For it seems clear that if the $36,000 item was income to the trustees, it was taxable to them as such. When they relinquished their right to it, it is a fair assumption that they wholly disregarded it as income for which they were taxable, with the result now that if it be disregarded in petitioner’s income, the government will have lost on a transaction which petitioner was wholly responsible for. In this state of facts, it would be going too far to say that the action of the Board was not correct in refusing to allow the amendment to the petition.
Third. What has just been said disposes of a part of petitioner’s point that the Board erred in refusing a further hearing and leave to amend its petition. In addition to the item we have just disposed of, petitioner sought by its amendment to set up new and different grounds on which to claim the deduction of an item of approximately $20,000 as expenses growing out of development costs. Granting that this item was allowable in reduction of gross income, which in the paucity of the record is going pretty far, we are nevertheless confronted here with the rule we have already spoken of, namely, that new issues not included in the pleadings submitted to the Board and decided by the Board may not, of right, be included after decision by amendment. Steele-Wedeles Co. v. Commissioner, 7 Cir., 63 F.2d 541, 543. Clearly, therefore, a petition to amend after final decision is to be considered subject to the discretion of the Board.
On the whole case, we are of opinion that the Board’s decision should be, and it is, affirmed.
Affirmed.
EDGERTON, J., concurs in the result, and in the first part of the opinion.
Sec. 801(a) (2), Revenue Act of 1934, 26 U.S.C.A. Int.Rev.Acts, page 790.
Sec. 114(b) (3), of the Act of 1934, 26 U.S.C.A. Int.Rev.Code, § 114(b) (3).
Sec. 11820 Oklahoma Statutes, 1931, 60 O.S.1941, § 171. State v. Prairie Cotton Oil Co., 180 Okl. 608, 71 P.2d 988.
Revenue Act 1934, ch. 277, 48 Stat. 680, 26 U.S.C.A. Int.Rev.Acts, page 664 et seq.
296 U.S. 344, 56 S.Ct 289, 80 L.Ed. 263.
296 U.S. 365, 56 S.Ct. 287, 80 L.Ed. 275
296 U.S. 369, 56 S.Ct. 285, 80 L.Ed. 278.
Question: Did the court uphold the dismissal by district court on procedural grounds?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
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songer_respond1_1_3
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J
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
BELLAVANCE v. FRANK MORROW CO., Inc.
No. 3914.
Circuit Court of Appeals, First Circuit
March 17, 1944.
Harold E. Cole, of Boston, Mass., for appellant.
Nathaniel Frucht, of Providence, R. I., for appellee.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
WOODBURY, Circuit Judge.
After our opinion in the above case was handed down on February 4, 1944, the plaintiff seasonably filed a petition for rehearing.. On February 24 we denied this petition. On March 3 the plaintiff filed a motion in which he asked us to reconsider our denial of his petition for rehearing for the reason that the decision of the Supreme Court in Goodyear Tire & Rubber Co. et al. v. Ray-O-Vac. Co., 64 S.Ct. 593, in practical effect overruled Cuno Engineering Corp. v. Automatic Devices Corp., 314 U.S. 84, 91,. 62 S.Ct. 37, 86 L.Ed. 58, the case upon which we and the district court heavily relied in concluding that the claims of the plaintiff’s patents were invalid for lack of invention. He says that the Goodyear case reverses the past trend of the Supreme Court toward an ever stricter application of the standard of invention.
The argument is invalid because it fails to take into account the difference in the way the question of invention was presented to the Supreme Court by the two cases cited above.
In the Cuno case the Supreme Court granted certiorari to resolve a conflict between decisions of the Second and Seventh Circuit Courts of Appeals on the question of the validity of the claims in suit, and it therefore necessarily could not apply “the well-settled rule that the concurrent findings of the lower courts on questions of fact will be accepted by this court unless clear error is shown”, but instead had itself to give “consideration to the question as to which of the decisions upon this question of fact [the question of invention], in the light of the prior art, is based upon the sounder reasoning.” Thomson Spot Welder Co. v. Ford Motor Co., 265 U.S. 445, 447, 44 S.Ct. 533, 534, 68 L.Ed. 1098; Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 36, 50 S.Ct. 9, 74 L.Ed. 147.
In the Goodyear case, however, the Supreme Court did not grant certiorari to resolve conflicting decisions below, but granted the writ to review an affirmance by the Circuit Court of Appeals for the Seventh Circuit of a district court decree holding certain claims of a patent valid and infringed. In this situation a majority of the court decided that the case was not strong enough to justify setting aside the concurrent findings of the two courts, district and circuit court of appeals, to the effect that the claims in suit were valid in that they disclosed an exercise of the faculty of invention. What it did in the Goodyear case, therefore, does not indicate that it is receding from the strict application of the standard for invention established in the Cuno case, which was not mentioned in the Goodyear opinion. What the cases cited above indicate is that the question of invention is one of fact, and that the Supreme Court will treat it as such and reverse only for clear error when it grants certiorari in the absence of conflict below, but that when there is conflict below and the Supreme Court in consequence can apply the standard of invention either strictly or liberally, it will apply the standard strictly. The situation may be unfortunate in that it leads to the unequal application of the patent law—a relatively trifling contribution may eventually obtain the protection of a patent while a more important one may not, depending upon whether or not there is a conflict of view between circuits—but this is not a problem for us to cope with. The most that circuit courts of appeals and district courts can do is what we and the court below have done here, that is, apply to the best of our ability the standard as we think the Supreme Court would apply it if a conflict between circuits should arise and certiorari should for that reason be granted. As the law now stands this is the only way we and the district courts can aid in obtaining a uniform application of the patent law. In the Goodyear case there is a statement by three of the dissenting Justices, quoting Mahn v. Harwood, 112 U.S. 354, 358, 5 S.Ct. 174, 6 S.Ct. 451, 28 L.Ed. 665, decided in 1884, that the question of invention is not one of fact at all but one of law to be decided by the courts. This is not in accord with the categorical statement in the Thomson Spot Welder Company case, supra, decided in 1924, that: “The question whether an improvement requires mere mechanical skill or the exercise of the faculty of invention, is one of fact; and in an action at law for infringement is to be left to the determination of the jury.” See also Hazeltine Corp. v. General Motors Corp., 3 Cir., 131 F.2d 34, 37 and cases cited. But, as I attempted to point out, I now think inadequately, in Hanovia Chemical & Mfg. Co. v. David Buttrick Co., 1 Cir., 127 F.2d 888, 889, this statement of the minority is in accord with judicial behavior in a great many cases. However, since a majority of the court in the Goodyear case obviously treated the question of invention as one of fact, as we did in the case at bar, we see no reason here to do more than advert again to the confusion in the law with respect to the nature of the question of patentable invention.
The motion to reconsider the plaintiff’s ' petition for rehearing is denied.
See also Williams Mfg. Co. v. United Shoe Machinery Corp., 316 U.S. 364, 62 S.Ct. 1179, 86 L.Ed. 1537.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
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sc_decisiondirection
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine 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.
PENNHURST STATE SCHOOL AND HOSPITAL et al. v. HALDERMAN et al.
No. 81-2101.
Argued February 22, 1983
Reargued October 3, 1983
Decided January 23, 1984
Powell, J., delivered the opinion of the Court, in which Burger, C. J., and White, Rehnquist, and O’Connor, JJ., joined. Brennan, J., filed a dissenting opinion, post, p. 125. Stevens, J., filed a dissenting opinion, in which Brennan, Marshall, and Blackmun, JJ., joined, post, p. 126.
H. Bartow Farr III and Allen C. Warshaw reargued the cause for petitioners. With them on the briefs were Thomas M. Kittredge, Joel I. Klein, LeRoy S. Zimmerman, Robert B. Hoffman, Debra K. Wallet, Alan J. Davis, and Mark A. Aronchick.
David Ferleger reargued the cause and filed a brief for respondents Halderman et al. Thomas K. Gilhool reargued the cause for respondents Pennsylvania Association for Retarded Citizens et al. With him on the brief were Frank J. Laski and Michael Churchill. Solicitor General Lee, Assistant Attorney General Reynolds, Deputy Assistant Attorneys General Cooper and Wilkinson, Brian K. Landsberg, and Frank Allen filed a brief for the United States.
A brief of amici curiae was filed for the State of Alabama et al. by Francis X. Bellotti, Attorney General of Massachusetts, Thomas R. Kiley, First Assistant Attorney General, and Carl Volvo, William L. Pardee, and Judith S. Yogman, Assistant Attorneys General, joined by the Attorneys General for their respective jurisdictions as follows: Charles A. Grad-dick of Alabama, Robert K. Corbin of Arizona (by Anthony Ching, Solicitor General), J. D. MacFarlane of Colorado, CarlR. Ajello of Connecticut, Richard S. Gebelein of Delaware, Michael J. Bowers of Georgia, Tyrone C. Fahner of Illinois, Linley E. Pearson of Indiana, Thomas J. Miller of Iowa, Steven L. Beshear of Kentucky, Frank J. Kelley of Michigan, John D. Ashcroft of Missouri, Paul L. Douglas of Nebraska, Richard H. Bryan of Nevada, Gregory H. Smith of New Hampshire, Irwin I. Kimmelman of New Jersey, Rufus L. Edmisten of North Carolina, Robert 0. Wefald of North Dakota, Hector Reichard of Puerto Rico, David L. Wilkinson of Utah, Bronson C. La Follette of Wisconsin, Steven Freudenthal of Wyoming, and Aviata F. Fa’Aleveo of American Samoa.
Justice Powell
delivered the opinion of the Court.
This case presents the question whether a federal court may award injunctive relief against state officials on the basis of state law.
I — t
This litigation, here for the second time, concerns the conditions of care at petitioner Pennhurst State School and Hospital, a Pennsylvania institution for the care of the mentally retarded. See Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 (1981). Although the litigation’s history is set forth in detail in our prior opinion, see id., at 5-10, it is necessary for purposes of this decision to review that history.
This suit originally was brought in 1974 by respondent Terri Lee Halderman, a resident of Pennhurst, in the District Court for the Eastern District of Pennsylvania. Ultimately, plaintiffs included a class consisting of all persons who were or might become residents of Pennhurst; the Pennsylvania Association for Retarded Citizens (PARC); and the United States. Defendants were Pennhurst and various Pennhurst officials; the Pennsylvania Department of Public Welfare and several of its officials; and various county commissioners, county mental retardation administrators, and other officials of five Pennsylvania counties surrounding Penn-hurst. Respondents’ amended complaint charged that conditions at Pennhurst violated the class members’ rights under the Eighth and Fourteenth Amendments; §504 of the Rehabilitation Act of 1973, 87 Stat. 394, 29 U. S. C. § 794; the Developmental^ Disabled Assistance and Bill of Rights Act, 89 Stat. 496, 42 U. S. C. §6001 et seqand the Pennsylvania Mental Health and Mental Retardation Act of 1966 (MH/MR Act), Pa. Stat. Ann., Tit. 50, §§4101-4704 (Purdon 1969 and Supp. 1983-1984). Both damages and injunctive relief were sought.
In 1977, following a lengthy trial, the District Court rendered its decision. Halderman v. Pennhurst State School and Hospital, 446 F. Supp. 1295. As noted in our prior opinion, the court’s findings were undisputed: “Conditions at Pennhurst are not only dangerous, with the residents often physically abused or drugged by staff members, but also inadequate for the ‘habilitation’ of the retarded. Indeed, the court found that the physicial, intellectual, and emotional skills of some residents have deteriorated at Pennhurst.” 451 U. S., at 7 (footnote omitted). The District Court held that these conditions violated each resident’s right to “minimally adequate habilitation” under the Due Process Clause and the MH/MR Act, see 446 F. Supp., at 1314-1318, 1322-1323; “freedom from harm” under the Eighth and Fourteenth Amendments, see id., at 1320-1321; and “nondiscriminatory habilitation” under the Equal Protection Clause and § 504 of the Rehabilitation Act, see id., at 1321-1324. Furthermore, the court found that “due process demands that if a state undertakes the habilitation of a retarded person, it must do so in the least restrictive setting consistent with that individual’s habilitative needs.” Id., at 1319 (emphasis added). After concluding that the large size of Pennhurst prevented it from providing the necessary habilitation in the least restrictive environment, the court ordered that “immediate steps be taken to remove the retarded residents from Pennhurst.” Id., at 1325. Petitioners were ordered “to provide suitable community living arrangements” for the class members, id., at 1326, and the court appointed a Special Master “with the power and duty to plan, organize, direct, supervise and monitor the implementation of this and any further Orders of the Court.” Ibid.
The Court of Appeals for the Third Circuit affirmed most of the District Court’s judgment. Halderman v. Pennhurst State School and Hospital, 612 F. 2d 84 (1979) (en banc). It agreed that respondents had a right to habilitation in the least restrictive environment, but it grounded this right solely on the “bill of rights” provision in the Developmentally Disabled Assistance and Bill of Rights Act, 42 U. S. C. § 6010. See 612 F. 2d, at 95-100, 104-107. The court did not consider the constitutional issues or § 504 of the Rehabilitation Act, and while it affirmed the District Court’s holding that the MH/MR Act provides a right to adequate habilitation, see id., at 100-103, the court did not decide whether that state right encompassed a right to treatment in the least restrictive setting.
On the question of remedy, the Court of Appeals affirmed except as to the District Court’s order that Pennhurst be closed. The court observed that some patients would be unable to adjust to life outside an institution, and it determined that none of the legal provisions relied on by respondents precluded institutionalization. Id., at 114-115. It therefore remanded for “individual determinations by the [District Court], or by the Special Master, as to the appropriateness of an improved Pennhurst for each such patient,” guided by “a presumption in favor of placing individuals in [community living arrangements].” Ibid.
On remand the District Court established detailed procedures for determining the proper residential placement for each patient. A team consisting of the patient, his parents or guardian, and his case manager must establish an individual habilitation plan providing for habilitation of the patient in a designated community living arrangement. The plan is subject to review by the Special Master. A second master, called the Hearing Master, is available to conduct hearings, upon request by the resident, his parents, or his advocate, on the question whether the services of Pennhurst would be more beneficial to the resident than the community living arrangement provided in the resident’s plan. The Hearing Master then determines where the patient should reside, subject to possible review by the District Court. See App. 123a-134a (Order of Apr. 24, 1980).
This Court reversed the judgment of the Court of Appeals, finding that 42 U. S. C. § 6010 did not create any substantive rights. Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 (1981). We remanded the case to the Court of Appeals to determine if the remedial order could be supported on the basis of state law, the Constitution, or § 504 of the Rehabilitation Act. See id., at 31. We also remanded for consideration of whether any relief was available under other provisions of the Developmentally Disabled Assistance and Bill of Rights Act. See id., at 27-30 (discussing 42 U. S. C. §§ 6011(a), 6063(b)(5) (1976 ed., Supp. V)).
On remand the Court of Appeals affirmed its prior judgment in its entirety. 673 F. 2d 647 (1982) (en banc). It determined that in a recent decision the Supreme Court of Pennsylvania had “spoken definitively” in holding that the MH/MR Act required the State to adopt the “least restrictive environment” approach for the care of the mentally retarded. Id., at 651 (citing In re Schmidt, 494 Pa. 86, 429 A. 2d 631 (1981)). The Court of Appeals concluded that this state statute fully supported its prior judgment, and therefore did not reach the remaining issues of federal law. It also rejected petitioners’ argument that the Eleventh Amendment barred a federal court from considering this pendent state-law claim. The court noted that the Amendment did not bar a federal court from granting prospective injunctive relief against state officials on the basis of federal claims, see 673 F. 2d, at 656 (citing Ex parte Young, 209 U. S. 123 (1908)), and concluded that the same result obtained with respect to a pendent state-law claim. It reasoned that because Siler v. Louisville & Nashville R. Co., 213 U. S. 175 (1909), an important case in the development of the doctrine of pendent jurisdiction, also involved state officials, “there cannot be... an Eleventh Amendment exception to that rule.” 673 F. 2d, at 658. Finally, the court rejected petitioners’ argument that it should have abstained from deciding the state-law claim under principles of comity, see id,., at 659-660, and refused to consider petitioners’ objections to the District Court’s use of a Special Master, see id., at 651, and n. 10. Three judges dissented in part, arguing that under principles of federalism and comity the establishment of a. Special Master to supervise compliance was an abuse of discretion. See id., at 662 (Seitz, C. J., joined by Hunter, J., dissenting in part); ibid. (Garth, J., concurring in part and dissenting as to relief). See also id., at 661 (Aldisert, J., concurring) (seriously questioning the propriety of the order appointing the Special Master, but concluding that a retroactive reversal of that order would be meaningless).
We granted certiorari, 457 U. S. 1131 (1982), and now reverse and remand.
II
Petitioners raise three challenges to the judgment of the Court of Appeals: (i) the Eleventh Amendment prohibited the District Court from ordering state officials to conform their conduct to state law; (ii) the doctrine of comity prohibited the District Court from issuing its injunctive relief; and (iii) the District Court abused its discretion in appointing two Masters to supervise the decisions of state officials in implementing state law. We need not reach the latter two issues, for we find the Eleventh Amendment challenge dispositive.
A
Article III, § 2, of the Constitution provides that the federal judicial power extends, inter alia, to controversies “between a State and Citizens of another State.” Relying on this language, this Court in 1793 assumed original jurisdiction over a suit brought by a citizen of South Carolina against the State of Georgia. Chisholm v. Georgia, 2 Dall. 419 (1793). The decision “created such a shock of surprise that the Eleventh Amendment was at once proposed and adopted.” Monaco v. Mississippi, 292 U. S. 313, 325 (1934). The Amendment provides:
“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”
The Amendment’s language overruled the particular result in Chisholm, but this Court has recognized that its greater significance lies in its affirmation that the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. III. Thus, in Hans v. Louisiana, 134 U. S. 1 (1890), the Court held that, despite the limited terms of the Eleventh Amendment, a federal court could not entertain a suit brought by a citizen against his own State. After reviewing the constitutional debates concerning the scope of Art. Ill, the Court determined that federal jurisdiction over suits against unconsenting States “was not contemplated by the Constitution when establishing the judicial power of the United States.” Id., at 15. See Monaco v. Mississippi, supra, at 322-323. In short, the principle of sovereign immunity is a constitutional limitation on the federal judicial power established in Art. Ill:
“That a State may not be sued without its consent is a fundamental rule of jurisprudence having so important a bearing upon the construction of the Constitution of the United States that it has become established by repeated decisions of this court that the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given: not one brought by citizens of another State, or by citizens or subjects of a foreign State, because of the Eleventh Amendment; and not even one brought by its own citizens, because of the fundamental rule of which the Amendment is but an exemplification.” Ex parte State of New York, 256 U. S. 490, 497 (1921) (emphasis added).
A sovereign’s immunity may be waived, and the Court consistently has held that a State may consent to suit against it in federal court. See, e. g., Clark v. Barnard, 108 U. S. 436, 447 (1883). We have insisted, however, that the State’s consent be unequivocally expressed. See, e. g., Edelman v. Jordan, 415 U. S. 651, 673 (1974). Similarly, although Congress has power with respect to the rights protected by the Fourteenth Amendment to abrogate the Eleventh Amendment immunity, see Fitzpatrick v. Bitzer, 427 U. S. 445 (1976), we have required an unequivocal expression of congressional intent to “overturn the constitutionally guaranteed immunity of the several States.” Quern v. Jordan, 440 U. S. 332, 342 (1979) (holding that 42 U. S. C. § 1983 does not override States’ Eleventh Amendment immunity). Our reluctance to infer that a State’s immunity from suit in the federal courts has been negated stems from recognition of the vital role of the doctrine of sovereign immunity in our federal system. A State’s constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued. As Justice Marshall well has noted, “[b]e-cause of the problems of federalism inherent in making one sovereign appear against its will in the courts of the other, a restriction upon the exercise of the federal judicial power has long been considered to be appropriate in a case such as this.” Employees v. Missouri Dept. of Public Health and Welfare, 411 U. S. 279, 294 (1973) (concurring in result). Accordingly, in deciding this case we must be guided by “[t]he principles of federalism that inform Eleventh Amendment doctrine.” Hutto v. Finney, 437 U. S. 678, 691 (1978).
B
This Court’s decisions thus establish that “an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another state.” Employees, supra, at 280. There may be a question, however, whether a particular suit in fact is a suit against a State. It is clear, of course, that in the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment. See, e. g., Florida Dept. of Health and Rehabilitative Services v. Florida Nursing Home Assn., 450 U. S. 147 (1981) (per curiam); Alabama v. Pugh, 438 U. S. 781 (1978) (per curiam). This jurisdictional bar applies regardless of the nature of the relief sought. See, e. g., Missouri v. Fiske, 290 U. S. 18, 27 (1933) (“Expressly applying to suits in equity as well as at law, the Amendment necessarily embraces demands for the enforcement of equitable rights and the prosecution of equitable remedies when these are asserted and prosecuted by an individual against a State”).
When the suit is brought only against state officials, a question arises as to whether that suit is a suit against the State itself. Although prior decisions of this Court have not been entirely consistent on this issue, certain principles are well established. The Eleventh Amendment bars a suit against state officials when “the state is the real, substantial party in interest.” Ford Motor Co. v. Department of Treasury of Indiana, 323 U. S. 459, 464 (1945). See, e. g., In re Ayers, 123 U. S. 443, 487-492 (1887); Louisiana v. Jumel, 107 U. S. 711, 720-723, 727-728 (1883). Thus, “[t]he general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter.” Hawaii v. Gordon, 373 U. S. 57, 58 (1963) (per curiam). And, as when the State itself is named as the defendant, a suit against state officials that is in fact a suit against a State is barred regardless of whether it seeks damages or injunctive relief. See Cory v. White, 457 U. S. 85, 91 (1982).
The Court has recognized an important exception to this general rule: a suit challenging the constitutionality of a state official’s action is not one against the State. This was the holding in Ex parte Young, 209 U. S. 123 (1908), in which a federal court enjoined the Attorney General of the State of Minnesota from bringing suit to enforce a state statute that allegedly violated the Fourteenth Amendment. This Court held that the Eleventh Amendment did not prohibit issuance of this injunction. The theory of the case was that an unconstitutional enactment is “void” and therefore does not “impart to [the officer] any immunity from responsibility to the supreme authority of the United States.” Id., at 160. Since the State could not authorize the action, the officer was “stripped of his official or representative character and [was] subjected in his person to the consequences of his individual conduct.” Ibid.
While the rule permitting suits alleging conduct contrary to “the supreme authority of the United States” has survived, the theory of Young has not been provided an expansive interpretation. Thus, in Edelman v. Jordan, 415 U. S. 651 (1974), the Court emphasized that the Eleventh Amendment bars some forms of injunctive relief against state officials for violation of federal law. Id., at 666-667. In particular, Edelman held that when a plaintiff sues a state official alleging a violation of federal law, the federal court may award an injunction that governs the official’s future conduct, but not one that awards retroactive monetary relief. Under the theory of Young, such a suit would not be one against the State since the federal-law allegation would strip the state officer of his official authority. N evertheless, retroactive relief was barred by the Eleventh Amendment.
HH HH I — I
With these principles in mind, we now turn to the question whether the claim that petitioners violated state law in carrying out their official duties at Pennhurst is one against the State and therefore barred by the Eleventh Amendment. Respondents advance two principal arguments in support of the judgment below. First, they contend that under the doctrine of Edelman v. Jordan, supra, the suit is not against the State because the courts below ordered only prospective injunctive relief. Second, they assert that the state-law claim properly was decided under the doctrine of pendent jurisdiction. Respondents rely on decisions of this Court awarding relief against state officials on the basis of a pendent state-law claim. See, e. g., Siler v. Louisville & Nashville R. Co., 213 U. S., at 193.
A
We first address the contention that respondents’ state-law claim is not barred by the Eleventh Amendment because it seeks only prospective relief as defined in Edelman v. Jordan, supra. The Court of Appeals held that if the judgment below rested on federal law, it could be entered against petitioner state officials under the doctrine established in Edel-man and Young even though the prospective financial burden was substantial and ongoing. See 673 F. 2d, at 656. The court assumed, and respondents assert, that this reasoning applies as well when the official acts in violation of state law. This argument misconstrues the basis of the doctrine established in Young and Edelman.
As discussed above, the injunction in Young was justified, notwithstanding the obvious impact on the State itself, on the view that sovereign immunity does not apply because an official who acts unconstitutionally is “stripped of his official or representative character,” Young, 209 U. S., at 160. This rationale, of course, created the “well-recognized irony” that an official’s unconstitutional conduct constitutes state action under the Fourteenth Amendment but not the Eleventh Amendment. Florida Dept. of State v. Treasure Salvors, Inc., 458 U. S. 670, 685 (1982) (opinion of Stevens, J.). Nonetheless, the Young doctrine has been accepted as necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to “the supreme authority of the United States.” Young, supra, at 160. As Justice Brennan has observed, “Ex parte Young was the culmination of efforts by this Court to harmonize the principles of the Eleventh Amendment with the effective supremacy of rights and powers secured elsewhere in the Constitution.” Perez v. Ledesma, 401 U. S. 82, 106 (1971) (concurring in part and dissenting in part). Our decisions repeatedly have emphasized that the Young doctrine rests on the need to promote the vindication of federal rights. See, e. g., Quern v. Jordan, 440 U. S., at 337; Scheuer v. Rhodes, 416 U. S. 232, 237 (1974); Georgia Railroad & Banking Co. v. Redwine, 342 U. S. 299, 304 (1952).
The Court also has recognized, however, that the need to promote the supremacy of federal law must be accommodated to the constitutional immunity of the States. This is the significance of Edelman v. Jordan, supra. We recognized that the prospective relief authorized by Young “has permitted the Civil War Amendments to the Constitution to serve as a sword, rather than merely a shield, for those whom they were designed to protect.” 415 U. S., at 664. But we declined to extend the fiction of Young to encompass retroactive relief, for to do so would effectively eliminate the constitutional immunity of the States. Accordingly, we concluded that although the difference between permissible and impermissible relief “will not in many instances be that between day and night,” 415 U. S., at 667, an award of retroactive relief necessarily “ ‘fall[s] afoul of the Eleventh Amendment if that basic constitutional provision is to be conceived of as having any present force.”’ Id., at 665 (quoting Rothstein v. Wyman, 467 P. 2d 226, 237 (CA2 1972) (McGowan, J., sitting by designation), cert. denied, 411 U. S. 921 (1973)). In sum, Edelman’s distinction between prospective and retroactive relief fulfills the underlying purpose of Ex parte Young while at the same time preserving to an important degree the constitutional immunity of the States.
This need to reconcile competing interests is wholly absent, however, when a plaintiff alleges that a state official has violated state law. In such a case the entire basis for the doctrine of Young and Edelman disappears. A federal court’s grant of relief against state officials on the basis of state law, whether prospective or retroactive, does not vindicate the supreme authority of federal law. On the contrary, it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law. Such a result conflicts directly with the principles of federalism that underlie the Eleventh Amendment. We conclude that Young and Edelman are inapplicable in a suit against state officials on the basis of state law.
B
The contrary view of Justice Stevens’ dissent rests on fiction, is wrong on the law, and, most important, would emasculate the Eleventh Amendment. Under his view, an allegation that official conduct is contrary to a state statute would suffice to override the State’s protection under that Amendment. The theory is that such conduct is contrary to the official’s “instructions,” and thus ultra vires his authority. Accordingly, official action based on a reasonable interpretation of any statute might, if the interpretation turned out to be erroneous, provide the basis for injunctive relief against the actors in their official capacities. In this case, where officials of a major state department, clearly acting within the scope of their authority, were found not to have improved conditions in a state institution adequately under state law, the dissent’s result would be that the State itself has forfeited its constitutionally provided immunity.
The theory is out of touch with reality. The dissent does not dispute that the general criterion for determining when a suit is in fact against the sovereign is the effect of the relief sought. See supra, at 101; post, at 146, n. 29. According to the dissent, the relief sought and ordered here — which in effect was that a major state institution be closed and smaller state institutions be created and expansively funded — did not operate against the State. This view would make the law a pretense. No other court or judge in the 10-year history of this litigation has advanced this theory. And the dissent’s underlying view that the named defendants here were acting beyond and contrary to their authority cannot be reconciled with reality — or with the record. The District Court in this case held that the individual defendants “acted in the utmost good faith... within the sphere of their official responsibilities,” and therefore were entitled to immunity from damages. 446 F. Supp., at 1324 (emphasis added). The named defendants had nothing to gain personally from their conduct; they were not found to have acted willfully or even negligently. See ibid. The court expressly noted that the individual defendants “apparently took every means available to them to reduce the incidents of abuse and injury, but were constantly faced with staff shortages.” Ibid. It also found “that the individual defendants are dedicated professionals in the field of retardation who were given very little with which to accomplish the habilitation of the retarded at Pennhurst.” Ibid. As a result, all the relief ordered by the courts below was institutional and official in character. To the extent there was a violation of state law in this case, it is a case of the State itself not fulfilling its legislative promises.
The dissent bases its view on numerous cases from the turn of the century and earlier. These cases do not provide the support the dissent claims to find. Many are simply miscited. For example, with perhaps one exception, none of its Eleventh Amendment cases can be said to hold that injunctive relief could be ordered against state officials for failing to carry out their duties under state statutes. And the federal sovereign immunity cases the dissent relies on for analogy, while far from uniform, make clear that suit may not be predicated on violations of state statutes that command purely discretionary duties. Since it cannot be doubted that the statutes at issue here gave petitioners broad discretion in operating Pennhurst, see n. 11, supra; see also 446 F. Supp., at 1324, the conduct alleged in this case would not be ultra vires even under the standards of the dissent’s cases.
Thus, while there is language in the early cases that advances the authority-stripping theory advocated by the dissent, this theory had never been pressed as far as Justice Stevens would do in this case. And when the expansive approach of the dissent was advanced, this Court plainly and explicitly rejected it. In Larson v. Domestic & Foreign Commerce Corp., 337 U. S. 682 (1949), the Court was faced with the argument that an allegation that a Government official committed a tort sufficed to distinguish the official from the sovereign. Therefore, the argument went, a suit for an injunction to remedy the injury would not be against the sovereign. The Court rejected the argument, noting that it would make the doctrine of sovereign immunity superfluous. A plaintiff would need only to “claim an invasion of his legal rights” in order to override sovereign immunity. Id., at 693. In the Court’s view, the argument “confuse[d] the doctrine of sovereign immunity with the requirement that a plaintiff state a cause of action.” Id., at 692-693. The dissent’s theory suffers a like confusion. Under the dissent’s view, a plaintiff would need only to claim a denial of rights protected or provided by statute in order to override sovereign immunity. Except in rare cases it would make the constitutional doctrine of sovereign immunity a nullity.
The crucial element of the dissent’s theory was also the plaintiff’s central contention in Larson. It is that “[a] sovereign, like any other principal, cannot authorize its agent to violate the law,” so that when the agent does so he cannot be acting for the sovereign. Post, at 153; see also post, at 142, 148-149, 158; cf. Larson, supra, at 693-694 (“It is argued... that the commission of a tort cannot be authorized by the sovereign.... It is on this contention that the respondent’s position fundamentally rests...”). It is a view of agency law that the Court in Larson explicitly rejected. Larson thus made clear that, at least insofar as injunctive relief is sought, an error of law by state officers acting in their official capacities will not suffice to override the sovereign immunity of the State where the relief effectively is against it. 337 U. S., at 690, 695. Any resulting disadvantage to the plaintiff was “outweigh[ed] ” by “the necessity of permitting the Government to carry out its functions unhampered by direct judicial intervention.” Id., at 704. If anything, this public need is even greater when questions of federalism are involved. See supra, at 99-100.
The dissent in Larson made many of the arguments advanced by Justice Stevens’ dissent today, and asserted that many of the same cases were being overruled or ignored. See 337 U. S., at 723-728 (Frankfurter, J., dissenting). Those arguments were rejected, and the cases supporting them are moribund. Since Larson was decided in 1949, no opinion by any Member of this Court has cited the cases on which the dissent primarily relies for a proposition as broad as the language the dissent quotes. Many if not most of these cases have not been relied upon in an Eleventh Amendment context at all. Those that have been so cited have been relied upon only for propositions with which no one today quarrels. The plain fact is that the dissent’s broad theory, if it ever was accepted to the full extent to which it is now pressed, has not been the law for at least a generation.
The reason is obvious. Under the dissent’s view of the ultra vires doctrine, the Eleventh Amendment would have force only in the rare case in which a plaintiff foolishly attempts to sue the State in its own name, or where he cannot produce some state statute that has been violated to his asserted injury. Thus, the ultra vires doctrine, a narrow and questionable exception, would swallow the general rule that a suit is against the State if the relief will run against it. That result gives the dissent no pause presumably because of its view that the Eleventh Amendment and sovereign immunity “ ‘undoubtedly ru[n] counter to modern democratic notions of the moral responsibility of the State.’” Post, at 164, n. 48 (quoting Great Northern Life Insurance Co. v. Read, 322 U. S. 47, 59 (1944) (Frankfurter, J., dissenting)). This argument has not been adopted by this Court. See Great Northern Life Insurance Co. v. Read, supra, at 51 (“Efforts to force, through suits against officials, performance of promises by a state collide directly with the necessity that a sovereign must be free from judicial compulsion in the carrying out of its policies within the limits of the Constitution”); Larson, 337 U. S., at 704 (“The Government, as representative of the community as a whole, cannot be stopped in its tracks...”). Moreover, the argument substantially misses the point with respect to Eleventh Amendment sovereign immunity. As Justice Marshall has observed, the Eleventh Amendment’s restriction on the federal judicial power is based in large part on “the problems of federalism inherent in making one sovereign appear against its will in the courts of the other.” Employees v. Missouri Dept. of Public Health and Welfare, 411 U. S., at 294 (concurring in result). The dissent totally rejects the Eleventh Amendment’s basis in federalism.
C
The reasoning of our recent decisions on sovereign immunity thus leads to the conclusion that a federal suit against state officials on the basis of state law contravenes the Eleventh Amendment when — as here — the relief sought
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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songer_respond1_3_2
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I
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES of America, Plaintiff-Appellee, v. Donald Mark NATHAN, Defendant-Appellant.
No. 86-5246.
United States Court of Appeals, Sixth Circuit.
Argued Nov. 21, 1986.
Decided April 9, 1987.
Rehearing and Rehearing En Banc Denied June 1,1987.
Herbert S. Moncier (argued), Ann C. Short (Court-appointed), Knoxville, Tenn., for defendant-appellant.
John W. Gill, U.S. Atty., Nancy Palmer (argued), Knoxville, Tenn., for plaintiff-appellee.
Before MERRITT, WELLFORD and NORRIS, Circuit Judges.
WELLFORD, Circuit Judge.
Defendant, Donald Mark Nathan, appeals his conviction for interstate transportation of three securities taken by fraud in violation of 18 U.S.C. § 2314. For the reasons that follow, we AFFIRM the conviction of defendant.
I. FACTUAL BACKGROUND
Nathan, who was a stockbroker with Prudential-Bache (“Pru Bache”) in Knoxville, Tennessee, was indicted by the government for interstate transportation in 1984 of three checks allegedly “taken by fraud,” which were drawn on the account of Pru Bache and payable to Robert L. Shirley. The theory of the prosecution was that Nathan, while with Pru Bache, removed $75,000 from Shirley’s account and deposited the money in his own account for his personal use.
Charles West, a C.P.A., who managed the personal finances of Robert Shirley, used the defendant as a broker for Shirley’s stock account. The account was a command account that could be drawn upon by request or by writing a check upon the account. Along with Shirley, West had access to the funds in the account.
West received two unrequested $25,000 checks drawn upon Pru Bache’s bank account and payable to Shirley in February of 1984. When West questioned the defendant, he was told that the checks had been issued erroneously by Pru Bache when another broker had listed the wrong account number on a check request form. West returned the checks to the defendant for redeposit to correct the error.
West again questioned the defendant when he received the February statement for Shirley’s account, showing two $25,000 debit entries and no corresponding credit entry showing the return of the funds. The defendant responded that the $50,000 had been used to purchase certificates of deposit for Shirley from a bank in Gatlinburg and that the certificates would be kept at Pru Bache for safekeeping. West later learned that no certificates had ever been purchased.
West did not recall ever receiving a third $25,000 Pru Bache check, but in mid-March, he had asked Nathan to transfer $25,000 from Shirley’s account to Shirley’s wife’s account. When the transfer was not reflected on the March account statement, the defendant told West that it was a bookkeeping error. West later learned that no such transfer of funds was ever made by the defendant.
In May, 1984, the defendant left Pru Bache to work for another brokerage firm, Cralin and Company in Florida. At Nathan’s request, the Shirley accounts were transferred with him. After the defendant went to Cralin, he telephoned West and told him that the balances for Shirley’s account now reflected the return of the $75,000.
Shortly after this phone call from the defendant, West received a call from the manager of the Cralin branch where the defendant was employed. Following this conversation, West contacted Pru Bache concerning the missing $75,000. As a result of his discussions with Pru Bache, $75,000 plus interest was refunded to Shirley. The defendant sent a letter to West postmarked September 8, 1984, in which the defendant stated that he had covered the losses of another account with Shirley’s money.
West testified that he had never given direct or indirect permission to the defendant to deposit checks payable to Shirley into Nathan’s account, to use any of Shirley’s money to pay off losses in someone else’s brokerage account, or to loan any of Shirley’s money to someone else. Shirley confirmed that he had not written and had not authorized anyone to write the endorsements “Robert Shirley” and “Don Nathan” which appear on the back of the three checks. He also stated that he had never authorized any loans from his account at Pru Bache. Shirley indicated that the missing $75,000 was first brought to his attention by West. He did not remember when West reported this, but believed it was after his accounts were transferred to Cralin and soon after West discovered the problem.
Carolyn Denny, a special FBI agent, conducted two interviews of the defendant in September 1984. She took notes of these interviews on FBI 302 forms. The defendant voluntarily provided his own two page statement setting forth his version of the events regarding the three $25,000 Pru Bache checks. During the interviews, the defendant admitted that he had written both the “Robert Shirley” endorsement and the “Don Nathan” endorsement. He further admitted that he had deposited each of these checks into his personal checking account.
The defendant was the Pru Bache account executive also responsible for the account of Tom Perry, who maintained his stock and commodities account and also a separate commodities account in the defendant’s name. The commodities account (the “Nathan/Perry” account) was claimed by Nathan to be a nominee account; he contended that Perry directed the trading in the account and received all the benefit of the account. The defendant admitted that the nominee account was set up to circumvent Stock Exchange and SEC regulations concerning trades by a single individual. The funds in the account in Perry’s name had been provided by Ken Graham. Perry managed the investments in the account in exchange for 10% of any profits.
In early February 1984, the Perry commodities account and the “Nathan/Perry” commodities account lost approximately $25,000 due to the failure to close out positions. Perry was trading in his commodities accounts more than the margin requirements permitted. (Perry thought he had a system to “beat” the market.) Nathan told Perry that payment of the losses had to be made very quickly due to margin payment deadlines. Perry replied that Graham was a millionaire and would supply the money but that he was out of town for a few days. Since Graham was unavailable, he and Perry attempted unsuccessfully to make trades to gain back Perry’s losses.
Nathan claimed that within an hour of informing Perry of the losses, he received a phone call from West requesting that $25,-000 be withdrawn from Shirley’s money market account. Nathan could not be sure but believed that he hand carried the first check, dated February 15, 1984, to West who then returned it to him. Nathan claimed that based on casual remarks by West and Perry, he assumed that this $25,-000 check was to be used to cover the losses in the Perry accounts as an informal loan from Shirley to Perry. There was no evidence that West ever specifically told the defendant that the money was to be used for Perry.
Nathan deposited the first $25,000 check into his personal checking account. He then purchased a cashier’s check payable to Pru Bache which he used to pay the losses from Perry’s commodities trading, since Pru Bache would not accept personal or third party checks.
A few days later, Nathan recalls that West again called Pru Bache and requested a second $25,000 withdrawal from Shirley’s account. This telephone request was received by another broker who passed West’s message on to the defendant. He then processed the check request form for the $25,000. Nathan mailed the check to West, who subsequently returned it in an envelope with other documents. Although West gave no specific instructions, Nathan claimed that he assumed that West intended this check to also be used to cover losses from the Perry account. Regarding the $25,000 transfer from Shirley’s account to his wife’s account, Nathan again stated that he assumed that West intended the funds to cover Perry’s trading losses.
Nathan deposited the third $25,000 check into his personal checking account and used a portion of the proceeds to purchase a $15,000 cashier’s check payable to Ken Graham. This cashier’s check was to cover Graham’s withdrawal request.
Nathan denied that he had used any of the $75,000 from Shirley’s account for his own personal benefit. Instead, he claimed that it was not until mid-April, 1984, that he realized his misinterpretation of West’s intentions regarding Shirley’s $75,000. The defendant admitted that he did not discuss this “misunderstanding” with West until many months later when he wrote him a letter concerning the transaction.
Pru Bache’s Knoxville, Tennessee branch office manager, Kosofsky, testified that in late February 1984, he had the defendant write a memo for the file explaining the trading in the Perry commodities account and the “Nathan/Perry” commodities account:
During the weeks of 1/31/84 thru 2/10/84, I executed commodity trades in accounts 87118 [“Nathan/Perry” Account] and 01536 [Perry Account]. The trades for 01536 were all done following my solicitation of the client. The trades in 87118 are, of course, in my own account____
Perry denied that he had ever authorized the defendant to open a nominee account on his behalf in Nathan’s name and stated that he had never seen the statements for either the securities or commodities “Nathan/Perry” account or for the Don and Pat Nathan stock account. Perry did not discuss the problems in his Pru Bache accounts with Kosofsky. Nathan’s motion for a bill of particulars was granted on a limited basis. Later, defendant unsuccessfully submitted a motion questioning the sufficiency of the government’s bill of particulars.
II. PRETRIAL DIVERSION
Prior to his indictment, defendant unsuccessfully requested pretrial diversion and was informed that the United States Attorney’s Office for the Eastern District of Tennessee did not recognize pretrial diversion. Defendant then filed a Petition for Review of Denial of Pretrial Diversion with the district court, which was denied.
Defendant requests judicial review of the prosecution’s, denial of pretrial diversion. For support of this position, Nathan cites United States v. Hicks, 693 F.2d 32, 33 (5th Cir.1982), cert. denied, 459 U.S. 1220, 103 S.Ct. 1226, 75 L.Ed.2d 461 (1983). The Hicks court held that there should be a hearing on alleged violations by the defendant of the diversion agreement in order “to make sure that the government had lived up to its side of the bargain.” Id. We do not find this case to be authority for defendant’s position here. Nathan argues that if some court review of a prosecutor’s refusal to grant pretrial diversion is not allowed, then a prosecutor might arbitrarily or discriminatorily refuse diversion.
The government asserts, on the other hand, that court review of a prosecutor’s decision whether or not to prosecute would be an unconstitutional breach of the separation of powers between the judicial and executive branches of government, an impermissible intrusion into the prosecutor’s discretionary function. United States v. Renfro, 620 F.2d 569, 574 (6th Cir.), cert. denied, 449 U.S. 902, 101 S.Ct. 274, 66 L.Ed.2d 133 (1980); United States v. Dangler, 556 F.Supp. 195, 198 (N.D.Ohio 1983). In Hicks, it was held that the defendant had no right to pretrial diversion. Hicks, 693 F.2d at 34.
There is no basis in this case for judicial interference with the prosecutor’s discretion and authority to decide whether or not to pursue pretrial diversion. The defendant’s motion was accordingly properly denied.
III. GRAND JURY PROCESS
The defendant asserts that the district court denied the defendant minimum due process by not holding a hearing on the motion for production of grand jury records and the motion to dismiss the indictment due to grand jury abuse. The motions alleged that the government improperly subpoenaed two Pru Bache employees who subsequently turned over requested documents in order to avoid appearances before the grand jury.
In United States v. Smith, 687 F.2d 147, 152 (6th Cir.1982), cert. denied, 459 U.S. 1116, 103 S.Ct. 752, 74 L.Ed.2d 970 (1983), we held that the United States Attorney did not overreach his authority by requesting the issuance of a grand jury subpoena and by suggesting a voluntary production of a handwriting exemplar as a permissible alternative to a grand jury appearance by the witness. The court held that “[i]n order for this court to order a dismissal of an indictment as part of its supervisory powers, there must be a ‘showing of demonstrated and longstanding prosecutorial misconduct’ as well as a showing of ‘prejudice to the defendant.’ ” Id. at 152-53. See also United States v. Griffith, 756 F.2d 1244, 1249 (6th Cir.), cert. denied, — U.S. -, 106 S.Ct. 114, 88 L.Ed.2d 93 (1985).
The government’s action in permitting the employees to submit documents in lieu of a grand jury appearance is the kind of conduct held not to be unconstitutional nor impermissible in Smith. The defendant, moreover, made no showing of prejudice due to any prosecutorial misconduct. Therefore, Nathan’s due process rights were not violated by the denial of a hearing in this regard.
IV. MOTION FOR PARTICULARS
The defendant asserts that the prosecution never defined the nature of the alleged fraudulent taking of the securities. Nathan contends that the prosecution introduced proof during trial of three types of fraud: (1) forging the endorsement of a security, (2) theft of Shirley’s money for the defendant’s own personal use, and (3) false representations, dishonesty and deceit by the defendant in obtaining the securities. The bill of particulars, however, specified fraud by means of the forged endorsement. Appellant asserts therefore that the proof at trial was at variance with the bill of particulars and that a new trial should be ordered. Nathan also argues that the jury instruction should have incorporated only the allegations of the bill of particulars as elements of the offense.
In United States v. Fruehauf Corp., 577 F.2d 1038 (6th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 349, 58 L.Ed.2d 344 (1978), we discussed the standard for whether a variance between the particulars alleged in the indictment and the proof at trial is prejudicial. The court stated:
A variance is not to be regarded as material where it is not of a character which could have misled the defendant at the trial, Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629 [630], 79 L.Ed. 1314 [(1935)]; or where it involves no element of surprise prejudicial to the efforts of the defendant to prepare his defense, United States v. Ragen, 314 U.S. 513, 526, 62 S.Ct. 374 [379], 86 L.Ed. 383, rehearing denied, 315 U.S. 826, 62 S.Ct. 620, 86 L.Ed. 1222 [(1942)]; or where it does not affect substantial rights. Rule 52(a), F.R. of Crim.P.; cf. United States v. Haskins, 345 F.2d 111, 114 (C.A.6 [1965]). “Whether or not a variance is prejudicial is a judgment that must be made on the facts of each case.” United States v. Russano, 257 F.2d 712, 715 (C.A.2 [1958]).
Id. at 1057 (quoting United States v. Mills, 366 F.2d 512, 514 (6th Cir.1966)).
We hold that the proof at trial did not vary materially from the bill of particulars charge and, therefore, variance, if any, was not prejudicial. Failure to include the specifics of the bill of particulars in the jury charge was not error under the circumstances. See United States v. Thetford, 676 F.2d 170, 183 (5th Cir.1982), cert. denied, 459 U.S. 1148, 103 S.Ct. 790, 74 L.Ed.2d 996 (1983); United States v. Francisco, 575 F.2d 815, 819 (10th Cir.1978); United States v. Radetsky, 535 F.2d 556, 565-67 (10th Cir.), cert. denied, 429 U.S. 820, 97 S.Ct. 68, 50 L.Ed.2d 81 (1976); Pipkin v. United States, 243 F.2d 491, 494 (5th Cir.1957). We are satisfied that the defendant was fully apprised of the nature of the fraud involved which included deceit, misrepresentation, and false endorsement. We find the variance in the proof, if any, did not affect defendant’s substantial rights. We therefore decline to set aside the convictions on the basis of this challenge.
V. EVIDENCE OF OTHER MISCONDUCT
Defendant contends that it was reversible error to permit evidence which indicated he was guilty of uncharged misconduct in respect to stock trading and the handling of customer accounts. The evidence in question involved a memo written by defendant, testimony of the Pru Bache branch manager, and testimony by Perry about unauthorized trades in his account by Nathan, particularly the “Nathan/Perry” account. This evidence, however, was unquestionably relevant and material with respect to showing the background and circumstances of Nathan’s conduct at Pru Bache with regard to the checks which were the subject matter of the indictment. The evidence contradicted defendant’s contentions about lack of any fraudulent intent, and about the expected benefit or lack thereof, derived by Nathan in respect to his dealing in the “Nathan/Perry” account and his need to utilize the check proceeds in question due to losses incurred. We believe the evidence involved material admissions by Nathan with respect to his course of dealing at Pru Bache and bore directly upon his credibility, particularly regarding his intent at the times in question. We therefore find no reversible error in the admission of this evidence. In further support of our ruling, we note the absence of objection by defendant to some of the evidenee which he now claims to be unduly prejudicial. See F.R.E. 103(a)(1).
VI. DISCOVERY OF FBI NOTES
Defendant vigorously asserts that the failure to disclose to him FBI interview notes, the so-called 302 forms, was significantly prejudicial and should mandate a setting aside of the guilty verdicts. The interview notes of government witnesses, taken by FBI agent Denny, are referred to as “statements” by defendant. Since the agent testified that the 302s are an accurate reflection of what the interviewee said, and because she had reviewed these notes or reports before the testimony, Nathan maintains that the FBI 302 reports come within the requirements of the Jencks Act, 18 U.S.C.A. § 3500, and should have been produced.
Following Denny’s testimony at trial, defense counsel moved for production of the agent’s notes on the grounds that they were “Jencks statements of witnesses who were interviewed”, (2) they were Jencks statements of the agent, and (3) they had been used to refresh the agent’s recollection (see Defendant/Appellant Brief, p. 22). The district court held, without a hearing, that the materials were not Jencks “statements” and were not then required to be turned over to defendant’s counsel. Later, defendant’s counsel again moved for these materials in controversy after the further testimony of West, Denny, and Perry.
Defendant contends further that failure to have a hearing in respect of his motions for production at trial was reversible error since he was denied the opportunity to examine the notes. He relies on an additional ground for production, that agent Denny was present during the prosecution’s pretrial interviews with these same witnesses regarding the same subject matter of the 302 reports. The district court found, however, that Denny did not read the notes back to the witnesses, nor have the witnesses read the notes, “nor in any way confirm that the notes were an accurate verbatim recording of the witnesses’ statements.”
One purpose of the Jencks Act is to prevent “the undiscriminating production of agent’s summaries of interviews regardless of their character or completeness.” Palermo v. United States, 360 U.S. 343, 350, 79 S.Ct. 1217, 1223, 3 L.Ed.2d 1287 (1959). Indeed, it would “be grossly unfair to allow the defense to use statements to impeach a witness which could not fairly be said to be the witness’ own rather than the product of the investigator’s selections, interpretations and interpolations.” Id. This risk does not exist, however, “where a witness has adopted or approved” the agent’s notes. Goldberg v. United States, 425 U.S. 94, 107, 96 S.Ct. 1338, 1346, 47 L.Ed.2d 603 (1976).
We have previously held that an FBI report of a witness’ statement is producible if the notes from the interview were read back to and verified by the witness and if the report summarized the notes without material variation. United States v. Chitwood, 457 F.2d 676, 678 (6th Cir.), cert. denied, 409 U.S. 858, 93 S.Ct. 141, 34 L.Ed.2d 103 (1972). Under § 3500(e)(2) a substantially verbatim recital of an oral statement made by a witness will suffice if recorded contemporaneously. United States v. McKeever, 271 F.2d 669, 674-75 (2d Cir.1959). In Padin, we upheld the denial of production of a DEA agent’s debriefing report summarizing a witness’ interview because only parts of the interview were recorded and because the witness never adopted the report by signing it, reading it, or having it read to her. United States v. Padin, 787 F.2d 1071, 1077-78 (6th Cir.), cert. denied, — U.S. -, 107 S.Ct. 93, 93 L.Ed.2d 45 (1986). Also, testimony was given that the agent exercised editorial discretion in the report by recording only statements to which he assigned importance. Id. at 1078. The trial court’s ruling on such matters is subject to a clearly erroneous standard. Chitwood, 457 F.2d at 678.
Even though Agent Denny expressly testified that she accurately summarized all of the witness’ statements in her reports, the fact remains that the witness never saw the report or had it read to them for adoption. Any biases or preconceptions of the agent while taking notes and completing the 302 reports would not necessarily have been corrected when the witnesses were subsequently interviewed by the prosecutors in the presence of the agent. The only method to ensure that the agent’s notes accurately detailed the witness’ statements is to follow the procedure detailed in Chitwood of having each witness read or verbally approve the applicable statement when read to him. See Goldberg v. United States, 425 U.S. at 110-11 n. 19, 96 S.Ct. at 1348 n. 19. Therefore, since the notes were never shown, read or explained to the witnesses, they were never adopted as a statement and are not producible under § 3500(e)(1). Padin, 787 F.2d at 1078; United States v. Hogan, 763 F.2d 697, 704 (5th Cir.1985); United
States v. Goldberg, 582 F.2d 483, 487 (9th Cir.1978), cert. denied, 440 U.S. 973, 99 S.Ct. 1538, 59 L.Ed.2d 790 (1979); United States v. Harris, 542 F.2d 1283, 1292 (7th Cir.1976), cert. denied, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977).
Nor do the reports appear to be substantially verbatim recitals of a witness’ oral statements. After careful inspection of the documents, we are not prepared to find the district court’s decision to disallow production of the statements to be clearly erroneous. See Padin, 787 F.2d at 1078; Hogan, 763 F.2d at 703.
Neither do the documents become Jencks Act material simply because the agent may have used them to refresh her recollection prior to taking the stand. Goldman v. United States, 316 U.S. 129, 132, 62 S.Ct. 993, 994, 86 L.Ed. 1322 (1942), overruled on other grounds, Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); United States v. Soto, 711 F.2d 1558, 1561-62 (11th Cir.1983); United States v. Atkinson, 513 F.2d 38, 41 (4th Cir.1975); Spurrier v. United States, 389 F.2d 367, 368 (5th Cir.1967), cert. denied, 391 U.S. 922, 88 S.Ct. 1814, 20 L.Ed.2d 658 (1968); McGill v. United States, 270 F.2d 329, 330-31 (D.C.Cir.1959), cert. denied, 362 U.S. 905, 80 S.Ct. 615, 4 L.Ed.2d 555 (1960); Tillman v. United States, 268 F.2d 422, 424-25 (5th Cir.1959); Needelman v. United States, 261 F.2d 802, 806-07 (5th Cir.1958), cert. dismissed, 362 U.S. 600, 80 S.Ct. 960, 4 L.Ed.2d 980 (1960); Lambert v. United States, 261 F.2d 799, 802 (5th Cir.1958).
Denny’s testimony regarding her interviews with Nathan did relate to the subject matter of her notes and her report and bore upon what Nathan had related to her previously in response to Denny’s questions about his activity. Nathan’s interview reports were, however, turned over to the defense prior to trial. Even if the notes and other witness reports were found to relate to Denny’s testimony, the language of § 3500(b), however, requires production of “any statement of the witness ... which relates to the subject matter as to which the witness has testified.” (Emphasis added). The problem is whether the 302 forms or the notes of the FBI agent concerning her interviews in and of themselves might constitute a “statement” within the meaning of the Act. The reports clearly state “This document contains neither recommendations nor conclusions of the FBI.” Also, the notes merely appear to be questions and brief notations of answers. We have already discussed reasons that persuade us that the 302 forms and notes are not statements of Nathan or other witnesses, which are required to be discovered. We have difficulty construing the interview notes and reports as a “statement” of FBI agent Denny. Assuming, however, that they were so construed, we would next determine whether the error in refusing to turn this information over to defendant’s counsel was harmless beyond a reasonable doubt after a careful reexamination of the material and in light of the entire record. See Rose v. Clark, — U.S. -, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986).
If the notes were used by the agent to refresh her recollection of the interviews with Nathan, then perhaps the agent might properly have been called upon to produce the notes for purposes of proper cross-examination. See Fed.R.Evid. 612(2). See generally United States v. Larranaga, 787 F.2d 489, 501 (10th Cir. 1986); United States v. Howton, 688 F.2d 272, 276 (5th Cir.1982); United States v. Costner, 684 F.2d 370, 373 (6th Cir.1982).
Our examination reveals that the materials in question were not exculpatory in nature; they involved inconsistent versions of events and the giving of conflicting reasons by Nathan for his actions and inactions upon questioning by the FBI.
Assuming, without deciding this difficult question, that the district court abused his discretion in not ordering the prosecution to turn over the material under Fed.R.Evid. 612, we are satisfied, nevertheless, that the error, if any, was harmless after consideration of the abundant proof of defendant’s guilt in the record and taking into account the totality of the circumstances. Rose, 106 S.Ct. at 3105-07; Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 1436-38, 89 L.Ed.2d 674 (1986); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967).
In this instance we have read carefully the sealed notes and reports, and have compared them with the testimony of Denny. We therefore AFFIRM the district court’s judgment.
. An FBI 302 is a form routinely used to memoralize an FBI interview of a witness.
. The statute, 18 U.S.C.A. § 2314 (1970), has several paragraphs. The bill of particulars of the government appears to specify paragraph one as the offense charged. The language "taken by fraud" and “converted” is used. The bill of particulars states that "the securities described in Counts 1, 2, and 3 of the Indictment were taken by fraud in that the defendant, without the knowledge or consent of the person to whom these checks were lawfully payable, converted said checks to his own use by endorsing and depositing the checks to his own bank account.” (Emphasis added). Paragraph one of § 2314 reads:
Whoever transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud ... [s]hall be fined not more than $10,000 or imprisoned not more than ten years, or both.
. The Jencks Act sets out in pertinent part:
§ 3500. Demands for production of statements and reports of witnesses
(a) In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpena [sic], discovery, or inspection until said witness has testified on direct examination in the trial of the case.
(b) After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified____
(e) The term "statement", as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States, means—
(1) a written statement made by said witness and signed or otherwise adopted or approved by him;
(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or
(3) a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.
. The district court did, however, conduct an in camera examination of the requested materials, and found that they contained "impressions of the interviewing FBI agent.”
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
|
songer_circuit
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Paul B. OWENS, Appellant, v. William BARNES, Dauphin County Bureau of Elections, Appellee, Commonwealth of Pennsylvania, Intervenor.
No. 82-3207.
United States Court of Appeals, Third Circuit.
Argued March 8, 1983.
Decided June 30, 1983.
Certiorari Denied Nov. 7,1983.
See 104 S.Ct. 400.
Joseph A. Torregrossa (argued), Jessica S. Jones, Andrew T. Baxter, Philadelphia, Pa., for appellant.
Robert L. Knupp, Graf, Knupp & Andrews, Harrisburg, Pa., for appellee.
LeRoy S. Zimmerman, Atty. Gen., Francis R. Filipi, Deputy Atty. Gen., Chief, Crim. Justice Agencies, Gregory R. Neuhau-ser, Deputy Atty. Gen. (argued), Harrisburg, Pa., for intervenor.
Before SEITZ, Chief Judge, and HIG-GINBOTHAM and SLOVITER, Circuit Judges.
OPINION OF THE COURT
SLOVITER,
Circuit Judge.
Plaintiff, convicted of a third-degree felony under Pennsylvania law, is currently incarcerated in a Pennsylvania institution. He filed this action under 42 U.S.C. § 1983 claiming that the Pennsylvania Election Code violates the Equal Protection Clause of the Fourteenth Amendment by denying incarcerated convicted felons an absentee ballot which, in effect, disenfranchises them.
Plaintiff concedes that Pennsylvania could constitutionally disenfranchise all convicted felons. That concession is compelled by the decision in Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974). In Richardson, the Court considered not only' the language of the Equal Protection Clause contained in § 1 of the Fourteenth Amendment but also the language of the less familiar § 2 of that amendment which provides for reduced representation “when the right to vote at any election ... is denied ... or in any way abridged, except for participation in rebellion, or other crime ” (emphasis supplied). After reviewing the history relating to the adoption of that section, the Court rested its conclusion that the state may disenfranchise felons on “the demonstrably sound proposition that § 1, in dealing with voting rights as it does, could not have been meant to bar outright a form of disenfranchisement which was expressly exempted from the less drastic sanction of reduced representation which § 2 imposed for other forms of disenfranchisement.” Id. at 55, 94 S.Ct. at 2671.
Plaintiff, however, argues that while Pennsylvania could choose to disenfranchise all convicted felons, it has not done so; uninearcerated convicted felons, such as those who have been sentenced to probation or released on parole, may vote. Plaintiff claims that the distinction made between incarcerated and unincarcerated felons violates equal protection. He argues that because the right to vote is fundamental, the classification must withstand strict scrutiny; in the alternative, he argues the classification is not even rationally related to a legitimate state interest.
It has not been seriously contended that Richardson precludes any equal protection analysis when the state legislates regarding the voting rights of felons. In the first place, in Richardson itself the Court acknowledged that unequal enforcement, if proven, could be unconstitutional and remanded so that the California courts could consider the claim “that there was such a total lack of uniformity in county election officials’ enforcement of the challenged state laws as to work a separate denial of equal protection. . . .” 418 U.S. at 56, 94 S.Ct. at 2671. Secondly, while there have been differing views as to whether there is any equal protection scrutiny of the state’s selection of disenfranchising offenses, compare the separate opinions in the in banc decision in Allen v. Ellisor, 664 F.2d 391 (4th Cir.), vacated to consider mootness in light of new statute, 454 U.S. 807,102 S.Ct. 80, 70 L.Ed.2d 76 (1981), it is generally accepted that the state may not otherwise classify on a wholly arbitrary basis. See Shepherd v. Trevino, 575 F.2d 1110,1114-15 (5th Cir.1978), cert. denied, 439 U.S. 1129,99 S.Ct. 1047, 59 L.Ed.2d 90 (1979). Disenfranchisement distinctions among prisoners made on the basis of race are precluded by the Fifteenth Amendment, but the Equal Protection Clause in § 1 of the Fourteenth Amendment must be relied on to protect prisoners against invidious distinctions based on sex or other arbitrary classifications. Thus, the Commonwealth conceded at oral argument that the state could not disenfranchise similarly situated blue-eyed felons but not brown-eyed felons. It follows that the Equal Protection Clause remains applicable, even after Richardson, to some voting classifications affecting convicted felons.
In this case, plaintiff makes no claim of unequal enforcement nor of any discrimination among those felons who are incarcerated. Instead, plaintiff claims that because the right to vote is “fundamental” Pennsylvania cannot abridge or limit it on the basis of incarceration without showing that classification is necessary to promote a compelling state interest.
Plaintiff’s argument fails because the right of convicted felons to vote is not “fundamental”. That was precisely the argument rejected in Richardson. In that case, plaintiffs relied on decisions invalidating state-imposed restrictions on the franchise as violative of the Equal Protection Clause, such as Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972), Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972), Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969), and Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969), to support their argument that a state must show a “compelling state interest” to justify exclusion of ex-felons from the franchise. The Court rejected that argument, holding that state laws disenfranchising felons are, because of the express language of § 2 as well as its history, distinguished “from those other state limitations on the franchise which have been held invalid under the Equal Protection Clause by this Court.” 418 U.S. at 54, 94 S.Ct. at 2671. It follows that the standard of equal protection scrutiny to be applied when the state makes classifications relating to disenfranchisement of felons is the traditional rational basis standard. Accord Williams v. Taylor, 677 F.2d 510, 514 (5th Cir.1982); Shepherd v. Trevino, 575 F.2d at 1114-15. Contra Hobson v. Pow, 434 F.Supp. 362, 366 (N.D.Ala.1977).
In summary, the state can not only disenfranchise all convicted felons but it can also distinguish among them provided that such distinction is rationally related to a legitimate state interest.
It remains only to consider whether Pennsylvania’s voting scheme which permits unincarcerated felons to vote but denies that right to incarcerated felons satisfies this level of scrutiny. We are not bound by the state’s inexplicable failure to provide in its brief any rationale for such distinction, see Murillo v. Bambrick, 681 F.2d 898, 908 n. 20 (3d Cir.), cert. denied, — U.S. —, 103 S.Ct. 378, 74 L.Ed.2d 511 (1982), because we believe the basis is apparent on its face. The Court recently reiterated its earlier statement that “Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlining our penal system.” Hewitt v. Helms, — U.S. —, 103 S.Ct. 864, 869, 74 L.Ed.2d 675 (1983) (quoting Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049,1060, 92 L.Ed. 1356 (1948)). The state could rationally decide that one of the losses, in addition to the basic deprivation of liberty, to which a prisoner who is incarcerated should be subject is that of participation in the democratic process which governs those who are at liberty. At the same time, Pennsylvania could rationally determine that those convicted felons who had served'their debt to society and had been released from prison or whose crimes were not serious enough to warrant incarceration in the first instance stand on a different footing from those felons who required incarceration, and should therefore be entitled to participate in the voting process.
For the foregoing reasons, we will affirm the decision of the district court dismissing plaintiff’s complaint for failure to state a claim.
. The Pennsylvania Election Code does not explicitly disenfranchise convicted felons. The section dealing with absentee ballots provides:
[T]he words “qualified absentee elector” shall in nowise be construed to include persons confined in a penal institution or a mental institution....
25 Pa.Stat. §§ 2602(w)(12), 3146.1. The Pennsylvania Supreme Court has construed the absentee ballot provision as legislative action defining qualified electors. Ray v. Commonwealth, 442 Pa. 606, 609, 276 A.2d 509, 510 (1971). As so interpreted, the Pennsylvania statute differs from the Tennessee statute construed in Tate v. Collins, 496 F.Supp. 205, 208 (W.D.Tenn.1980), on which plaintiff relies, which all parties conceded gave the prisoners at issue the right to vote.
. The Pennsylvania Attorney General has construed the decision in O’Brien v. Skinner, 414 U.S. 524, 94 S.Ct. 740, 38 L.Ed.2d 702 (1974), to require providing absentee ballots to incarcerated misdemeanants and pretrial detainees. See 1974 Op.Att’y.Gen. No. 47. This is not at issue here and we express no view on this interpretation of O’Brien.
. The full text of § 2 of the Fourteenth Amendment is as follows:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of. representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
. The Commonwealth gives no support for its argument that convicted felons should be regarded as “confined in a penal institution” as long as they are under “lawful, sentence” irrespective of whether they are incarcerated. Brief for Intervenor at 14. The statutory words “confined in a penal institution” could not be clearer and we see no reason to twist them out of their natural meaning by the Commonwealth’s strained interpretation. Further, the published Attorney General’s Opinion states that “the Election Code permits a convicted felon who has served his sentence or who is free on probation to appear personally and register and vote.” 1974 Op.Att’y.Gen. No. 47, at 187-88.
. We need not decide the standard to be applied were the distinction made on a basis, such as sex or national origin, which ordinarily evokes a heightened level of scrutiny.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_state
|
22
|
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".
Lucy J. BUCKLEY, Plaintiff, Appellant, v. AMERICAN HONDA MOTOR COMPANY, INC., Defendant, Appellee.
No. 85-1346.
United States Court of Appeals, First Circuit.
Argued Sept. 6, 1985.
Decided Dec. 19, 1985.
Robert V. Lizza with whom Stephen A. Hopkins and Sherburne, Powers & Need-ham, . Boston, Mass., were on brief for plaintiff, appellant.
Peter M. Durney with whom Cornell & Gollub, Boston, Mass., was on brief for defendant, appellee.
Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge and CEREZO, District Judge.
Of the District of Puerto Rico, sitting by designation.
CEREZO, District Judge.
Plaintiff appeals from the judgment dismissing her products liability suit as time barred. Applying Massachusetts’ three-year statute of limitations period for this type of case, Mass. G.L. c. 260, sec. 2A and c. 106, sec. 2-318, and that state's particular criteria of accrual for inherently unknowable wrongs, see Fidler v. Eastman Kodak Co., 714 F.2d 192, 196-99 (1st Cir.1983), the district court concluded that once plaintiff had knowledge of her injuries and the fact that contact with the steering wheel and engine was involved in causing her injuries, she was on notice that the design of her 1979 Honda may have been a cause of her injury and had the responsibility to investigate and determine whether she had a claim against defendant.
We review the factual setting in light of the requirements of Fed.R.Civ.P. 56 and its case law. On March 2, 1980, plaintiff’s 1979 Honda Civic collided at an approximate speed of fifteen miles per hour with a Buick sedan. The front end of her car bore the brunt of the impact. Despite the low speed, she was seriously injured when the front end of her car was pushed back causing the steering column to strike her chest and the engine to enter the driver’s compartment. In April 1981, plaintiff filed an action in state court against the driver of the Buick. That case was settled for the full value of the insurance policy. Three years later, on March 2, 1984, she sued American Honda Motor Co., Inc., the distributor of her 1979 Honda Civic, for breach of warranty, negligent design, failure to warn of design deficiencies and strict liability. The alleged defect was the inability of the vehicle to withstand normal crash impact in a safe manner by reducing the backward movement of the steering column and the engine.
A timetable for discovery and motions was established to explore the issue of whether the products liability claims were time barred. Defendant requested summary judgment contending that the date of the accident set the time for accrual. Plaintiff argued that until June of 1983, when she read a magazine article which described the results of crash testing the 1980 Honda Civic, she had no warning or other information which could have given her notice that her injuries were far more serious because of design deficiencies in her 1979 Honda Civic. After further investigation, her attorney found a November 1981 report prepared by the MGA Research Corp. for the National Highway Traffic Safety Administration (NHTSA) which stated that significant reduction of potential injury by front end impact to front seat passengers had been achieved by changing the steering column and seat belts in the Honda Civic 1981 model as compared to the 1980 model, which was similar to the 1979 model.
Plaintiff argues on appeal that there were issues of fact which barred summary disposition of this case and that the application of Massachusetts law was erroneous. In an attempt to preclude defendant from using the doctrine that sets accrual at the time the claimant has reasonable notice of the injury, plaintiff asks that we infer that Honda deliberately withheld information concerning the crash characteristics of the 1979 and 1980 models of the Honda Civic which it must have known prior to the time she bought her car in February of 1980. The basis for this inference is the assumption that prior testing had to be done before the NHTSA report was issued. Appellant suggests that had she been given more time for discovery she might have come up with something to buttress her estoppel argument.
Her position on the application of Massachusetts accrual criteria is that, even assuming that the date on which she read the magazine article were irrelevant for accrual purposes, there is still no way she could have reasonably discovered the causal relationship between her injuries and the design deficiencies of her car prior to publication of the November 1981 report. She claims that a products liability claim against the Honda manufacturer or distributor, without the benefit of this particular report, would have been speculative and would possibly have violated federal pleading requirements.
Although appellant contends, in general terms, that there are issues of fact that precluded summary dismissal, she has pointed to none which meet the rule’s genuineness and materiality requirements. See Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976). The suggestion that a genuine controversy exists as to whether defendant is estopped from resorting to the limitations defense because of the possibility of deliberately withholding information is based on groundless assumptions. The “favorable inferences” generally afforded parties opposing summary judgment must be reasonable and based on factual elements, not on conjecture, id., see White v. Hearst Corp., 669 F.2d 14, 19 (1st Cir.1982). The bare hope that additional discovery will provide the factual support that past discovery has failed to muster is insufficient to thrust aside a well-grounded motion for summary judgment. See Over the Road Drivers, Inc. v. Transport Insurance Co., 637 F.2d 816, 820 (1st Cir.1980). The district court did not commit reversible error in its application of Rule 56 criteria.
Appellant admits that neither she nor her attorney ever undertook any investigation prior to the summer of 1983 regarding the automobile’s design and its possible link to her injuries. At the time of the accident she was aware that her chest injuries were caused by the backward movement of the steering wheel and column and that she hurt her right knee when the engine entered the passenger compartment. The circumstances surrounding the crash, i.e., the low speed, the extent of her car’s damage despite the relatively light impact, the fact that contact with the steering wheel and the engine caused her injuries, were all known to her at the time of the accident. Even assuming the correctnéss of plaintiff’s conclusory, albeit unrebutted, statement that there were no published reports similar to the NHTSA report prior to November 1981, the circumstances surrounding the collision and the state of the law at the time were sufficient indicia to place her on notice that design deficiencies were a contributing cause of her injuries and to trigger an inquiry into defendant’s potential liability. See Fidler, 714 F.2d at 196-99. As plaintiff herself points out, at the time of the accident the general doctrine that automobile manufacturers could be found liable if their cars were not crash-worthy had long been established by federal case law, see, e.g., Larsen v. General Motors, 391 F.2d 495 (8th Cir.1968) (excessive backward thrust of the steering column in General Motors’ Corvair model upon front end impact), and by the Supreme Judicial Court of Massachusetts, see Back v. Wickes Corp., 375 Mass. 633, 378 N.E.2d 964 (1978). It cannot seriously be argued that the 1981 NHTSA report was a scientific “breakthrough,” given the existence of the earlier doctrine that automobiles in general, regardless of the make, could be defective if not built to respond to a crash situation in a reasonably safe manner. This theory of causation was well known at the time of the accident in the legal and scientific communities. The fact that there was no specific report on plaintiff’s particular car model is not indicative of such a lack of adequate scientific knowledge which would make plaintiff’s theory of causation “not sufficiently understood to support a legal claim.” Fidler, 714 F.2d at 200. She could have conducted a routine investigation by inquiring of knowledgeable individuals who did not necessarily have to be NHTSA car design engineers. There is nothing in the record from which to' show that a reasonable and effective preliminary investigation would have been prohibitively costly, or that such an investigation would have been futile. The defect which made the model “unerashworthy” in the present case, the alleged lack of collapsibility of the 1980 model’s steering column, could also have been ascertained through regular discovery after filing the case. It would be unreasonable to require litigants to file complaints only after the completion of all testing has established the definite and exact cause of their injuries.
Given the existence of the doctrine of crashworthiness at the time of the accident and the circumstances surrounding this collision, we find that appellant had enough data to reasonably conclude that the defective design of defendant’s product was a likely contributing cause to the seriousness of her serious injuries. From that moment on she had the duty to make inquiry as to whether or not she had a valid legal claim to bring before the courts.
The judgment of the district court is
Affirmed.
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_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".
Adrian JOHNSON, Appellant, v. O. B. ELLIS, Director, Texas Department of Corrections, Appellee.
No. 19058.
United States Court of Appeals Fifth Circuit.
Dec. 8, 1961.
Bernard A. Golding, Houston, Tex., for appellant.
Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Asst. Dist. Atty., Houston, Tex., Lee P. Ward, Jr., Asst. Dist. Atty., Houston, Tex., for appellee.
Before TUTTLE, Chief Judge, and HUTCHESON and RIVES, Circuit Judges.
PER CURIAM.
The petitioner-appellant was convicted of murder in the Criminal District Court of Harris County, Texas, and sentenced to death. The judgment was affirmed by the Court of Criminal Appeals of Texas. Johnson v. State, 1960, 336 S.W.2d 175. Certiorari was denied, with Mr. Justice Douglas dissenting. Johnson v. Texas, 1960, 364 U.S. 927, 81 S.Ct. 355, 5 L.Ed.2d 267. In the petition for habeas corpus in the United States District Court for the Southern District of Texas, it is alleged:
“Petitioner’s judgment and sentence to death violates the due process clause of the Fourteenth Amendment of the United States on at least three specific grounds:
“(a) It is based on a coerced and forced confession obtained from Petitioner by a group of Police officers and other law enforcement agents after protracted questioning, during which time he was denied counsel, access to family and friends, was not advised of his rights and was detained without any authority, contrary to the spirit and requirements of the Fourteenth Amendment;
“(b) that he was sentenced to his doom solely on the basis of a ‘confession’ obtained by threats, force, coercion and subtle illegal practices, while illegally restrained, contrary to the spirit and requirements of the Fourteenth Amendment;
“(c) Petitioner was denied the statutory right to testify in open Court that during the period he was incarcerated in the Harris County jail and while indicted as a party to the commission of this offense, he was removed from said County Jail to a distant area and building occupied by the Texas Rangers, for the avowed purpose of procuring from him another ‘confession’; and
“(d) that the trial court permitted the introduction by the State against him, the issue of a collateral crime, not embraced in the indictment, over his objections.”
Substantially these same grounds of attack upon the conviction and sentence had been ruled adversely to the petitioner by the Court of Criminal Appeals of Texas. While the federal district court found no “vital flaw” in the State proceedings it nonetheless chose “to air this matter fully” “in view of petitioner’s youth, the serious charges made by petitioner, and the crucial fact that the punishment is death.” After a full hearing and a thorough examination of petitioner’s trial in the Criminal District Court of Harris County, Texas, the district court found that the petitioner’s constitutional rights have been in no way violated and denied his petition for habeas corpus. For a more detailed statement of the facts, we refer to the opinion of the Court of Criminal Appeals of Texas, supra, and to the opinion- of the District Court reported as Johnson v. Ellis, 1961, 194 F.Supp. 258.
The findings of fact by the district court came to this Court buttressed by the “clearly erroneous” Rule 52(a), Federal Rules of Criminal Procedure, 18 U.S.C.A. Rushing v. Wilkinson, 5 Cir., 1959, 272 F.2d 633, 638. After careful consideration of the briefs and arguments of counsel, and a reading of the transcript of evidence, including the evidence in petitioner’s criminal trial, we find no valid criticism of the district court’s findings of fact. We agree with its conclusions of law, and think that this case is clearly distinguishable from Reck v. Pate, Warden, 1961, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948, unless the separate concurring opinion of Mr. Justice Douglas in that case should be followed. For the reasons well stated in the excellent opinion of Judge Ingraham, the judgment of the district court is
Affirmed.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_casetyp1_1-3-1
|
P
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense".
UNITED STATES of America, Plaintiff-Appellee, v. William Tazwell EAST, Defendant-Appellant.
No. 23435.
United States Court of Appeals Ninth Circuit.
Sept. 16, 1969.
Donald L. Ostrem (argued), and Leo Graybill, Jr., of Graybill, Graybill & Ostrem, Great Falls, Mont., for appellant.
Donald C. Robinson (argued), Asst. U. S. Atty., Moody Brickett, U. S. Atty., Robert O’Leary, Asst. U. S. Atty., Butte, Mont., for appellee.
Before JERTBERG, MERRILL and ELY, Circuit Judges.
JERTBERG, Circuit Judge:
Following trial to a jury, appellant was convicted on both counts of a two count indictment, each count charging a violation of 18 U.S.C. § 1001. He was sentenced to the custody of the Attorney General for a term of two years on each count, the sentences to run concurrently. Execution of the sentences, as to imprisonment, was suspended and the appellant was placed on probation for a term of two years under specified terms and conditions.
Appellant was, and for a number of years had been, a civilian employee of the United States Air Force whose permanent duty station was Mayville, North Dakota. In early October, 1966, his permanent duty station was changed to Conrad, Montana. This change necessitated the transportation of appellant, his family and his household goods from Mayville to Great Falls, Montana. Appellant accomplished this transfer between October 17 and October 25, 1966. Expenses to be incurred by appellant in accomplishing this change of duty station were reimbursable under United States Air Force Joint Travel Regulations.
In March 1967, appellant submitted a travel voucher to the Accounting and Finance Branch of the Air Force at Great Falls, Montana, in which he claimed:
(a) reimbursable expenses in the amount of $296.00 for temporary quarters in Great Falls, Montana, which consisted of $90.00 for rent of temporary quarters, $186.00 for meals, $10.00 for laundry and drycleaning, and $10.00 for tips incident to meals; and
(b) reimbursable expenses for the cost of transporting 8060 pounds of household goods from Mayville, North Dakota, to Great Falls, Montana. The amount of this claim does not appear in the record.
As part of the travel voucher appellant submitted three substantiating documents which formed the basis of the indictment.
The basis of the first count of the indictment is a receipt dated October 29, 1966, for rental paid by appellant to one, Kelly, for basement rooms in Great Falls, Montana. This receipt represents that appellant had incurred expenses of $90.00 for rental of rooms from October 18 to October 28,1966.
The basis of the second count are two weigh slips dated October 15,1966, issued by a grain elevator company in Mayville North Dakota. These weigh slips, attached as a part of the travel voucher, purported to represent the transportation in a pick-up truck and trailerhouse of 8060 pounds of household goods from Mayville, North Dakota, to Great Falls, Montana.
There is no dispute in the record that the receipt for room rent in the amount of $90.00 attached to the travel voucher was false and fictitious, and that no rooms were rented by appellant from Kelly, and appellant paid no rental to Kelly. In fact, there is no dispute in the record that appellant occupied quarters at the New Villa Motel in Great Falls, Montana, for seven nights during the period October 14 through October 25, inclusive, 1966, and paid rental in the amount of $56.00. It is also without dispute that the weigh slips of household goods, attached to the voucher, were false and fictitious. The goods had never been weighed by the elevator company at May-ville, but the weigh slips had been issued in February, 1967, at the request of appellant who asked that they be backdated and show net weights of 2040 pounds and 6020 pounds, respectively. In fact, there is no dispute that appellant’s household furniture was transported in his mobile home from Mayville, North Dakota, to Great Falls, Montana, by a professional mover.
In his specification of errors, appellant contends that the district court erred:
1) “in refusing to grant Appellant’s Motion to Dismiss Counts I and II of the .Indictment, for the reason that said Counts I and II fail to charge an offense under the provisions of 18 U.S.C. § 1001, in that the facts therein claimed to be fraudulent were, in fact, immaterial; * *
2) “in refusing to grant Appellant’s Motions to Dismiss, re-offered at the close of Defendant’s case, in that the Prosecution failed to prove the charges as to materiality as stated in the Indictment.”
3) “in refusing to instruct the Jury with reference to specific intent, other than to mention ‘specific intent’, and in refusing to instruct the Jury in accordance with Appellant’s proffered Instructions with regard to the definition of specific intent as applied to the charges as contained in the Indictment and the ‘travel voucher’ submitted by Appellant; whether it further constituted error to instruct the Jury that, ‘now, in the statute which I have read to you, makes (sic) no provision for expedient receipts, * * when in fact the term ‘expedient receipts’ had been used throughout the trial in a descriptive manner to support Defendant’s proof of the absence of specific intent.”
4) “in instructing the Jury as to three elements of the charged offense and refusing to instruct the Jury that a fourth element of the offense charged required that the false statement or representation to be material to a matter within the jurisdiction of the United States Air Force.”
We consider first, and together, appellant’s contentions under 1) and 2) above that the indictment fails to state an offense under 18 U.S.C. § 1001, and that the Government’s proof was insufficient to sustain the conviction. Both contentions are grounded on the argument that the false statements contained in the spurious room rental receipt and weigh slips attached to the voucher presented to the Air Force for reimbursement of expenses, were not material to a matter within the jurisdiction of the Air Force.
The law is well-settled in this Circuit that materiality of the falsification is an essential element of the offenses defined in 18 U.S.C. § 1001. Brandow v. United States, 268 F.2d 559 (9th Cir. 1959); Paritem Singh Poonian v. United States, 294 F.2d 74 (9th Cir. 1961). See also Gonzales v. United States, 286 F.2d 118 (10th Cir. 1960).
The courts appear to be in general agreement that the test for determining the materiality of the falsification is whether the falsification is calculated to induce action or reliance by an agency of the United States, — is it one that could affect or influence the exercise of governmental functions, — does it have a natural tendency to influence or is it capable of influencing agency decision? Freidus v. United States, 96 U.S.App.D.C. 133, 223 F.2d 598, 601 (1955); Weinstock v. United States, 97 U.S.App.D.C. 365, 231 F.2d 699, 701 (1956); United States v. Quirk, 167 F.Supp. 462 at 464 (E.D.Pa.) aff’d 266 F.2d 26 (3d Cir. 1959); Brandow v. United States, supra; Gonzales v. United States, supra, 286 F.2d at 122.
Applying the test for materiality to this case, we have no difficulty in holding that the falsifications appearing in the indictment, and in the Government’s proof, were material to a matter within the jurisdiction of the Air Force. The district judge did not err in refusing to dismiss the indictment.
We now consider appellant’s contention under 3) above. Appellant complains the district court erred in its instruction on “specific intent” and in refusing to instruct on that subject in accordance with instructions proffered by the appellant. Appellant has failed to include the “proffered” instructions as a part of the record before us. Hence, we are unable to compare the proffered instructions with the instructions given. The court did instruct at some length on the subject of intent, and called to the attention of the jury that specific intent had to be proved in the instant case beyond all reasonable doubt. He instructed the jury on the definitive elements of the terms “wilfully” and “knowingly”. We find no prejudicial error in the instructions given.
Appellant also contends that the court erred when it instructed the jury:
“Now, in the statute which I have read to you makes (sic) no provision for expedient receipts, and it does require that the documents which are filed be not false or fictitious.”
Appellant contends that such instruction :
“Constructs the jury to disregard the testimony of the defendant concerning his reasons for filing the receipts as were submitted with the voucher.”
We do not agree, and we are unable to see any error in the instruction.
Under 4) above, appellant complains that the district court erred in:
“failing and refusing to instruct the jury that materiality of the falsification to a matter within the jurisdiction of the Air Force is an essential element of the offenses set forth in 18 U.S.C. § 1001.”
The court instructed the jury:
“It is necessary in the proof of this case for the government to prove beyond a reasonable doubt the following things in support of counts one and two of the indictment: One, that the travel voucher and the documents attached to it, treating the travel voucher and all of those documents as one instrument, was false in some particular as alleged in the indictment. In this connection, it is not necessary for the the (sic) government to prove that the defendant prepared the travel documents or the vouchers attached to it, if the defendant used that travel voucher and those documents.
“Second, it is required to be proved beyond a reasonable doubt that the defendant knew it was false; that is, the travel voucher or the attached documents.
“Three, that the defendant knowing it to be false presented it to an agency of the United States intending that it be acted upon.
“So, there basically are the three elements of this offense: The falsity, the knowledge of the falsity, and the presentation of the document to an agency of the United States.”
Following the giving of such instruction, and before the jury retired to consider its verdict, counsel for appellant stated his objection to such instruction, and the grounds of the objection, as follows:
“Five, the layout of the elements of the offense included only three, and are inadequate under the Marchisio case in the 9th Circuit which has four elements and, more clearly lays out the elements that we think are proper under this case.
THE COURT: What is the elements (sic) that you are referring to, Mr. Graybill, the materiality?
MR. GRAYBILL: It is a form of materiality, yes.
Also, the Poonian case which is the 9th Circuit ease, that spells them out, or spells out the materiality. The Marchisio case spells out the four elements instead of three, and the Poonian case is the 9th Circuit case on materiality.”
Earlier in this opinion we stated that in this Circuit materiality of the falsification is an essential element of the offenses defined in 18 U.S.C. § 1001, citing Brandow v. United States, supra; and Paritem Singh Poonian v. United States, supra.
In Paritem Singh Poonian v. United States, supra, this Court stated 294 F.2d at p. 75:
“We must first consider the relationship, if any, between the statute and the concept of ‘materiality, i. e., whether the falsification must be ‘material.’ With respect to 18 U.S.C. § 1001, this Court at one time indicated, but did not hold, that materiality is not an essential element of the crime of making a false statement, as distinguished from the crime of concealing a fact. Fisher v. United States, 9 Cir., 1956, 231 F.2d 99, 102. However, in Brandow v. United States, 9 Cir., 1959, 268 F.2d 559, 565, we recognized that ‘this requirement of materiality has been described as essential [to the entire statute] by the greater weight of authority, and for the purposes of this case, we approve and follow such majority rule.’ No good reason suggests itself why our position in Brand-ow, supra, should be limited to that ease. Accordingly, we hold that materiality is an essential element of the crime of making a false statement; i. e., in order to gain a conviction under 18 U.S.C. § 1001, the government must prove that the false statement was ‘material’ as that term has been defined in the case law.”
In appellee’s brief at page 21, appears the following statement:
“[F]or the purposes of this appeal the United States will concur in Appellant’s contention that the rule is that the Government must allege and prove the materiality of the false statement submitted to the Government. Brandow v. United States, 268 F.2d 559 (9th Cir. 1959).”
The court then did not fully or accurately inform the jury as to the elements of the offenses charged in the indictment. No prejudice resulted, however, since under the circumstances of this case the materiality of the representations was established as a matter of law.
The judgment appealed from is affirmed.
. 18 U.S.C. § 1001. Statements or entries generally
“Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing tlie same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.”
Question: What is the specific issue in the case within the general category of "criminal - federal offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other crimes
R. federal offense, but specific crime not ascertained
Answer:
|
sc_casesource
|
031
|
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.
FEDERAL COMMUNICATIONS COMMISSION v. NATIONAL CITIZENS COMMITTEE FOR BROADCASTING et al.
No. 76-1471.
Argued January 16, 1978 —
Decided June 12, 1978
Marshall, J., delivered the opinion of the Court, in which all other Members joined except BreNNAN, J., who took no part in the consideration or decision of the cases.
Erwin N. Griswold argued the cause for petitioners in Nos. 76-1521, 76-1595, 76-1604, 76-1624, and 76-1685. Ernest W. Jennes and Russell H. Carpenter, Jr., filed briefs for petitioners in No. 76-1521; Lee Loevinger, David B. Lytle, and Walter A. Smith, Jr., filed a brief for petitioner in No. 76-1595; Arthur B. Hanson, Aloysius B. McCabe, and Michael Yourshaw filed briefs for petitioner in No. 76-1604; John B. Kenkel and William M. Barnard filed a brief for petitioners in No. 76-1624; and John H. Midlen and John H. Midlen, Jr., filed a brief for petitioners in No. 76-1685.
Daniel M. Armstrong argued the cause for the Federal Communications Commission, petitioner in No. 76-1471 and a respondent in No. 76-1595. With him on the briefs were Sheldon M. Guttmann and Keith H. Fagan.
Deputy Solicitor General Wallace argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Shenefield, Frank H. Easterbrook, Barry Grossman, Robert B. Nicholson, and Bruce E. Fein.
Charles M. Firestone argued the cause for National Citizens Committee for Broadcasting, a respondent in Nos. 76-1471, 76-1521, 76-1604, 76-1624, and 76-1685. With him on the brief were Edward J. Kuhlmann and Nolan A. Bowie.
James A. McKenim, Jr., and Thomas N. Frohock filed a brief for American Broadcasting Companies, Inc., a respondent in Nos. 76-1471, 76-1521, 76-1604, 76-1624, and 76-1685.
R. Russell Eagan, Robert A. Beizer, John P. Southmayd, Thomas H. Wall, Alan C. Campbell, Richard Hildreth, and James E. Greeley filed a brief for Gray Communications Systems, Inc., et ah, respondents in Nos. 76-1471, 76-1521, 76-1595, 76-1604, 76-1624, and 76-1685.
Paul Dobin and Ian D. Volner filed a brief in No. 76-1471 for Louisiana Television Broadcasting Corp., as respondent Under this Court's Rule 21 (4).
Together with No. 76-1521, Channel Two Television Co. et al. v. National Citizens Committee for Broadcasting; No. 76-1595, National Association of Broadcasters v. Federal Communications Commission et al.; No. 76-1604, American Newspaper Publishers Assn. v. National Citizens Committee for Broadcasting et al.; No. 76-1624, Illinois Broadcasting Co., Inc., et al. v. National Citizens Committee for Broadcasting et al.; and No. 76-1685, Post Co. et al. v. National Citizens Committee for Broadcasting et al., also on certiorari to the same court.
Briefs of amici curiae urging reversal were filed by Mr. Griswold and Victor E. Ferrad, Jr., for Dispatch Printing Co: et al, and by J. Roger Woll'enberg, Timothy N. Black, John F. Cooney, and John E. Flick for Times Mirror Co.
Briefs of amici curiae urging affirmance were^ filed by the National Emergency Civil Liberties Foundation, and by Earle K. Moore for the Office of Communication of the United Church of Christ et al.
Mr. Justice Marshall
delivered the opinion of the Court.
At issue in these cases are Federal Communications Commission regulations governing the permissibility of common ownership of a radio or television broadcast station and a daily newspaper located in the same community. Rules Relating to Multiple Ownership of Standard, FM, and Television Broadcast Stations, Second Report and Order, 50 F. C. C. 2d 1046 (1975) (hereinafter cited as Order), as amended upon reconsideration, 53 F. C. C. 2d 589 (1975), codified in 47 CFR §§ 73.35, 73.240, 73.636 (1976). The regulations, adopted after a lengthy rulemaking proceeding, prospectively bar formation or transfer of co-located newspaper-broadcast combinations. Existing combinations are generally permitted to continue in operation. However, in communities in which there is common ownership of the only daily newspaper and the only broadcast station, or (where there is more than one broadcast station) of the only daily newspaper and the only television station, divestiture of either the newspaper or the broadcast station is required within five years, unless grounds for waiver are demonstrated.
The questions for decision are whether these regulations either exceed the Commission’s authority under the Communications Act of 1934, 48 Stat. 1064, as amended, 47 U. S. C. § 151 et seq. (1970 ed. and Supp. V), or violate the First or Fifth Amendment rights of newspaper owners; and whether the lines drawn by the Commission between new and existing newspaper-broadcast combinations, and between existing combinations subject to divestiture and those allowed to continue in operation, are arbitrary or capricious within the meaning of § 10 (e) of the Administrative Procedure Act, 5 U. S. C. i 706 (2) (A) (1976 ed.). For the reasons set forth below, we sustain the regulations in their entirety.
I
A
Under the regulatory scheme established by the Radio Act of 1927, 44 Stat. 1162, and continued in the Communications Act of 1934, no television or radio broadcast station may operate without a license granted by the Federal Communications Commission. 47 U. S. C. § 301. Licensees who wish to continue broadcasting must apply for renewal of their licenses every three years, and the Commission may grant an initial license or a renewal only if it finds that the public interest, convenience, and necessity will be served thereby. §§ 307 (a), (d), 308 (a), 309 (a), (d).
In setting its licensing policies, the Commission has long acted on the theory that diversification of mass media ownership serves the public interest by promoting diversity of program and service viewpoints, as well as by preventing undue concentration of economic power. See, e. g., Multiple Ownership of Standard, FM and Television Broadcast Stations, 45 F. C. C. 1476, 1476-1477 (1964). This perception of the public interest has been implemented over the years by a series of regulations imposing increasingly stringent restrictions on multiple ownership of broadcast stations. In the early 1940’s, the Commission promulgated rules prohibiting ownership or control of more than one station in the same broadcast service (AM radio, FM radio, or television) in the same community. In 1953, limitations were placed on the total number of stations in each service a person or entity may own or control. And in 1970, the Commission adopted regulations prohibiting, on a prospective basis, common ownership of a VHF television station and any radio station serving the same market.
More generally, “[diversification of control of the media of mass communications” has been viewed by the Commission as “a factor of primary significance” in determining who, among competing applicants in a comparative proceeding, should receive the initial license for a particular broadcast facility. Policy Statement on Comparative Broadcast Hearings, 1 F. C. C. 2d 393, 394-395 (1965) (italics omitted). Thus, prior to adoption of the regulations at issue here, the fact that an applicant for an initial license published a newspaper in the community to be served by the broadcast station was taken into account on a case-by-case basis, and resulted in some instances in awards of licenses to competing applicants.
Diversification of ownership has not been the sole consideration thought relevant to the public interest, however. The Commission’s other, and sometimes conflicting, goal has been to ensure “the best practicable service to the public.” Id., at 394. To achieve this goal, the Commission has weighed factors such as the anticipated contribution of the owner to station operations, the proposed program service, and the past broadcast record of the applicant — in addition to diversification of ownership — in making initial comparative licensing decisions. See id., at 395-400. Moreover, the Commission has given considerable weight to a policy of avoiding undue disruption of existing service. As a result, newspaper owners in many instances have been able to acquire broadcast licenses for stations serving the same communities as their newspapers, and the Commission has repeatedly renewed such licenses on findings that continuation of the service offered by the common owner would serve the public interest. See Order, at 1066-1067, 1074-1075.
B
Against this background, the Commission began the instant rulemaking proceeding in 1970 to consider the need for a more restrictive policy toward newspaper ownership of radio and television broadcast stations. Further Notice of Proposed Rulemaking (Docket No. 18110), 22 F. C. C. 2d 339 (1970). Citing studies showing the dominant role of television stations and daily newspapers as sources of local news and other information, id., at 346; see id., at 344 — 346, the notice of rulemaking proposed adoption of regulations that would eliminate all newspaper-broadcast combinations serving the same market, by prospectively banning formation or transfer of such combinations and requiring dissolution of all existing combinations within five years, id., at 346. The Commission suggested that the proposed regulations would serve “the purpose of promoting competition among the mass media involved, and maximizing diversification of service sources and viewpoints.” Ibid. At the same time, however, the Commission expressed “substantial concern” about the disruption of service that might result from divestiture of existing combinations. Id., at 348. Comments were invited on all aspects of the proposed rules.
The notice of rulemaking generated a considerable response. Nearly 200 parties, including the Antitrust Division of the Justice Department, various broadcast and newspaper interests, public interest groups, and academic and research entities, filed comments on the proposed rules. In addition, a number of studies were submitted, dealing with the effects of newspaper-broadcast cross-ownership on competition and station performance, the economic consequences of divestiture, and the degree of diversity present in the mass media. In March 1974, the Commission requested further comments directed primarily to the core problem of newspaper-television station cross-ownership, Memorandum Opinion and Order (Docket No. 18110), 47 F. C. C. 2d 97 (1974), and close to 50 sets of additional comments were filed. In July 1974, the Commission held three days of oral argument, at which all parties who requested time were allowed to speak.
The regulations at issue here were promulgated and explained in a lengthy report and order released by the Commission on January 31, 1975. The Commission concluded, first, that it had statutory authority to issue the regulations under the Communications Act, Order, at 1048, citing 47 U. S. C. §§ 2 (a), 4 (i), 4 (j), 301, 303, 309 (a), and that the regulations were valid under the First and Fifth Amendments to the Constitution, Order, at 1050-1051. It observed that “[t]he term public interest encompasses many factors including 'the widest possible dissemination of information from diverse and antagonistic sources/ ” Order, at 1048, quoting Associated Press v. United States, 326 U. S. 1, 20 (1945), and that “ownership carries with it the power to select, to edit, and to choose the methods, manner and emphasis of presentation,” Order, at 1050. The Order further explained that the prospective ban on creation of co-located newspaper-broadcast combinations was grounded primarily in First Amendment concerns, while the divestiture regulations were based on both First Amendment and antitrust policies. Id., at 1049. In addition, the Commission rejected the suggestion that it lacked the power to order divestiture, reasoning that the statutory requirement of license renewal every three years necessarily implied authority to order divestiture over a five-year period. Id., at 1052.
After reviewing the comments and studies submitted by the various parties during the course of the proceeding, the Commission then turned to an explanation of the regulations and the justifications for their adoption. The prospective rules, barring formation of new broadcast-newspaper combinations in the same market, as well as transfers of existing combinations to new owners, were adopted without change from the proposal set forth in the notice of rulemaking. While recognizing the pioneering contributions of newspaper owners to the broadcast industry, the Commission concluded that changed circumstances made it possible, and necessary, for all new licensing of broadcast stations to “be expected to add to local diversity.” Id., at 1075. In reaching this conclusion, the Commission did not find that existing co-located newspaper-broadcast combinations had not served the public interest, or that such combinations necessarily “spea[k] with one voice” or are harmful to competition. Id., at 1085, 1089. In the Commission's view, the conflicting studies submitted by the parties concerning the effects of newspaper ownership on competition and station performance were inconclusive, and no pattern of specific abuses by existing cross-owners was demonstrated. See id., at 1072-1073, 1085, 1089. The prospective rules were justified, instead, by reference to the Commission's policy of promoting diversification of ownership: Increases in diversification of ownership would possibly result in enhanced diversity of viewpoints, and, given the absence of persuasive countervailing considerations, “even a small gain in diversity” was “worth pursuing.” Id., at 1076, 1080 n. 30.
With respect to the proposed across-the-board divestiture requirement, however, the Commission concluded that “a mere hoped-for gain in diversity” was not a sufficient justification. Id., at 1078. Characterizing the divestiture issues as “the most difficult” presented in the proceeding, the Order explained that the proposed rules, while correctly recognizing the central importance of diversity considerations, “may have given too little weight to the consequences which could be expected to attend a focus on the abstract goal alone.” Ibid. Forced dissolution would promote diversity, but it would also cause “disruption for the industry and hardship for individual owners,” “resulting in losses or diminution of service to the public.” Id., at 1078, 1080.
The Commission concluded that in light of these countervailing considerations divestiture was warranted only in “the most egregious cases,” which it identified as those in which a newspaper-broadcast combination has an “effective monopoly” in the local “marketplace of ideas as well as economically.” Id., at 1080-1081. The Commission recognized that any standards for defining which combinations fell within that category would necessarily be arbitrary to some degree, but “[a] choice had to be made.” Id., at 1080. It thus decided to require divestiture only where there was common ownership of the sole daily newspaper published in a community and either (1) the sole broadcast station providing that entire community with a clear signal, or (2) the sole television station encompassing the entire community with a clear signal. Id., at 1080-1084.
The Order identified 8 television-newspaper and 10 radio-newspaper combinations meeting the divestiture criteria. Id., at 1085, 1098. Waivers of the divestiture requirement were granted sua sponte to 1 television and 1 radio combination, leaving a total of 16 stations subject to divestiture. The Commission explained that waiver requests would be entertained in the latter cases, but, absent waiver, either the newspaper or the broadcast station would have to be divested by January 1,1980. Id., at 1084-1086.
On petitions for reconsideration, the Commission reaffirmed the rules in all material respects. Memorandum Opinion and Order (Docket No. 18110), 53 F. C. C. 2d 589 (1975).
C
Various parties — including the National Citizens Committee for Broadcasting (NCCB), the National Association of Broadcasters (NAB), the American Newspaper Publishers Association (ANPA), and several broadcast licensees subject to the divestiture requirement — petitioned for review of the regulations in the United States Court of Appeals for the District of Columbia Circuit, pursuant to 47 U. S. C. § 402 (a) and 28 U. S. C. §§2342 (1), 2343 (1970 ed. and Supp. V). Numerous other parties intervened, and the United States— represented by the Justice Department — was made a respondent pursuant to 28 U. S. C. §§ 2344, 2348. NAB, ANPA, and the broadcast licensees subject to divestiture argued that the regulations went too far in restricting cross-ownership of newspapers and broadcast stations; NCCB and the Justice Department contended that the regulations did not go far enough and that the Commission inadequately justified its decision not to order divestiture on a more widespread basis.
Agreeing substantially with NCCB and the Justice Department, the Court of Appeals affirmed the prospective ban on new licensing of co-located newspaper-broadcast combinations, but vacated the limited divestiture rules, and ordered the Commission to adopt regulations requiring dissolution of all existing combinations that did not qualify for a waiver under the procedure outlined in the Order. 181 U. S. App. D. C. 1, 555 F. 2d 938 (1977); see n. 11, supra. The court held, first, that the prospective ban was a reasonable means of furthering “the highly valued goal of diversity” in the mass media, 181 U. S. App. D. C., at 17, 555 F. 2d, at 954, and was therefore not without a rational basis. The court concluded further that, since the Commission “explained why it considers diversity to be a factor of exceptional importance,” and since the Commission’s goal of promoting diversification of mass media ownership was strongly supported by First Amendment and antitrust policies, it was not arbitrary for the prospective rules to be “based on [the diversity] factor to the exclusion of others customarily relied on by the Commission.” Id., at 13 n. 33, 555 F. 2d, at 950 n. 33; see id., at 11-12, 555 F. 2d, at 948-949.
The court also held that the prospective rules did not exceed the Commission’s authority under the Communications Act. The court reasoned that the public interest standard of the Act permitted, and indeed required, the Commission to consider diversification of mass media ownership in making its licensing decisions, and that the Commission’s general rule-making authority under 47 U. S. C. §§ 303 (r) and 154 (i) allowed the Commission to adopt reasonable license qualifications implementing the public-interest standard. 181 U. S. App. D. C., at 14-15, 555 F. 2d, at 951-952. The court concluded, moreover, that since the prospective ban was designed to “increas [e] the number of media voices in the community,” and not to restrict or control the content of free speech, the ban would not violate the First Amendment rights of newspaper owners. Id., at 16-17, 555 F. 2d, at 953-954.
After affirming the prospective rules, the Court of Appeals invalidated the limited divestiture requirement as arbitrary and capricious within the meaning of § 10 (e) of the Administrative Procedure Act (APA), 5 TJ. S. C. § 706 (2) (A) (1976 ed.). The court’s primary holding was that the Commission lacked a rational basis for “grandfathering” most existing combinations while banning all new combinations. The court reasoned that the Commission’s own diversification policy, as reinforced by First Amendment policies and the Commission’s statutory obligation to “encourage the larger and more effective use of radio in the public interest,” 47 U. S. C. § 303 (g), required the Commission to adopt a “presumption” that stations owned by co-located newspapers “do not serve the public interest,” 181 U. S. App. D. C., at 25-26, 555 F. 2d, at 962-963. The court observed that, in the absence of countervailing policies, this “presumption” would have dictated adoption of an across-the-board divestiture requirement, subject only to waiver “in those cases where the evidence clearly discloses that cross-ownership is in the public interest.” Id., at 29, 555 F. 2d, at 966. The countervailing policies relied on by the Commission in its decision were, in the court’s view, “lesser policies” which had not been given as much weight in the past as its diversification policy. Id., at 28, 555 F. 2d, at 965. And “the record [did] not disclose the extent fib which divestiture would actually threaten these [other policies].” Ibid. The court concluded, therefore, that it was irrational for the Commission not to give controlling weight to its diversification policy and thus to extend the divestiture requirement to all existing combinations.
The Court of Appeals held further that, even assuming a difference in treatment between new and existing combinations was justifiable, the Commission lacked a rational basis for requiring divestiture in the 16 “egregious” cases while allowing the remainder of the existing combinations to continue in operation. The court suggested that “limiting divestiture to small markets of 'absolute monopoly' squanders the opportunity where divestiture might do the most good,” since “[d]ivestiture... may be more useful in the larger markets.” Id., at 29, 555 F. 2d, at 966. The court further observed that the record “[did] not support the conclusion that divestiture would be more harmful in the grandfathered markets than in the 16 affected markets,” nor did it demonstrate that the need for divestiture was stronger in those 16 markets. Ibid. On the latter point, the court noted that, “[although the affected markets contain fewer voices, the amount of diversity in communities with additional independent voices may in fact be no greater.” Ibid.
The Commission, NAB, ANPA, and several cross-owners who had been intervenors below, and whose licenses had been grandfathered under the Commission’s rules but were subject to divestiture under the Court of Appeals’ decision, petitioned this Court for review. We granted certiorari, 434 U. S. 815 (1977), and we now affirm the judgment of the Court of Appeals insofar as it upholds the prospective ban and reverse the judgment insofar as it vacates the limited divestiture requirement.
II
Petitioners NAB and ANPA contend that the regulations promulgated by the Commission exceed its statutory rule-making authority and violate the constitutional rights of newspaper owners. We turn first to the statutory, and then to the constitutional, issues.
A
(1)
Section 303 (r) of the Communications Act, 47 U. S. C. § 303 (r), provides that “the Commission from time to time, as public convenience, interest, or necessity requires, shall... [m]ake such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of [the Act]See also 47 U. S. C. §154 (i). As the Court of Appeals recognized, 181 U. S. App. D. C., at 14, 555 F. 2d, at 951, it is now well established that this general rulemaking authority supplies a statutory basis for the Commission to issue regulations codifying its view of the public-interest licensing standard, so long as that view is based on consideration of permissible factors and is otherwise reasonable. If a license applicant does not qualify under standards set forth in such regulations, and does not proffer sufficient grounds for waiver or change of those standards, the Commission may deny the application without further inquiry. See United States v. Storer Broadcasting Co., 351 U. S. 192 (1956); National Broadcasting Co. v. United States, 319 U. S. 190 (1943).
This Court has specifically upheld this rulemaking authority in the context of regulations based on the Commission's policy of promoting diversification of ownership. In United States v. Storer Broadcasting Co., supra, we sustained the portion of the Commission’s multiple-ownership rules placing limitations on the total number of stations in each broadcast service a person may own or control. See n. 2, supra. And in National Broadcasting Co. v. United States, supra, we affirmed regulations that, inter alia, prohibited broadcast networks from owning more than one AM radio station in the same community, and from owning “ 'any standard broadcast station in any locality where the existing standard broadcast stations are so few or of such unequal desirability... that competition would be substantially restrained by such licensing.’ ” See 319 U. S., at 206-208; n. 1, supra.
Petitioner NAB attempts to distinguish these cases on the ground that they involved efforts to increase diversification within the boundaries of the broadcasting industry itself, whereas the instant regulations are concerned with diversification of ownership in the mass communications media as a whole. NAB contends that, since the Act confers jurisdiction on the Commission only to regulate “communication by wire or radio,” 47 U. S. C. § 152 (a), it is impermissible for the Commission to use its licensing authority with respect to broadcasting to promote diversity in an overall
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Answer:
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sc_lcdisagreement
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the court opinion mentions that one or more of the members of the court whose decision the Supreme Court reviewed dissented. Focus on whether there exists any statement to this effect in the opinion, for example "divided," "dissented," "disagreed," "split.". A reference, without more, to the "majority" or "plurality" does not necessarily evidence dissent (the other judges may have concurred). If a case arose on habeas corpus, indicate dissent if either the last federal court or the last state court to review the case contained one. If the highest court with jurisdiction to hear the case declines to do so by a divided vote, indicate dissent. If the lower court denies an en banc petition by a divided vote and the Supreme Court discusses same, indicate dissent.
SCHERK v. ALBERTO-CULVER CO.
No. 73-781.
Argued April 29, 1974
Decided June 17, 1974
Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and BlacicmuN, Powell, and RehNQuist, JJ., joined. Douglas, J., filed a dissenting opinion, in which BrenNAN, White, and Marshall, JJ., joined, post, p. 521.
Robert F. Hanley argued the cause for petitioner. With him on the briefs was Lynne E. McNown.
Francis J. Higgins argued the cause for respondent. With him on the brief was A. Charles Lawrence.
Gerald Aksen argued the cause for the American Arbitration Assn, as amicus curiae urging reversal. With him on the brief were Whitney North Seymour, Sol Neil Cor-bin, Rita E. Hauser, Howard M. Holtzmann, Andreas F. Lowenfeld, John R. Stevenson, and Rosemary S. Page.
Mr. Justice Stewart
delivered the opinion of the Court.
Alberto-Culver Co., the respondent, is an American company incorporated in Delaware with its principal office in Illinois. It manufactures and distributes toiletries and hair products in this country and abroad. During the 1960’s Alberto-Culver decided to expand its overseas operations, and as part of this program it approached the petitioner Fritz Scherk, a German citizen residing at the time of trial in Switzerland. Scherk was the owner of three interrelated business entities, organized under the laws of Germany and Liechtenstein, that were engaged in the manufacture of toiletries and the licensing of trademarks for such toiletries. An initial contact with Scherk was made by a representative of Alberto-Culver in Germany in June 1967, and negotiations followed at further meetings in both Europe and the United States during 1967 and 1968. In February 1969 a contract was signed in Vienna, Austria, which provided for the transfer of the ownership of Scherk’s enterprises to Alberto-Culver, along with all rights held by these enterprises to trademarks in cosmetic goods. The contract contained a number of express warranties whereby Scherk guaranteed the sole and unencumbered ownership of these trademarks. In addition, the contract contained an arbitration clause providing that “any controversy or claim [that] shall arise out of this agreement or the breach thereof” would be referred to arbitration before the International Chamber of Commerce in Paris, France, and that “[t]he laws of the State of Illinois, U. S. A. shall apply to and govern this agreement, its interpretation and performance.”
The closing of the transaction took place in Geneva, Switzerland, in June 1969. Nearly one year later Alberto-Culver allegedly discovered that the trademark rights purchased under the contract were subject to substantial encumbrances that threatened to give others superior rights to the trademarks and to restrict or preclude Alberto-Culver’s use of them. Alberto-Culver thereupon tendered back to Scherk the property that had been transferred to it and offered to rescind the contract. Upon Scherk’s refusal, Alberto-Culver commenced this action for damages and other relief in a Federal District Court in Illinois, contending that Scherk’s fraudulent representations concerning the status of the trademark rights constituted violations of § 10 (b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U. S. C. § 78j (b), and Rule 10b-5 promulgated thereunder, 17 CFR § 240.-10b-5.
In response, Scherk filed a motion to dismiss the action for want of personal and subject-matter jurisdiction as well as on the basis of jorum non conveniens, or, alternatively, to stay the action pending arbitration in Paris pursuant to the agreement of the parties. Alberto-Culver, in turn, opposed this motion and sought a preliminary injunction restraining the prosecution of arbitration proceedings. On December 2, 1971, the District Court denied Scherk’s motion to dismiss, and, on January 14, 1972, it granted a preliminary order enjoining Scherk from proceeding with arbitration. In taking these actions the court relied entirely on this Court’s decision in Wilko v. Swan, 346 U. S. 427, which held that an agreement to arbitrate could not preclude a buyer of a security from seeking a judicial remedy under the Securities Act of 1933, in view of the language of § 14 of that Act, barring “[a]ny condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this subchap-ter _” 48 Stat. 84, 15 U. S. C. § 77n. The Court of Appeals for the Seventh Circuit, with one judge dissenting, affirmed, upon what it considered the controlling authority of the Wilko decision. 484 F. 2d 611. Because of the importance of the question presented we granted Scherk’s petition for a writ of certiorari. 414 U. S. 1156.
I
The United States Arbitration Act, now 9 U. S. C. § 1 et seq., reversing centuries of judicial hostility to arbitration agreements, was designed to allow parties to avoid “the costliness and delays of litigation,” and to place arbitration agreements “upon the same footing as other contracts . . . H. R. Rep. No. 96, 68th Cong., 1st Sess., 1, 2 (1924); see also S. Rep. No. 536, 68th Cong., 1st Sess. (1924). Accordingly, the Act provides that an arbitration agreement such as is here involved “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. The Act also provides in § 3 for a stay of proceedings in a case where a court is satisfied that the issue before it is arbitrable under the agreement, and § 4 of the Act directs a federal court to order parties to proceed to arbitration if there has been a “failure, neglect, or refusal” of any party to honor an agreement to arbitrate.
In Wilko v. Swan, supra, this Court acknowledged that the Act reflects a legislative recognition of the “desirability of arbitration as an alternative to the complications of litigation,” 346 U. S., at 431, but nonetheless declined to apply the Act’s provisions. That case involved an agreement between Anthony Wilko and Hayden, Stone & Co., a large brokerage firm, under which Wilko agreed to purchase on margin a number of shares of a corporation’s common stock. Wilko alleged that his purchase of the stock was induced by false representations on the part of the defendant concerning the value of the shares, and he brought suit for damages under § 12 (2) of the Securities Act of 1933, 15 U. S. C. § 771. The defendant responded that Wilko had agreed to submit all controversies arising out of the purchase to arbitration, and that this agreement, contained in a written margin contract between the parties, should be given full effect under the Arbitration Act.
The Court found that “[t] wo policies, not easily reconcilable, are involved in this case.” 346 U. S., at 438. On the one hand, the Arbitration Act stressed “the need for avoiding the delay and expense of litigation,” id., at 431, and directed that such agreements be “valid, irrevocable, and enforceable” in federal courts. On the other hand, the Securities Act of 1933 was “[d]esigned to protect investors” and to require “issuers, underwriters, and dealers to make full and fair disclosure of the character of securities sold in interstate and foreign commerce and to prevent fraud in their sale,” by creating “a special right to recover for misrepresentation . . . .” 346 U. S., at 431 (footnote omitted). In particular, the Court noted that § 14 of the Securities Act, 15 U. S. C. § 77n, provides:
“Any condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this subchapter or of the rules and regulations of the Commission shall be void.”
The Court ruled that an agreement to arbitrate “is a ‘stipulation/ and [that] the right to select the judicial forum is the kind of ‘provision’ that cannot be waived under § 14 of the Securities Act.” 346 U. S., at 434-435. Thus, Wilko’s advance agreement to arbitrate any disputes subsequently arising out of his contract to purchase the securities was unenforceable under the terms of § 14 of the Securities Act of 1933.
Alberto-Culver, relying on this precedent, contends that the District Court and Court of Appeals were correct in holding that its agreement to arbitrate disputes arising under the contract with Scherk is similarly unenforceable in view of its contentions that Scherk’s conduct constituted violations of the Securities Exchange Act of 1934 and rules promulgated thereunder. For the reasons that follow, we reject this contention and hold that the provisions of the Arbitration Act cannot be ignored in this case.
At the outset, a colorable argument could be made that even the semantic reasoning of the Wilko opinion does not control the case before us. Wilko concerned a suit brought under § 12 (2) of the Securities Act of 1933, which provides a defrauded purchaser with the “special right” of a private remedy for civil liability, 346 U. S., at 431. There is no statutory counterpart of § 12 (2) in the Securities Exchange Act of 1934, and neither § 10 (b) of that Act nor Rule 10b-5 speaks of a private remedy to redress violations of the kind alleged here. While federal case law has established that § 10 (b) and Rule 10b-5 create an implied private cause of action, see 6 L. Loss, Securities Regulation 3869-3873 (1969) and cases cited therein; cf. J. I. Case Co. v. Borak, 377 U. S. 426, the Act itself does not establish the “special right” that the Court in Wilko found significant. Furthermore, while both the Securities Act of 1933 and the Securities Exchange Act of 1934 contain sections barring waiver of compliance with any “provision” of the respective Acts, certain of the “provisions” of the 1933 Act that the Court held could not be waived by Wilko’s agreement to arbitrate find no counterpart in the 1934 Act. In particular, the Court in Wilko noted that the jurisdictional provision of the 1933 Act, 15 U. S. C. § 77v, allowed a plaintiff to bring suit “in any court of competent jurisdiction — federal or state — and removal from a state court is prohibited.” 346 U. S., at 431. The analogous provision of the 1934 Act, by contrast, provides for suit only in the federal district courts that have “exclusive jurisdiction,” 15 U. S. C. § 78aa, thus significantly restricting the plaintiff’s choice of forum.
Accepting the premise, however, that the operative portions of the language of the 1933 Act relied upon in Wilko are contained in the Securities Exchange Act of 1934, the respondent’s reliance on Wilko in this case ignores the significant and, we find, crucial differences between the agreement involved in Wilko and the one signed by the parties here. Alberto-Culver’s contract to purchase the business entities belonging to Scherk was a truly international agreement. Alberto-Culver is an American corporation with its principal place of business and the vast bulk of its activity in this, country, while Scherk is a citizen of Germany whose companies were organized under the laws of Germany and Liechtenstein. The negotiations leading to the signing of the contract in Austria and to the closing in Switzerland took place in the United States, England, and Germany, and involved consultations with legal and trademark experts from each of those countries and from Liechtenstein. Finally, and most significantly, the subject matter of the contract concerned the sale of business enterprises organized under the laws of and primarily situated in European countries, whose activities were largely, if not entirely, directed to European markets.
Such a contract involves considerations and policies significantly different from those found controlling in Wilko. In Wilko, quite apart from the arbitration provision, there was no question but that the laws of the United States generally, and the federal securities- laws in particular, would govern disputes arising out of the stock-purchase agreement. The parties, the negotiations, and the subject matter of the contract were all situated in this country, and no credible claim could have been entertained that any international conflict-of-laws problems would arise. In this case, by contrast, in the absence of the arbitration provision considerable uncertainty existed at the time of the agreement, and still exists, concerning the law applicable to the resolution of disputes arising out of the contract.
Such uncertainty will almost inevitably exist with respect to any contract touching two or more countries, each with its own substantive laws and conflict-of-laws rules. A contractual provision specifying in advance the forum in which disputes shall be litigated and the law to be applied is, therefore, an almost indispensable precondition to achievement of the orderliness and predictability essential to any international business transaction. Furthermore, such a provision obviates the danger that a dispute under the agreement might be submitted to a forum hostile to the interests of. one of the parties or unfamiliar with the problem area involved.
A parochial refusal by the courts of one country to enforce an international arbitration agreement would not only frustrate these purposes, but would invite unseemly and mutually destructive jockeying by the parties to secure tactical litigation advantages. In the present case, for example, it is not inconceivable that if Scherk had anticipated that Alberto-Culver would be able in this country to enjoin resort to arbitration he might have sought an order in France or some other country enjoining Alberto-Culver from proceeding with its litigation in the United States. Whatever recognition the courts of this country might ultimately have granted to the order of the foreign court, the dicey atmosphere of such a legal no-man’s-land would surely- damage the fabric of international commerce and trade, and imperil the willingness and ability of businessmen to enter into international commercial agreements.
The exception to the clear provisions of the Arbitration Act carved out by Wilko is simply inapposite to a case such as the one before us. In Wilko the Court reasoned that “[w]hen the security buyer, prior to any violation of the Securities Act, waives his right to sue in courts, he gives up more than would a participant in other business transactions. The security buyer has a wider choice of courts and venue. He thus surrenders one of the advantages the Act gives him . . . .” 346 U. S., at 435. In the context of an international contract, however, these advantages become chimerical since, as indicated above, an opposing party may by speedy resort to a foreign court block or hinder access to the American court of the purchaser’s choice.
Two Terms ago in The Bremen v. Zapata Off-Shore Co., 407 U. S. 1, we rejected the doctrine that a forum-selection clause of a contract, although voluntarily adopted by the parties, will not be respected in a suit brought in the United States “ 'unless the selected state would provide a more convenient forum than the state in which suit is brought.’ ” Id., at 7. Rather, we concluded that a “forum clause should control absent a strong showing that it should be set aside.” Id., at 15. We noted that “much uncertainty and possibly great inconvenience to both parties could arise if a suit could be maintained in any jurisdiction in which an accident might occur or if jurisdiction were left to any place [where personal or in rem jurisdiction might be established]. The elimination of all such uncertainties by agreeing in advance on a forum acceptable to both parties is an indispensable element in international trade, commerce, and contracting.” Id., at 13-14.
An agreement to arbitrate before a specified tribunal is, in effect, a specialized kind of forum-selection clause that posits not only the situs of suit but also the procedure to be used in resolving the dispute. The invalidation of such an agreement in the case before us would not only allow the respondent to repudiate its solemn promise but would, as well, reflect a “parochial concept that all disputes must be resolved under our laws and in our courts. . . . We cannot have trade and commerce in world markets and international waters exclusively on our terms, governed by our laws, and resolved in our courts.” Id., at 9.
For all these reasons we hold that the agreement of the parties in this case to arbitrate any dispute arising out of their international commercial transaction is to be respected and enforced by the federal courts in accord with the explicit provisions of the Arbitration Act. Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded to that court with directions to remand to the District Court for further proceedings consistent with this opinion.
It is so ordered.
The arbitration clause relating to the transfer of one of Scherk’s business entities,, similar to the clauses covering the other two, reads in. its entirety as follows:
“The parties agree that if any controversy or claim shall arise out of this agreement or the breach thereof and either party shall request that the matter shall be settled by arbitration, the matter shall be settled exclusively by arbitration in accordance with the rules then obtaining of the International Chamber of Commerce, Paris, France, by a single arbitrator, if the parties shall agree upon one, or by one arbitrator appointed by each party and a third arbitrator appointed by the other arbitrators. In case of any failure of a party to make an appointment referred to above within four weeks after notice of the controversy, such appointment shall be made by said Chamber. All arbitration proceedings shall be held in Paris, France, and each party agrees to comply in all respects with any award made in any such proceeding and to the entry of a judgment in any jurisdiction upon any award rendered in such proceeding. The laws of the State of Illinois, U. S. A. shall apply to and govern this agreement, its interpretation and performance.”
Scherk had taken steps to initiate arbitration in Paris in early 1971. He did not, however, file a formal request for arbitration with the International Chamber of Commerce until November 9, 1971, almost five months after the filing of Alberto-Culver’s complaint in the Illinois federal court.
The memorandum opinion of the District Court is unreported.
English courts traditionally considered irrevocable arbitration agreements as “ousting” the courts of jurisdiction, and refused to enforce such agreements for this reason. This view was adopted by American courts as part of the common law up to the time of the adoption of the Arbitration Act. See H. R. Rep. No. 96, 68th Cong., lst Sess., 1, 2 (1924); Sturges & Murphy, Some Confusing Matters Relating to Arbitration under the United States Arbitration Act, 17 Law & Contemp. Prob. 580.
Section 2 of the Arbitration Act renders “valid, irrevocable, and enforceable” written arbitration provisions “in any maritime transaction or a contract evidencing a transaction involving commerce . . .,” as those terms are defined in § 1. In Bernhardt v. Poly-graphic Co., 350 U. S. 198, this Court held that the stay provisions of § 3 apply only to the two kinds of contracts specified in §§ 1 and 2. Since the transaction in this case constituted “commerce . . . with foreign nations,” 9 U. S. C. § 1, the Act clearly covers this agreement.
The arbitration agreement involved in Wilko was contained in a standard form margin contract. But see the dissenting opinion of Mr. Justice Frankfurter, 346 U. S. 427, 439, 440, concluding that the record did not show that “the plaintiff [Wilko] in opening an account had no choice but to accept the arbitration stipulation . . . .” The petitioner here would limit the decision in Wilko to situations where the parties exhibit a disparity of bargaining power, and contends that, since the negotiations leading to the present contract took place over a number of years and involved the participation on. both sides of knowledgeable and sophisticated business and legal experts, the Wilko decision should not apply. See also the dissenting opinion of Judge Stevens of the Court of Appeals in this case, 484 F. 2d 611, 615. Because of our disposition of this case on other grounds, we need not consider this contention.
Section 14 of the Securities Act of 1933, 15 U. S. C. § 77n, provides as follows:
"Any condition, stipulation, or provision binding any person acquiring any security to waive compliance with any provision of this subchapter or of the rules and regulations of the Commission shall be void.”
Section 29 (a) of the Securities Exchange Act of 1934, 15 U. S. C. § 78cc (a), provides:
“Any condition, stipulation, or provision binding any person to waive compliance with any provision of this chapter or of any rule or regulation thereunder, or of any rule of an exchange required thereby shall be void.”
While the two sections are not identical, the variations in their wording seem irrelevant to the issue presented in this case.
We do not reach, or imply any opinion as to, the question whether the acquisition of Scherk’s businesses was a security transaction within the meaning of § 10 (b) of the Securities Exchange Act of 1934 and Rule 10b-5. Although this important question was considered by the District Court and the Court of Appeals, and although the dissenting opinion, post, p. 521, seems to consider it controlling, the petitioner did not assign the adverse ruling on the question as error and it was not briefed or argued in this Court.
Together with his motion for a stay pending arbitration, Scherk moved that the complaint be dismissed because the federal securities laws do not apply to this international transaction, cf. Leasco Data Processing Equipment Corp. v. Maxwell, 468 F. 2d 1326 (CA2 1972). Since only the order granting the injunction was appealed, this contention was not considered by the Court of Appeals and is not before this Court.
See Quigley, Accession by the United States to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 70 Yale L. J. 1049,' 1051 (1961). For example, while the arbitration agreement involved here provided that the controversies arising out of the agreement be resolved under “[t]he laws of the State of Illinois,” supra, n. 1, a determination of the existence and extent of fraud concerning the trademarks would necessarily involve an understanding of foreign law on that subject.
The dissenting opinion argues that our conclusion that Wilko is inapplicable to the situation presented in this case will vitiate the force of that decision because parties to transactions with many-more direct contacts with this country than in the present case will nonetheless be able to invoke the “talisman” of having an “international contract.” Post, at 529. Coneededly, situations may arise where the contacts with foreign countries are so insignificant or attenuated that the holding in Wilko would meaningfully apply. Judicial response to such situations can and should await future litigation in concrete cases. This case, however, provides no basis for a judgment that only United States laws and United States courts should determine this controversy in the face of a solemn agreement between the parties that such controversies be resolved elsewhere. The only contact between the United States and the transaction involved here is the fact that Alberto-Culver is an American corporation and the occurrence of some — but by no means the greater part — of the pre-contract negotiations in this country. To determine that “American standards of fairness,” post, at 528, must nonetheless govern the controversy demeans the standards of justice elsewhere in the world, and unnecessarily exalts the primacy of United States law over the laws of other countries.
The dissenting opinion raises the specter that our holding today will leave American investors at the mercy of multinational corporations with .“vast operations around the world . . . .” Post, at 533. Our decision, of course, has no bearing on the scope of the substantive provisions of the federal securities laws for the simple reason that the question is not presented in this case. See n. 8, supra.
Under some circumstances, the designation of arbitration in a certain place might also be viewed as implicitly selecting the law of that place to apply to that transaction. In this case, however, “[t]he laws of the State of Illinois” were explicitly made applicable by the ' arbitration agreement. See n. 1, supra.
In The Bremen we noted that forum-selection clauses “should be given full effect” when “a freely negotiated private international agreement [is] unaffected by fraud . . . .” 407 U. S., at 13, 12. This qualification does not mean that any time a dispute arising out of a transaction is based upon an allegation, of fraud, as in this case, the clause is unenforceable. Rather, it means that an arbitration or forum-selection clause in a contract is not enforceable if the inclusion of that clause in the contract was the product of fraud or coercion. Cf. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395.
Although we do not decide the question, presumably the type of fraud alleged here could be raised, under Art. V of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, see n. 15, infra, in challenging the enforcement of whatever arbitral award is produced through arbitration. Article V (2) (b) of the Convention provides that a country may refuse recognition and enforcement of an award if “recognition or enforcement of the award would be contrary to the public policy of that country.”
Our conclusion today is confirmed by international developments and domestic legislation in the area of commercial arbitration subsequent to the Wilko decision. On June 10, 1958, a special conference of the United Nations Economic and Social Council adopted the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. In 1970 the United States acceded to the treaty, [1970] 3 U. S. T. 2517, T. I. A. S. No. 6997, and Congress passed Chapter 2 of the United States Arbitration Act, 9 U. S. C. § 201 et seq., in order to implement the Convention. Section 1 of the new chapter, 9 U. S. C. § 201, provides unequivocally that the Convention “shall be enforced in United States courts in accordance with this chapter,”
The goal of the Convention, and the principal purpose underlying American adoption and implementation of it, was to encourage the recognition and enforcement of commercial arbitration agreements in international contracts and to unify the standards by which agreements to arbitrate are observed and arbitral awards are enforced in the signatory countries. See Convention on the Recognition and Enforcement of Foreign Arbitral Awards, S. Exec. Doc. E, 90th Cong., 2d Sess. (1968); Quigley, Accession by the United States to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 70 Yale L. J. 1049 (1961). Article II (1) of the Convention provides:
“Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration.”
In their discussion of this Article, the delegates to the Convention voiced frequent concern that courts of signatory countries in which an agreement to arbitrate is sought to be enforced should not be permitted to decline enforcement of such agreements on the basis of parochial views of their desirability or in a manner that would diminish the mutually binding nature of the agreements. See Q. Haight; Convention on the Recognition and Enforcement of Foreign Arbitral Awards: Summary Analysis of Record of United Nations Conference, May/June 1958, pp. 2A-28 (1958).
Without reaching the issue of whether the Convention, apart from the considerations expressed in this opinion, would require of its own force that the agreement to arbitrate be enforced in the present case, we think that this country’s adoption and ratification of the Convention and the passage of Chapter 2 of the United States Arbitration Act provide strongly persuasive evidence of congressional policy consistent with the decision we reach today.
Question: Does the court opinion mention that one or more of the members of the court whose decision the Supreme Court reviewed dissented?
A. Yes
B. No
Answer:
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sc_petitioner
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019
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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.
Richard ARMSTRONGet al., Petitioners
v.
EXCEPTIONAL CHILD CENTER, INC., et al.
No. 14-15.
Supreme Court of the United States
Argued Jan. 20, 2015.
Decided March 31, 2015.
Carl J. Withroe, Boise, ID, for Petitioners.
Edwin S. Kneedlerfor the United States as amicus curiae, by special leave of the Court, supporting the Petitioners.
James M. Piotrowski, Boise, ID, for Respondents.
Lawrence G. Wasden, Attorney General, Brian Kane, Assistant Chief Deputy, Attorney General, Steven L. Olsen, Chief of Civil Litigation, Boise, ID, Carl J. Withroe, Counsel of Record, Deputy Attorney General, Boise, ID, for Petitioners.
James M. Piotrowski, Counsel of Record, Herzfeld & Piotrowski, LLP, Boise, ID, Stephen P. Berzon, Stacey M. Leyton, Matthew J. Murray, Altshuler Berzon LLP, San Francisco, CA, for Respondents.
Lawrence G. Wasden, Attorney General, Steven L. Olsen, Chief of Civil Litigation, Carl J. Withroe, Deputy Attorney General, Boise, ID, Peg M. Dougherty, Deputy Attorney General, Idaho Dept. of Health & Welfare, Boise, ID, for Petitioners.
Opinion
Justice SCALIAdelivered the opinion of the Court, except as to Part IV.
We consider whether Medicaid providers can sue to enforce § (30)(A) of the Medicaid Act. 81 Stat. 911 (codified as amended at 42 U.S.C. § 1396a(a)(30)(A)).
I
Medicaid is a federal program that subsidizes the States' provision of medical services to "families with dependent children and of aged, blind, or disabled individuals, whose income and resources are insufficient to meet the costs of necessary medical services." § 1396-1. Like other Spending Clause legislation, Medicaid offers the States a bargain: Congress provides federal funds in exchange for the States' agreement to spend them in accordance with congressionally imposed conditions.
In order to qualify for Medicaid funding, the State of Idaho adopted, and the Federal Government approved, a Medicaid "plan," § 1396a(a), which Idaho administers through its Department of Health and Welfare. Idaho's plan includes "habilitation services"-in-home care for individuals who, "but for the provision of such services... would require the level of care provided in a hospital or a nursing facility or intermediate care facility for the mentally retarded the cost of which could be reimbursed under the State plan," § 1396n(c) and (c)(1). Providers of these services are reimbursed by the Department of Health and Welfare.
Section 30(A) of the Medicaid Act requires Idaho's plan to:
"provide such methods and procedures relating to the utilization of, and the payment for, care and services available under the plan... as may be necessary to safeguard against unnecessary utilization of such care and services and to assure that payments are consistent with efficiency, economy, and quality of care and are sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area...." 42 U.S.C. § 1396a(a)(30)(A).
Respondents are providers of habilitation services to persons covered by Idaho's Medicaid plan. They sued petitioners-two officials in Idaho's Department of Health and Welfare-in the United States District Court for the District of Idaho, claiming that Idaho violates § 30(A) by reimbursing providers of habilitation services at rates lower than § 30(A) permits. They asked the court to enjoin petitioners to increase these rates.
The District Court entered summary judgment for the providers, holding that Idaho had not set rates in a manner consistent with § 30(A). Inclusion, Inc. v. Armstrong, 835 F.Supp.2d 960 (2011). The Ninth Circuit affirmed.
567 Fed.Appx. 496 (2014). It said that the providers had "an implied right of action under the Supremacy Clause to seek injunctive relief against the enforcement or implementation of state legislation." Id.,at 497 (citing Independent Living Center of Southern Cal. v. Shewry,543 F.3d 1050, 1065 (C.A.9 2008)). We granted certiorari. 573 U.S. ----, 135 S.Ct. 44, 189 L.Ed.2d 897 (2014).
II
The Supremacy Clause, Art. VI, cl. 2, reads:
"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
It is apparent that this Clause creates a rule of decision: Courts "shall" regard the "Constitution," and all laws "made in Pursuance thereof," as "the supreme Law of the Land." They must not give effect to state laws that conflict with federal laws. Gibbons v. Ogden,9 Wheat. 1, 210, 6 L.Ed. 23 (1824). It is equally apparent that the Supremacy Clause is not the "'source of any federal rights,' " Golden State Transit Corp. v. Los Angeles,493 U.S. 103, 107, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989)(quoting Chapman v. Houston Welfare Rights Organization,441 U.S. 600, 613, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979)), and certainly does not create a cause of action. It instructs courts what to do when state and federal law clash, but is silent regarding who may enforce federal laws in court, and in what circumstances they may do so.
Hamilton wrote that the Supremacy Clause "only declares a truth, which flows immediately and necessarily from the institution of a Federal Government." The Federalist No. 33, p. 207 (J. Cooke ed.1961). And Story described the Clause as "a positive affirmance of that, which is necessarily implied." 3 Commentaries on the Constitution of the United States § 1831, p. 693 (1833). These descriptions would have been grossly inapt if the Clause were understood to give affected parties a constitutional (and hence congressionally unalterable) right to enforce federal laws against the States. And had it been understood to provide such significant private rights against the States, one would expect to find that mentioned in the preratification historical record, which contained ample discussion of the Supremacy Clause by both supporters and opponents of ratification. See C. Drahozal, The Supremacy Clause: A Reference Guide to the United States Constitution 25 (2004); The Federalist No. 44, at 306 (J. Madison). We are aware of no such mention, and respondents have not provided any. Its conspicuous absence militates strongly against their position.
Additionally, it is important to read the Supremacy Clause in the context of the Constitution as a whole. Article I vests Congress with broad discretion over the manner of implementing its enumerated powers, giving it authority to "make all Laws which shall be necessary and proper for carrying [them] into Execution." Art. I, § 8. We have said that this confers upon the Legislature "that discretion, with respect to the means by which the powers [the Constitution] confers are to be carried into execution, which will enable that body to perform the high duties assigned to it," McCulloch v. Maryland,4 Wheat. 316, 421, 4 L.Ed. 579 (1819). It is unlikely that the Constitution gave Congress such broad discretion with regard to the enactment of laws, while simultaneously limiting Congress's power over the manner of their implementation, making it impossible to leave the enforcement of federal law to federal actors. If the Supremacy Clause includes a private right of action, then the Constitution requires Congress to permit the enforcement of its laws by private actors, significantly curtailing its ability to guide the implementation of federal law. It would be strange indeed to give a clause that makes federal law supreme a reading that limits Congress's power to enforce that law, by imposing mandatory private enforcement-a limitation unheard-of with regard to state legislatures.
To say that the Supremacy Clause does not confer a right of action is not to diminish the significant role that courts play in assuring the supremacy of federal law. For once a case or controversy properly comes before a court, judges are bound by federal law. Thus, a court may not convict a criminal defendant of violating a state law that federal law prohibits. See, e.g.,Pennsylvania v. Nelson,350 U.S. 497, 499, 509, 76 S.Ct. 477, 100 L.Ed. 640 (1956). Similarly, a court may not hold a civil defendant liable under state law for conduct federal law requires. See, e.g., Mutual Pharmaceutical Co. v. Bartlett,570 U.S. ----, ---- - ----, 133 S.Ct. 2466, 2476-2477, 186 L.Ed.2d 607 (2013). And, as we have long recognized, if an individual claims federal law immunizes him from state regulation, the court may issue an injunction upon finding the state regulatory actions preempted. Ex parte Young,209 U.S. 123, 155-156, 28 S.Ct. 441, 52 L.Ed. 714 (1908).
Respondents contend that our preemption jurisprudence-specifically, the fact that we have regularly considered whether to enjoin the enforcement of state laws that are alleged to violate federal law-demonstrates that the Supremacy Clause creates a cause of action for its violation. They are incorrect. It is true enough that we have long held that federal courts may in some circumstances grant injunctive relief against state officers who are violating, or planning to violate, federal law. See, e.g.,Osborn v. Bank of United States,9 Wheat. 738, 838-839, 844, 6 L.Ed. 204 (1824); Ex parte Young, supra,at 150-151, 28 S.Ct. 441(citing Davis v. Gray,16 Wall. 203, 220, 21 L.Ed. 447 (1873)). But that has been true not only with respect to violations of federal law by state officials, but also with respect to violations of federal law by federal officials. See American School of Magnetic Healing v. McAnnulty,187 U.S. 94, 110, 23 S.Ct. 33, 47 L.Ed. 90 (1902); see generally L. Jaffe, Judicial Control of Administrative Action 152-196 (1965). Thus, the Supremacy Clause need not be (and in light of our textual analysis above, cannot be) the explanation. What our cases demonstrate is that, "in a proper case, relief may be given in a court of equity... to prevent an injurious act by a public officer." Carroll v. Safford,3 How. 441, 463, 11 L.Ed. 671 (1845).
The ability to sue to enjoin unconstitutional actions by state and federal officers is the creation of courts of equity, and reflects a long history of judicial review of illegal executive action, tracing back to England. See Jaffe & Henderson, Judicial Review and the Rule of Law: Historical Origins, 72 L.Q. Rev. 345 (1956). It is a judge-made remedy, and we have never held or even suggested that, in its application to state officers, it rests upon an implied right of action contained in the Supremacy Clause. That is because, as even the dissent implicitly acknowledges, post, at 1391 - 1392 (opinion of SOTOMAYOR, J.) it does not. The Ninth Circuit erred in holding otherwise.
III
A
We turn next to respondents' contention that, quite apart from any cause of action conferred by the Supremacy Clause, this suit can proceed against Idaho in equity.
The power of federal courts of equity to enjoin unlawful executive action is subject to express and implied statutory limitations. See, e.g.,Seminole Tribe of Fla. v. Florida,517 U.S. 44, 74, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). " 'Courts of equity can no more disregard statutory and constitutional requirements and provisions than can courts of law.' " I.N.S. v. Pangilinan,486 U.S. 875, 883, 108 S.Ct. 2210, 100 L.Ed.2d 882 (1988)(quoting Hedges v. DixonCounty,150 U.S. 182, 192, 14 S.Ct. 71, 37 L.Ed. 1044 (1893); brackets omitted). In our view the Medicaid Act implicitly precludes private enforcement of § 30(A), and respondents cannot, by invoking our equitable powers, circumvent Congress's exclusion of private enforcement. See Douglas v. Independent Living Center of Southern Cal., Inc.,565 U.S. ----, ---- - ----, 132 S.Ct. 1204, 1212-1213, 182 L.Ed.2d 101 (2012)(ROBERTS, C.J., dissenting).
Two aspects of § 30(A) establish Congress's "intent to foreclose" equitable relief. Verizon Md., Inc. v. Public Serv. Comm'n of Md.,535 U.S. 635, 647, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002). First, the sole remedy Congress provided for a State's failure to comply with Medicaid's requirements-for the State's "breach" of the Spending Clause contract-is the withholding of Medicaid funds by the Secretary of Health and Human Services. 42 U.S.C. § 1396c. As we have elsewhere explained, the "express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others." Alexander v. Sandoval,532 U.S. 275, 290, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001).
The provision for the Secretary's enforcement by withholding funds might not, by itself,preclude the availability of equitable relief. See Virginia Office for Protection and Advocacy v. Stewart,563 U.S. 247, ---- - ----, n. 3, 131 S.Ct. 1632, 1638-1639, n. 3, 179 L.Ed.2d 675 (2011). But it does so when combined with the judicially unadministrable nature of § 30(A)'s text. It is difficult to imagine a requirement broader and less specific than § 30(A)'s mandate that state plans provide for payments that are "consistent with efficiency, economy, and quality of care," all the while "safeguard[ing] against unnecessary utilization of... care and services." Explicitly conferring enforcement of this judgment-laden standard upon the Secretary alone establishes, we think, that Congress "wanted to make the agency remedy that it provided exclusive," thereby achieving "the expertise, uniformity, widespread consultation, and resulting administrative guidance that can accompany agency decisionmaking," and avoiding "the comparative risk of inconsistent interpretations and misincentives that can arise out of an occasional inappropriate application of the statute in a private action." Gonzaga Univ. v. Doe,536 U.S. 273, 292, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002)(BREYER, J., concurring in judgment). The sheer complexity associated with enforcing § 30(A), coupled with the express provision of an administrative remedy, § 1396c, shows that the Medicaid Act precludes private enforcement of § 30(A) in the courts.
B
The dissent agrees with us that the Supremacy Clause does not provide an implied right of action, and that Congress may displace the equitable relief that is traditionally available to enforce federal law. It disagrees only with our conclusion that such displacement has occurred here.
The dissent insists that, "because Congress is undoubtedly aware of the federal courts' long-established practice of enjoining preempted state action, it should generally be presumed to contemplate such enforcement unless it affirmativelymanifests a contrary intent." Post, at 1392 (emphasis added). But a "long-established practice" does not justify a rule that denies statutory text its fairest reading. Section 30(A), fairly read in the context of the Medicaid Act, "display[s] a[n] intent to foreclose" the availability of equitable relief. Verizon, supra,at 647, 122 S.Ct. 1753. We have no warrant to revise Congress's scheme simply because it did not "affirmatively" preclude the availability of a judge-made action at equity. See Seminole Tribe, supra,at 75, 116 S.Ct. 1114(inferring, in the absence of an "affirmative" statement by Congress, that equitable relief was unavailable).
Equally unavailing is the dissent's reliance on § 30(A)'s history. Section 30(A) was amended, on December 19, 1989, to include what the dissent calls the "equal access mandate," post,at 1394-the requirement that reimbursement rates be "sufficient to enlist enough providers so that care and services are available under the plan at least to the extent that such care and services are available to the general population in the geographic area." § 6402(a), 103 Stat. 2260. There existed at the time another provision, known as the "Boren Amendment," that likewise imposed broad requirements on state Medicaid plans. 42 U.S.C. § 1396a(a)(13)(A)(1982 ed., Supp. V). Lower courts had interpreted the Boren Amendment to be privately enforceable under § 1983. From this, the dissent infers that, when Congress amended § 30(A), it could not "have failed to anticipate" that § 30(A)'s broad language-or at least that of the equal access mandate-would be interpreted as enforceable in a private action. Thus, concludes the dissent, Congress's failure to expressly preclude the private enforcement of § 30(A) suggests it intended not to preclude private enforcement. Post, at 1395.
This argument appears to rely on the prior-construction canon; the rule that, when "judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute" is presumed to incorporate that interpretation. Bragdon v. Abbott,524 U.S. 624, 645, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998). But that canon has no application here. The language of the two provisions is nowhere near identical; and even if it had been, the question whether the Boren Amendment permitted private actions was far from "settled." When Congress amended § 30(A) in 1989, this Court had already granted certiorari to decide, but had not yet decided, whether the Boren Amendment could be enforced through a § 1983 suit. See Baliles v. Virginia Hospital Assn.,493 U.S. 808, 110 S.Ct. 49, 107 L.Ed.2d 18 (1989)(granting certiorari). Our decision permitting a § 1983 action did not issue until June 14, 1990-almost six months after the amendment to § 30(A). Wilder v. Virginia Hospital Assn.,496 U.S. 498, 110 S.Ct. 2510.The existence of a granted petition for certiorari demonstrates quite clearly that the question whether the Boren Amendment could be privately enforced was unsettled at the time of § 30(A)'s 1989 amendment-so that if Congress was aware of the parallel (which is highly doubtful) the course that awareness would have prompted (if any) would not have been legislative silence but rather express specification of the availability of private enforcement (if that was what Congress intended).
Finally, the dissent speaks as though we leave these plaintiffs with no resort. That is not the case. Their relief must be sought initially through the Secretary rather than through the courts. The dissent's complaint that the sanction available to the Secretary (the cut-off of funding) is too massive to be a realistic source of relief seems to us mistaken. We doubt that the Secretary's notice to a State that its compensation scheme is inadequate will be ignored.
IV
The last possible source of a cause of action for respondents is the Medicaid Act itself. They do not claim that, and rightly so. Section 30(A) lacks the sort of rights-creating language needed to imply a private right of action. Sandoval, supraat 286-287, 121 S.Ct. 1511. It is phrased as a directive to the federal agency charged with approving state Medicaid plans, not as a conferral of the right to sue upon the beneficiaries of the State's decision to participate in Medicaid. The Act says that the "Secretary shall approve any plan which fulfills the conditions specified in subsection (a)," the subsection that includes § 30(A). 42 U.S.C. § 1396a(b). We have held that such language "reveals no congressional intent to create a private right of action." Sandoval, supraat 289, 121 S.Ct. 1511; see also Universities Research Assn., Inc. v. Coutu,450 U.S. 754, 772, 101 S.Ct. 1451, 67 L.Ed.2d 662 (1981). And again, the explicitly conferred means of enforcing compliance with § 30(A) by the Secretary's withholding funding, § 1396c, suggests that other means of enforcement are precluded, Sandoval, supra,at 290, 121 S.Ct. 1511.
Spending Clause legislation like Medicaid "is much in the nature of a contract." Pennhurst State School and Hospital v. Halderman,451 U.S. 1, 17, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). The notion that respondents have a right to sue derives, perhaps, from the fact that they are beneficiaries of the federal-state Medicaid agreement, and that intended beneficiaries, in modern times at least, can sue to enforce the obligations of private contracting parties. See 13 R. Lord, Williston on Contracts §§ 37:12-37.13, pp. 123-135 (4th ed.2013). We doubt, to begin with, that providers are intended beneficiaries (as opposed to mere incidental beneficiaries) of the Medicaid agreement, which was concluded for the benefit of the infirm whom the providers were to serve, rather than for the benefit of the providers themselves. See Pharmaceutical Research and Mfrs. of America v. Walsh
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_7_5
|
F
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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 "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).
James S. MURRAY, etc., Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee.
No. 5941.
United States Court of Appeals First Circuit.
Heard March 5, 1962.
Decided April 2, 1962.
James M. Kendrick, Boston, Mass., for appellant.
Earl J. Silbert, Atty., Dept. of Justice, with whom Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson and Melva M. Graney, Attys., Dept. of Justice, W. Arthur Garrity, Jr., U. S. Atty., and William C. Madden, Asst. U. S. Atty., were on brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN, and ALDRICH, Circuit Judges.
ALDRICH, Circuit Judge.
This case, previously before this court, 1 Cir., 292 F.2d 602 (1961), is a suit for refund of alleged overpayment of income tax. The government admitted the overpayment, but alleged that taxpayer had authorized it to transfer that amount to satisfy a deficiency in his sister-in-law’s tax, and that it had done so. Taxpayer denied having consented. The district court, trying the case without jury, found for the government. In so doing the court, very properly, stated where it had placed the burden of proof on the issue of consent, but unfortunately, erred in placing it on the taxpayer. For this error we reversed and remanded. After a second trial the court again found for the government, and taxpayer again appeals.
The case was, in substance, resubmitted to the court on the record of the first trial. The evidence as to whether the taxpayer had agreed to the transfer was highly conflicting. One Duffy, superintendent of delinquent tax accounts testified that on a Saturday in February 1953 there was a conference in taxpayer’s place of business between taxpayer, taxpayer’s accountant, Foster, and himself regarding taxpayer’s and his sister-in-law’s back taxes; that taxpayer stated he wished his sister-in-law’s account cleared up; that in taxpayer’s presence Foster told the witness to transfer a credit standing to taxpayer’s account to his sister-in-law’s; that the witness took this as sufficient consent and did not ask for anything in writing, and subsequently prepared an office memorandum directing this transfer to be made. Foster corroborated Duffy’s testimony except with relation to the memorandum, of which he had no knowledge. Taxpayer denied that this conference took place and denied that he had authorized the transfer at any other time. An accounting branch employee testified that she had made the credit transfer on the books; that she did not recall the circumstances, but that the customary procedure was not to do this without a written consent from the taxpayer. She stated, however, that she would have made the transfer simply on written instructions from her superior, as there was no absolute requirement that there be a document executed by the taxpayer himself.
While this evidence well warranted a finding for the government, we are compelled to conclude that the court’s second decision was no more free from error than the first. The court proceeded as follows. “Initially, the burden of proof, as in all civil cases, is on the plaintiff to establish by a preponderance of the evidence the allegations contained in his complaint.” The court stated that the plaintiff had “met this burden” by presenting the evidence that the government made the transfer “without authority.” We do not understand these statements in the light of our ruling that the burden of proving consent was on the government. The court then seemingly found that it believed the evidence presented by the government witnesses Duffy and Foster. However, it is not entirely clear that this was an out-and-out finding in view of the balance of the opinion, and it is far from clear, if it was, that it was not affected by the erroneous recital as to the plaintiff’s burden of proof.
The court continued, “[T]here is convincing evidence that the transfer [on the government’s books] would not have been made without having the necessary authority, either from the plaintiff in writing or from someone in the department. * * * [The fact that] the transfer was made * * * lays the basis for a presumption of regularity of procedure on the part of the Government. In re Ingersoll Co., 148 F.2d 282 (10th Cir.); Atcheson, Topeka & Sante Fe R. R. Co. v. Elephant Butte Irr. Dist., 110 F.2d 767 (10th Cir.).” After further discussion the court concluded, “The burden of going forward with the production of evidence which would overcome the presumption of regularity on the part of the Government has not been met by the plaintiff.”
Even if we could assume that the court’s remarks about the burden of proof were inadvertent, we cannot accept the consequences which the court attributed to the presumption of regularity. This presumption is, as the court said, simply one of regularity of procedure. See 9 Wigmore, Evidence § 2534 (3d ed. 1940). The fact that the government had made the transfer did not raise a presumption that it had done so on taxpayer’s authority. Rather, as the court said, it merely indicated that the accounting branch, in view of its regular practice, either had taxpayer’s written consent, or written instructions from Duffy. Cf. Santarpio v. New York Life Ins. Co., 1938, 301 Mass. 207, 16 N.E.2d 668. Since Duffy admitted he obtained no writing from taxpayer, the total effect of the “presumption” was that Duffy had given the accounting branch a memorandum. This fact he had already testified to directly.
The question at issue was not whether Duffy had made a memorandum, but was whether he had been authorized to do so. Corroboration of the fact that he had made a memorandum was, at best, merely confirmatory evidence of a prior consistent statement. There was no presumption that “meets and overcomes” anything, as ruled by the court, or which placed any burden of going forward on the plaintiff. In fact, as simple corroboration, it would be closer to say that the whole episode was of no consequence whatever. As Wigmore states, corroboration by proof of other consistent statements would be “both irrelevant and cumbersome to the trial; and is rejected by all Courts.” Id., § 1124. Indeed, it is normally rejected as irrelevant even after the witness has been impeached. Wilson v. Jeffrey, 1951, 328 Mass. 192, 102 N.E. 2d 426; cf. Commonwealth v. Bedrosian, 1924, 247 Mass. 573, 142 N.E. 778; Glover v. Callahan, 1937, 299 Mass. 55, 12 N.E.2d 194.
It was error for the court to hold that the presumption of regularity placed a burden or shifted a burden of any sort. Reading the opinion as a whole we cannot, as the government would have us do, isolate certain sentences and conclude that the court properly found in the government’s favor. There must be a new trial. Perhaps under the circumstances fairness to both parties indicates a fresh view of the evidence by another judge.
Judgment will be entered vacating the findings and judgment of the District Court and remanding the case for further proceedings not inconsistent herewith.
. The court explained in its second ojnnion that what it had “really meant [was] the burden of going forward with the evidence.” We did not so read the first opinion, but if we had it would still have posed difficulties, as will be hereafter developed.
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_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.
CHICAGO, ROCK ISLAND AND PACIFIC RAILWAY COMPANY, a foreign corporation, Appellant, v. Thomas W. HOWELL and Dorothy Howell, his wife, Appellees.
No. 9875.
United States Court of Appeals Tenth Circuit.
Oct. 9, 1968.
John A. Johnson, Oklahoma City, Okl., for appellant.
Donald R. Hackler, McAlester, Okl., for appellees.
Before MURRAH, Chief Judge, and PHILLIPS and HILL, Circuit Judges.
MURRAH, Chief Judge.
In this diversity suit against the Railroad, the Howells claimed that the Railroad’s passing train set the fire which caused the damage to their adjoining land and which proximately caused injuries to Mrs. Howell in her efforts to put out the fire. The jury found that the passing train did set the fire and assessed damages to the property and for Mrs. Howell’s injuries, the amount of which is not in dispute on this appeal. The Railroad meets the critical issue fairly and squarely with the contention that the evidence is wholly insufficient as a matter of law to justify the inference that the Railroad’s train set the fire and that the trial court, therefore, erroneously refused to direct a verdict or judgment n. o. v. If the Railroad does not prevail as a matter of law, it does not seek a new trial.
The Howells, of course, have the burden to affirmatively show that the passing train set the fire. While there is no eyewitness or direct evidence that the train set the fire, it has always been the law in Oklahoma in cases like ours that the origin of the fire may be shown by circumstantial evidence. St. Louis & S. F. Ry. Co. v. Shannon, 25 Okl. 754, 108 P. 401 (1910). And once the fire is satisfactorily traced to the passing train, Oklahoma’s Prairie Fire Statute imposes strict liability for all consequent damages. 2 Okla.Stat. 748 (1961).
The competency and sufficiency of circumstantial evidence have been sustained in a variety of situations, but the common denominator seems to be a tender box right-of-way or a volatile adjacent structure, a favorable wind, a passing train capable of emitting fire-setting sparks, the absence of any other fire-setting agent, the nonexistence of any fire immediately before and the presence of a fire soon after the passage of the train. See Missouri, K. & T. Ry. Co. v. Jackson, 174 F.2d 297 (10th Cir. 1949); Midland Valley R. Co. v. Barton, 191 Okl. 359, 129 P.2d 1007 (1942); Schaff v. Coyle, 121 Okl. 228, 249 P. 947 (1926); St. Louis & S. F. Ry. Co. v. Consumers’ Light & Power Co., 111 Okl. 151, 238 P. 434 (1925); Missouri Pacific R. Co. v. Lamb, 99 Okl. 132, 226 P. 91 (1924); St. Louis & S. F. Ry. Co. v. Shannon, supra; Kansas City, Ft. S. & M. R. Co. v. B. F. Blaker & Co., 68 Kan. 244, 75 P. 71 (1904); Kansas City, Ft. S. & M. R. Co. v. Perry, 65 Kan. 792, 70 P. 876 (1902).
The Howells rely upon these circumstances: the weather was dry; part of the right-of-way was overgrown with inflammable vegetation within several feet of the track; a wind was blowing away from the track toward the Howell farm; a witness testified that he had seen other trains in this immediate vicinity emit sparks from their wheels and stacks and from the loose spikes in the track; another witness testified that soon after the train passed his attention was called to smoke on or near the right-of-way and that when he arrived at the scene about fifteen minutes later, he saw the fire jump the fireguard onto the Howell farm where it spread quickly.
Our case seems most like the old Kansas Perry case, supra, cited and quoted in the Oklahoma parent Shannon case, supra. And it is not materially different from Shannon itself or Barton, supra, which cites a number of Oklahoma cases in which the jury verdict for the landowner was sustained.
While the competency of the circumstantial evidence to prove the plaintiff’s case is controlled by Oklahoma law, its sufficiency to go to the jury is controlled by federal common law. See Simler v. Conner, 372 U.S. 221, 83 S.Ct. 609, 9 L.Ed.2d 691; Gutierrez v. Union Pac. Railroad Co., 372 F.2d 121 (10th Cir. 1966); Christopherson v. Humphrey, 366 F.2d 323 (10th Cir. 1966); Basham v. City Bus Co., 219 F.2d 547, 52 A.L.R.2d 582 (10th Cir. 1955); Diederich v. American News Co., 128 F.2d 144 (10th Cir. 1942); F. W. Woolworth Co. v. Davis, 41 F.2d 342 (10 Cir.). Under the federal rule a directed verdict is authorized only when the evidence is all one way or so overwhelmingly preponderant in favor of the movant that the trial court in the exercise of its sound dis-. cretion would be required to set the verdict aside. See Texaco, Inc. v. Pruitt, 396 F.2d 237 (10th Cir. June 6, 1968); Christopherson v. Humphrey, supra; High Voltage Engineering Corporation v. Pierce, 359 F.2d 33 (10th Cir. 1966); United States v. Hess, 341 F.2d 444 (10th Cir. 1965). In Missouri, K. & T. Ry. Co. v. Jackson (an Oklahoma case), supra, this circuit sustained the competency and sufficiency of circumstantial evidence not materially different from this case and we would have no difficulty sustaining this verdict but for the testimony of the engineer of the passing train to the effect that he saw a fire burning in the vicinity of the right-of-way ahead of the train. The conductor also testified that a fire was burning when the caboose passed the same vicinity about two minutes later.
The Railroad argues with force and reason that the Howells’ circumstantial evidence is conclusively overborne by this positive and uncontradicted testimony. If, of course, the fire was in the vicinity of the right-of-way before the train passed, the train did not set it. Thus, we can only conclude by its verdict that the jury simply did not believe the engineer or thought he was mistaken. Our lawsuit comes down to the fine point of deciding whether the jury may choose to disregard the engineer’s testimony as corroborated by the conductor.
The fundamental rule which makes the jury the sole judge of the weight and credibility of testimony is subject to the caveat that testimony concerning a simple fact capable of contradiction, not incredible, and standing uncontradicted, unimpeached, or in no way discredited by cross examination, must be taken as true. And no judgment can be permitted to stand against it. See Chesapeake & O. R. Co. v. Martin, 283 U.S. 209, 51 S.Ct. 453, 75 L.Ed. 983; see also 62 A.L.R.2d 1191. We have consistently followed this precept. See Cundick v. Broadbent, 383 F.2d 157 (10th Cir. 1967); Perlmutters, Inc. v. Commissioners of Internal Revenue, 373 F.2d 45 (10th Cir. 1967); Nicholas v. Davis, 204 F.2d 200 (10th Cir. 1953); Rapid Transit Co. v. United States, 295 F.2d 465 (10th Cir. 1961) ; Zimmer v. Acheson, 191 F.2d 209 (10th Cir. 1951).
The Howells do not contend that the engineer’s testimony was incapable of contradiction, but they do contend that it was “patently incredible” when viewed in the context of the physical facts. They point to the circumstances upon which they rely to make their case, i. e., the volatile condition of the right-of-way, the favorable wind, and the fact that the engine was the only known or suggested fire-setting agency in the area.
It is also suggested that the engineer’s testimony is further discredited by the testimony of the neighbor who first saw the fire and by cross examination. The neighbor testified that when he arrived at the scene, only one fire was burning— not two as stated by the engineer — and that the fire was south of the fireguard, not north and south as stated by the engineer.
The two versions are literally inconsistent, but the most that can be said of this discrepancy is that it reflects upon the accuracy, not the credibility, of the engineer. Considering the natural and tolerable variances in eyewitness testimony, we find it difficult to say that the witness was impeached by this inconsistency alone. After all, “men do not remember past transactions with exactness and * * * inconsistencies in bits of testimony may indicate truthfulness rather than falsehood.” Bartlett v. United States, 10 Cir., 166 F.2d 920, 932.
But, even so, when the engineer’s testimony is considered in totality of the circumstances, we think it was sufficiently impugned to justify submitting to the jury its accuracy as to time and place. On cross examination, the conductor of the train fixed the location of this particular fire as west of the creek on the Howell farm, where a fire had occurred four months earlier. When closely questioned concerning the exact location of this particular fire, the conductor was unable to remember whether the fire was east or west of the creek. While the engineer was more positive about the exact location, it is noteworthy that two fires did occur on the Howell farm near the Railroad at four month intervals (one in November, 1963, and this one in March, 1964). It is also of some significance that no report of the fire was made, and the engineer was not asked to recall the exact place of it until two months later. The fallibility of human memory being what it is, it is possible that the engineer could have been honestly mistaken about the date and exact location of this particular fire in relation to the previous fire in the same locality.
As in most cases which turn upon the sufficiency of the evidence to make out a submissible case, this one is close and the result may be “subject to the human equation”. Cf. Chicago, Rock Island and Pacific Railroad Company v. McFarlin, 10 Cir., 336 F.2d 1, with Union Pacific Railroad Company v. Lumbert, 401 F.2d 699 (10 CA July, 1968). The trial judge heard the engineer, appraised his testimony, and found it sufficiently vulnerable to go to the jury and we will not superimpose our second-hand judgment on the trial court unless we can say from our objective appraisal of all of the facts and circumstances that his judgment was clearly wrong. High Voltage Engineering Corp. v. Pierce, supra. We cannot so say.
The Railroad’s secondary contention is that even though the train set the fire which caused the property damage, the evidence was insufficient to show that the fire was the proximate cause of Mrs. Howell’s injuries and, therefore, the damages awarded for her injuries should be set aside.
Oklahoma has clearly adopted the majority view that injuries incurred while fighting a fire are proximately caused by the fire. See St. Louis-San Francisco R. Co. v. Ginn, Okl., 264 P.2d 351 (1953). Thus, the only question is whether the evidence was sufficient to show that her injuries were incurred while fighting the fire. Again, we cannot say the evidence was insufficient as a matter of law.
The evidence on this subject is that Mrs. Howell testified she hurt her leg and back by slipping off a tractor and falling over a limb while fighting the fire. There is other evidence that soon after the fire, Mrs. Howell went to a local doctor because of pain in her right leg and occasional pain in her lower back; several months later she was examined at a reputable clinic, but no definite cause was discovered; the pain persisted for two years, during which time she continued to see a local doctor for treatment; again, she returned to the clinic but still no definite cause of pain was diagnosed; finally, three years after the accident, a myelogram study made at the clinic revealed a deformity in her back for which she underwent surgery. Her local doctor and her doctor at the clinic both gave their opinions that Mrs. Howell’s injuries were caused by the accidents incurred while fighting the fire. The clinic doctor said that it was not unusual in back injury cases for the person to have leg pain and that it was sometimes only after repeated observation over a period of time that the real problem in the back became apparent.
In rebuttal to this evidence generally favorable to Mrs. Howell, the Railroad points out the inordinate lengths of time between the injury and the diagnosis, the absence of any mention of back injuries in her initial claims for relief, the negative objective medical findings, the opinions of the psychiatrist about the causes of the symptoms, the meagreness of the medical records from which the doctors testified, and intervening falls as possible causes of the injuries. All these facts and circumstances, however, go to the weight and credibility of the evidence, which is for the jury to decide and certainly not this appellate court. See Meeker v. Rizley, 10 Cir., 346 F.2d 521; Anderson v. Hudspeth Pine, Inc., 299 F.2d 874 (10 Cir.).
The Railroad does object to the admission of testimony by the clinic doctor based on his myelogram study because the study was not introduced into evidence. But this objection ignores the fact that a myelogram study is a fluoroscopic study and, therefore, not preserved in a photograph or X-ray which could be introduced into evidence. See O’Connell v. Westinghouse X-Ray Co., 261 App.Div. 8, 24 N.Y.S.2d 268, 270. We agree with the Railroad’s contention that it is the law in Oklahoma that testimony based on an X-ray should not be admitted without the X-ray because testimony alone would not be the best evidence, Southwestern Cotton Oil Co. v. State Industrial Commission, 167 Okl. 294, 29 P.2d 122, but the best evidence rule does not apply here because there is no “best evidence”. The doctor may testify from his personal knowledge supplied by a scientific instrument. See 3 Wigmore on Evidence § 795 (1940).
The Railroad also objects to the exclusion of testimony by the clinic doctor that the back injury could have been caused by Mrs. Howell falling several times in 1964 and 1965. The basis of this objection, however, is not clear from the brief or the record. Suffice it to say that even assuming prejudicial error was committed in this regard, the consequence could only be a new trial, which the Railroad does not seek.
Affirmed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
sc_issue_10
|
B
|
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.
La CROSSE TELEPHONE CORP. v. WISCONSIN EMPLOYMENT RELATIONS BOARD et al.
NO. 38.
Argued November 18-19, 1948.
Decided January 17, 1949.
Thomas H. Skemp argued the cause for appellant in No. 38. With him on the brief was Quincy H. Hale.
Louis Sherman argued the cause for appellant in No. 39. With him on the brief was Philip B. Collins.
Beatrice Lampert, Assistant Attorney General of Wisconsin, argued the cause for appellees. With her on the brief were Grover L. Broadfoot, Attorney General, and Stewart G. Honeck, Deputy Attorney General. John E. Martin, then Attorney General, was on a statement opposing jurisdiction.
Solicitor General Perlman, David P. Findling, Ruth Weyand and Mozart G. Ratner filed a brief for the United States, as amicus curiae, supporting appellants.
T. McKeen Chidsey, Attorney General, M. Louise Rutherford, Deputy Attorney General, and George L. Reed, Solicitor, Labor Relations Board, filed a brief for the Commonwealth of Pennsylvania, as amicus curiae, in No. 39, urging affirmance.
Donald J. Martin filed a brief for the Communication Workers of America, Division 23, supporting appellees.
Mr. Justice Douglas
delivered the opinion of the Court.
These cases, here on appeal from the Wisconsin Supreme Court, 28 U. S. C. § 344 (a), 43 Stat. 937, 45 Stat. 54, present the question whether a certification of a union by the Wisconsin Employment Relations Board, Wis. Stats. 1947, ch. Ill, as the collective bargaining representative of the employees of appellant company, conflicts with the National Labor Relations Act, 49 Stat. 449, 29 U. S. C. §§ 151 et seq.
Prior to 1945 the appellant company recognized the appellant union as the collective bargaining representative of its plant and traffic department employees. The company and the union entered into a collective bargaining agreement which by its terms was to continue from year to year unless terminated by either party on a specified notice. At a time when certain provisions of that agreement were being renegotiated a rival union, the Telephone Guild, filed a petition with the National Board asking that it certify the collective bargaining representative of these employees. Before the National Board acted, the Guild withdrew its petition and filed a petition with the Wisconsin Board seeking the same relief.
The Wisconsin Board held a hearing and directed that separate elections be held among the employees in the plant, traffic, and office departments of the company to determine whether they desired to be grouped in a single unit or in departmental units and what representative, if any, they desired to elect. After the election the Wisconsin Board certified that the employees in the plant and traffic departments had elected to combine in a single bargaining unit and had chosen the Guild as their collective bargaining representative, and that the employees in the office department had elected to constitute themselves as a separate unit and had chosen not to have any collective bargaining representative.
Each appellant brought an action in the Wisconsin courts to have the certification set aside. The Circuit Court, relying on Bethlehem Steel Co. v. New York Labor Relations Board, 330 U. S. 767, held that the Wisconsin Board was without jurisdiction to issue the certification. The Supreme Court of Wisconsin reversed. 251 Wis. 583, 30 N. W. 2d 241.
First. We are met at the outset with a contention that the certification of the Wisconsin Board which has been sustained by the Wisconsin Supreme Court is not a “final judgment” within the meaning of § 237 (a) of the Judicial Code, 28 U. S. C. § 344. The argument is that under Wisconsin law the certification is no more than a report on the results of an investigation made known to the parties for such use as they may desire, that nothing can be done by any state agency to enforce observance of the certification, that the company cannot be required to bargain with the certified union until and unless an unfair practice charge is lodged against it, and that in such proceeding all the issues involved in the certification proceeding can be relitigated. If that contention is correct, the case is of course not ripe for the intervention of the federal judicial power. See Rochester Telephone Corp. v. United States, 307 U. S. 125, 130-131 and cases cited.
But it has not been shown that the Wisconsin law gives such slight force to the certification. The statute provides that the representative chosen by the employees shall be the exclusive one for purposes of collective bargaining. § 111.05 (1). Provision is made for the board to take a secret ballot of the employees and to certify the results thereof, whenever a question arises concerning the representation of employees in a collective bargaining unit. § 111.05 (3). And the statute contains the following direction: “The board’s certification of the results of any election shall be conclusive as to the findings in-eluded therein unless reviewed in the same manner as provided by subsection (8) of section 111.07 for review of orders of the board.” § 111.05 (3). The certification in these cases has been reviewed and sustained by the highest court of Wisconsin. While that certification is not irrevocable for all time, it fixes a status to which Wisconsin provides a sanction. Eor it is an unfair labor practice for an employer to refuse to bargain with the representative of a majority of the employees. § 111.06 (d). And since § 111.05 (3) makes the certification, subject to judicial review, “conclusive as to the findings included therein,” it would seem that the certification cannot be collaterally attacked in that proceeding or heard de novo. We are pointed to no Wisconsin authority to the effect that it can be.
On this phase of the case we are, indeed, referred to only one Wisconsin authority and that is United R. & W. D. S. E. v. Wisconsin Board, 245 Wis. 636, 15 N. W. 2d 844. But that case merely held that an order of the Wisconsin Board that a referendum of employees by secret ballot be held to determine whether an “all union” agreement was desired was not reviewable. It did not deal with a certificate which was in fact reviewed and sustained by the same court as in the present cases. It is true that in the opinion below, the Wisconsin Supreme Court said that the “mere fact-finding procedure” of the Wisconsin Board in ascertaining the facts, in ordering an election, and in certifying the result “constitutes action in merely its ministerial capacity.” 251 Wis. at 592, 30 N. W. 2d at 245. But that comment was directed to the lack of discretion which the state statute had left the Wisconsin Board. It had no relevance to the effect of the certification under Wisconsin law.
While the Wisconsin Employment Relations Board seems readier than some to reexamine the status of a bargaining representative on the ground that it has lost the support of a majority, it nevertheless appears to be Wisconsin law that a certification is binding upon an employer so long as it stands.
We assumed in Allegheny Ludlum Steel Corp. v. Kelley, 330 U. S. 767, that the certification of a collective bargaining representative, sustained by the highest court of the state, was a final judgment, although it did not of itself command action but like the certification here was enforcible in law only by another proceeding.
We think that is the correct view. The fact that Wisconsin’s certification was not in the form of a command is immaterial. See American Federation of Labor v. Labor Board, 308 U. S. 401, 408. It was not an abstract determination of status. Nor was it merely an interim adjudication in an uncompleted administrative process. It established legal rights and relationships. It told the employer, subject to judicial review, with whom he could not refuse to negotiate without risk of sanctions. The character of the certification was therefore such as to make it reviewable under the appropriate standards for exercise of the federal judicial power.
Second. The Wisconsin Supreme Court concluded that the Wisconsin Board could exercise jurisdiction here until and unless the National Board undertook to determine the appropriate bargaining representative or unit of representation of these employees. That view was urged on us in the like cases coming here under a New York statute. In Bethlehem Steel Co. v. New York Labor Relations Board, supra, at 776, we rejected that argument, saying:
“The State argues for a rule that would enable it to act until the federal board had acted in the same case. But we do not think that a case by case test of federal supremacy is permissible here.”
We went on to point out that the National Board had jurisdiction of the industry in which those particular employers were engaged and had asserted control of their labor relations in general. Both the state and the federal statutes had laid hold of the same relationship and had provided different standards for its regulation. Since the employers in question were subject to regulation by the National Board, we thought the situation too fraught with potential conflict to permit the intrusion of the state agency, even though the National Board had not acted in the particular cases before us.
Those considerations control the present cases. This employer is concededly engaged in interstate commerce; and the industry is one over which the National Board has consistently exercised jurisdiction. The Wisconsin Act provides that a majority of employees in a single craft, division, department or plant of an employer may elect to constitute that group a separate bargaining unit. § 111.02 (6). The federal act leaves that matter to the discretion of the board. When under those circumstances the state board puts its imprimatur on a particular group as the collective bargaining agent of employees, it freezes into a pattern that which the federal act has left fluid. In practical effect the true measure of conflict between the state and federal scheme of regulation may not be found only in the collision between the formal orders that the two boards may issue. We know that administrative practice also disposes of cases in which, no order has been entered. Disposition of controversies on an administrative as distinguished from a formal basis will often reflect the attitudes of the National Board which have not been reduced to orders in those specific cases. A certification by a state board under a different or conflicting theory of representation may therefore be as readily disruptive of the practice under the federal act as if the orders of the two boards made a head-on collision. These are the very real potentials of conflict which lead us to allow supremacy to the federal scheme even though it has not yet been applied in any formal way to this particular employer. The problem of employee representation is a sensitive and delicate one in industrial relations. The uncertainty as to which board is master and how long it will remain such can be as disruptive of peace between various industrial factions as actual competition between two boards for supremacy. We are satisfied with the wisdom of the policy underlying the Bethlehem case and adhere to it.
The result we have reached is not changed by the Labor Management Relations Act of 1947, 61 Stat. 136, 29 U. S. C. Supp. I, §§ 141 et seq. That Act grants the National Board authority under specified conditions to cede its jurisdiction to a state agency. But it does not appear that there has been any cession of jurisdiction to Wisconsin by the National Board in representation proceedings.
Reversed.
That review extends to administrative decisions affecting legal rights, duties, and privileges whether affirmative or negative in form, § 227.15, and is allowed any person aggrieved and directly affected by the administrative decision. § 227.16.
Section 111.05 (4) provides “The fact that one election has been held shall not prevent the holding of another election among the same group of employes, provided that it appears to the board that sufficient reason therefor exists.”
Section 111.06(d) also provides that where an employer files with the board a petition requesting a determination as to majority representation “he shall not be deemed to have refused to bargain until an election has been held and the result thereof has been certified to him by the board.” But we are pointed to no authority holding that where a certification has already been made, a recertification can be demanded. Section 111.05 (3), indeed, makes the certification “conclusive.”
See § 111.05 (4), supra, note 2; Rydahl’s Launderers & Cleaners, Wis. E. R. B. Decision No. 677 (1944); UAW-CIO and Four Wheel Drive Auto Co., Wis. E. R. B. Decision No. 687 (1944); cf. AUA and Garton Toy Co., Wis. E. R. B. Decision No. 1238 (1947); Killingsworth, State Labor Relations Acts 161-62 (1948).
See In re United Brotherhood of Carpenters & Joiners, 2 L. R. R. M. 894 (Wis. County Cir. Ct., 1938); In re Charles Abresch Co., 3 L. R. R. M. 639 (Wis. E. R. B. Decision No. 744, 1938); cf. Wisconsin Board v. Hall Garage Corp., 18 L. R. R. M. 2419 (Wis. County Cir. Ct., 1946).
In Allegheny Ludlum Steel Corp. v. Kelley, supra, suit had been brought in the state court for a declaratory judgment to restrain the state labor board from determining a representative of plaintiff’s supervisory employees to bargain collectively with the plaintiff. Under New York law the labor board had authority to hold elections to determine employee representation and to certify the results. 30 McKinney’s Cons. Laws § 705. Certification in itself, as in the instant case, did not impose a legal penalty. Suit had to be brought in an unfair labor practice proceeding to accomplish such result. 30 Ibid. § 706. Refusal to bargain with the representative of the employees was an unfair labor practice. 30 Ibid. §704 (6). Even though the New York law did not state, as does the Wisconsin law, that certification by the board was conclusive, we considered a decision of the New York court approving the jurisdiction of the state board to conduct a representative proceeding a final judgment ripe for our consideration.
See Elyria Telephone Co., 58 N. L. R. B. 402; Newark Telephone Co., 59 N. L. R. B. 1408; People’s Telephone Corp., 69 N. L. R. B. 540; Ohio Telephone Service Co., 72 N. L. R. B. 488.
The appellant company operates a telephone business in La Crosse County, Wisconsin. It is a subsidiary of the Central Telephone Co., whose subsidiaries operate telephone businesses in many states. The concession that the company is engaged in interstate commerce is based on the interstate telephone calls which it handles.
“The Board shall decide in each case whether, in order to insure to employees the full benefit of their right to self-organization and to collective bargaining, and otherwise to effectuate the policies of this Act, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof.”
Moreover, the Wisconsin Act excludes from the definition of employee those working in a supervisory capacity. §111.02(3). They were, however, included under the protection of the federal act as then written. Packard Motor Co. v. Labor Board, 330 U. S. 485. The definition of employee under the Wisconsin Act also excludes certain strikers and others who have not been at work for certain periods. §111.02(3). These latter exceptions likewise do not in the main square with the definition of employee contained in § 2 (3) of the federal act.
U. S. Const. Art. VI.
Section 10 (a) of the National Labor Relations Act, as amended, now provides in part: “the Board is empowered by agreement with any agency of any State or Territory to cede to such agency jurisdiction over any cases in any industry (other than mining, manufacturing, communications, and transportation except where predominantly local in character) even though such cases may involve labor disputes affecting commerce, unless the provision of the State or Territorial statute applicable to the determination of such cases by such agency is inconsistent with the corresponding provision of this Act or has received a construction inconsistent therewith.”
The agreement of August 27, 1948, between the National Board and the Wisconsin Board is restricted to the implementation of § 14 (b) of the federal act. See 22 L. R. R. 268.
Question: What is the issue of the decision?
A. federal-state ownership dispute (cf. Submerged Lands Act)
B. federal pre-emption of state court jurisdiction
C. federal pre-emption of state legislation or regulation. cf. state regulation of business. rarely involves union activity. Does not involve constitutional interpretation unless the Court says it does.
D. Submerged Lands Act (cf. federal-state ownership dispute)
E. national supremacy: commodities
F. national supremacy: intergovernmental tax immunity
G. national supremacy: marital and family relationships and property, including obligation of child support
H. national supremacy: natural resources (cf. natural resources - environmental protection)
I. national supremacy: pollution, air or water (cf. natural resources - environmental protection)
J. national supremacy: public utilities (cf. federal public utilities regulation)
K. national supremacy: state tax (cf. state tax)
L. national supremacy: miscellaneous
M. miscellaneous federalism
Answer:
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songer_respond1_7_2
|
C
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "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").
Joseph TOUSSAINT, et al., Plaintiffs-Appellees, v. Samuel YOCKEY, Acting Director of Corrections, Reginald Pulley, Warden, San Quentin Prison; Robert Rees, Superintendent, Deuel Vocational Institution, Alan Stagner, Superintendent, Correctional Training Facility (Soledad), Defendants-Appellants.
Nos. 83-1678, 83-1775.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 14, 1983.
Decided Jan. 5, 1984.
Sanford Jay Rosen, Rosen & Remcho, San Francisco, Cal., James Smith, Smith, Sne-deker & Comiskey, Sacramento, Cal., Bernard Zimmerman, Sarah Flanagan, Mark Chavez, Andrea Resnick, Sidney M. Wolin-sky, Morris J. Bailer, David Lew, San Francisco, Cal., Michael Satris, San Quentin, Cal., for plaintiffs-appellees.
William D. Stein, Karl Mayer, John Van de Kamp, San Francisco, Cal., for defendants-appellants.
Before TRASK, and CANBY, Circuit Judges, and SOLOMON , District Judge.
Honorable Gus J. Solomon, United States Senior District Judge for the District of Oregon, sitting by designation.
CANBY, Circuit Judge:
Plaintiffs are a class of approximately 2,000 prisoners confined in administrative segregation in four California State Prisons: Deuel Vocational Institution, Folsom Prison, San Quentin Prison, and Soledad Correctional Training Facility. Defendants are the wardens of the four prisons and the California Director of Corrections. Plaintiffs sought relief on two claims. In Wright v. Enomoto, 462 F.Supp. 397 (N.D.Cal.1976), aff’d, 434 U.S. 1052, 98 S.Ct. 1223, 55 L.Ed.2d 756 (1978) (“ Wright F), a three-judge panel convened pursuant to 28 U.S.C. § 2281, now repealed, granted relief on the first claim. The court concluded that the due process clause of the fourteenth amendment required certain procedures before a prisoner could be placed in administrative segregation.
This appeal involves the second claim for relief, based on the eighth amendment’s prohibition of cruel and unusual punishment. A prior preliminary injunction, issued on November 3, 1980, was vacated by this court in Wright v. Rushen, 642 F.2d 1129 (9th Cir.1981) (“Wright II"). In Wright II we held that the district court erred in relying on a “totality of conditions” approach in analyzing the constitutionality of prison conditions.
On remand the district court entered detailed findings of fact and concluded that even when analyzed individually, many of the current conditions in administrative segregation at three of the institutions are probably unconstitutional. Determining that plaintiffs had demonstrated a probability of success on the merits and that the balance of hardships tipped sharply in their favor, the court entered a new preliminary injunction. Defendants challenge the district court’s conclusions on several grounds, each of which will be discussed in turn. We affirm all of the preliminary injunction except the provision relating to food services.
I. Double Celling
The district court found that prisoners who are confined in administrative segregation live in cells which in general are approximately six feet wide and eight to nine feet long. Each cell is furnished with a bed of some sort, a thin mattress, a pillow, a blanket, a coverless toilet and a sink. Each inmate is supplied a cardboard box in which to keep his personal belongings. Shelf space is minimal or in some cases non-existent. Many of the cells have no windows. The district court found that double celling exacerbated the already bad conditions existing in these cells and engendered violence, tension and psychiatric problems. It therefore concluded that the practice of double-celling inmates in the housing units challenged in this action could not withstand constitutional scrutiny. In its preliminary injunction the court prohibited involuntary double celling for more than thirty days in any twelve-month period. It also limited double celling to cells larger than fifty square feet, in which a second bed, cot or bunk is provided. .
In Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981), the Supreme Court held that in and of itself double-celling is not unconstitutional. The institution involved in Rhodes was described as “a top-flight, first-class facility.” The cells averaged 63 square feet and contained a cabinet-type night stand, a cabinet, shelf and radio built into one of the walls, a wall-mounted sink with hot and cold running water and a toilet that the inmate could flush from inside the cell. All of the cells had a heating and air circulation vent near the ceiling and more than half of them had a window that the inmates could open and close. All cells used to house two inmates were supplied with two-tiered bunk beds.
As found by the district court, conditions in the units at issue in this case are very different. The facts already set forth make clear that the differences are substantial. One is particularly crucial. In Rhodes the district court found that there was no evidence that double celling caused greater violence. 452 U.S. at 343, 101 S.Ct. at 2397. In contrast, the district court in this case found that double-celling engenders violence, tension and psychiatric problems. That finding, along with others regarding cell conditions, clearly supports the double celling portion of the preliminary injunction. See id. at 349 n. 14, 101 S.Ct. at 2400 n. 14.
II. Exercise
The district court found that many of the inmates were confined to their cells for as much as 23V2 hours a day. It concluded that the state’s failure to provide sufficient exercise raised serious constitutional issues. In its preliminary injunction the court required the state to provide each prisoner with outdoor exercise. In Spain v. Procunier, 600 F.2d 189, 199-200 (9th Cir.1979), we held that, on the facts presented, the denial of outdoor exercise constituted cruel and unusual punishment. Several factors present in Spain combined to make outdoor exercise necessary. The prisoners were in continuous segregation, spending virtually all their time in their cells; their contact with other persons was minimal; they lived in an atmosphere of fear and apprehension; and they were confined under degrading conditions without affirmative programs of training or rehabilitation. Id. We deemed it important that the inmates in question were not temporarily in segregation: they had already been there over four years. Id. at 200.
Similar findings were made in this case. Although the length of confinement in segregation varies, almost 1,000 inmates have been assigned to administrative segregation for over one year. Given those findings, the district court did not err in concluding that the denial of outside exercise raised a substantial constitutional question and that plaintiffs would probably succeed on the merits of that issue.
Defendants argue that the district court erred in requiring them to afford exercise beyond that required by their own regulations without holding those regulations unconstitutional. The state regulation governing inmate exercise requires less exercise than the preliminary injunction and permits indoor exercise. Cal.Admin.Code Tit. 15 § 3343(h). Defendants’ argument misses the point. The district court did not invalidate the state regulation; it merely held that, given the circumstances of this case, the denial of outdoor exercise was probably unconstitutional. See Wright v. Rushen, 642 F.2d 1129, 1133 (9th Cir.1981) (comparing Spain v. Procunier, which required outdoor exercise where prisoners were otherwise confined in small cells twenty-four hours a day, with Clay v. Miller, 626 F.2d 345, 347 (4th Cir.1980), which did not require outdoor exercise where prisoners had access to dayroom eighteen hours a day).
III. Food Service
The preliminary injunction provides that: “The types and quantities of food served shall be the same as that which is provided for general population inmates except that a sack lunch is permitted. All food shall be prepared, stored, and served under sanitary conditions.” Defendants correctly point out that there is no factual support in the district court’s findings for that portion of the injunction. That portion of the court’s order is vacated.
IV. Procedural Safeguards
The district court found that despite the court’s holding in Wright I, plaintiffs continue to be arbitrarily placed and retained in segregated housing. The court found that defendants were violating the Wright I court’s injunction in various ways. Specifically, the court found that:
(1) prisoners continue to be placed in administrative segregation without any written reason for days well beyond the 48-hour requirement specified [in the state’s] regulations; (2) written explanation for placement in administrative segregation is often vague and eonclusory in terms; (3) counsel-substitute (staff assistant) to aid in the preparation of the prisoners cases is often denied, even when assistance is clearly warranted; (4) access to investigating employees is often denied to prisoners; (5) investigating reports may be inadequate or not be received until after the hearing; and (6) explanations of reasons for the decision reached and references to the evidence in support of the decision are inadequate.
The court also found that the hearings which were provided were defective in various respects:
(1) the ten-day time limitation within which the prisoner must have his hearing, as mandated by [state] regulations, is often disregarded; (2) requests by inmates for witnesses are often denied without reason; (3) confidential information may be admitted without a showing as to its reliability beyond eonclusory representations by officials, and (4) the prisoner may be involuntarily absent from the hearing or, as in one reported case, there may not even be a hearing.
In Part III of the injunction the district court imposed various procedural requirements to correct these practices. The court required every prisoner to be released from administrative segregation at the expiration of his minimum release date or twelve months of confinement, whichever is shorter, unless defendants were able to establish the prisoner’s dangerousness at a hearing. The court specified the type of evidence which would be admissible at such a hearing as well as the criteria to be applied in determining whether to retain a prisoner in segregation.
The remedy ordered in Part III does not, strictly speaking, correspond in all respects with the violations of the Wright I court’s injunction found by the district court here. The court imposed a hearing twelve months down the line to remedy an arbitrary initial decision to segregate a prisoner. Part III does, however, serve as a readily enforceable check on defendants’ power to violate the earlier injunction. The district court’s order was a valid exercise of that court’s power to effectuate the prior order of the three judge court in Wright 1. In fashioning a remedy for those violations the district court had the authority to go beyond earlier measures and enter a comprehensive order to insure against the risk of continued non-compliance. Hutto v. Finney, 437 U.S. 678, 687 & n. 9, 98 S.Ct. 2565, 2571 & n. 9, 57 L.Ed.2d 522 (1978); Hoptowit v. Ray, 682 F.2d 1237, 1247 (9th Cir.1982).
V. Abstention
Defendants argue that the district court should have abstained from exercising jurisdiction in this case. In Manney v. Cabell, 654 F.2d 1280 (9th Cir.1980), cert. denied, 455 U.S. 1000, 102 S.Ct. 1630, 71 L.Ed.2d 866 (1982), we vacated a district court judgment because the court exercised jurisdiction over an action challenging conditions at Central Juvenile Hall in Los Angeles.
In Manney we concluded that the three exceptional circumstances required for application of the Pullman doctrine (Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941)) were present. The complaint touched on a sensitive area of social policy into which the federal courts do not lightly intrude. In addition to alleging federal constitutional violations, the complaint asserted that the conditions complained of violated .two unusual state statutes which required the state to provide “custody, care, and discipline as nearly as possible equivalent to that which should have been given by [the juvenile’s] parents.” Cal.Welf. & InstCode § 202(a). The detention center was to “be conducted in all respects as nearly like a home as possible.” Id. at § 851. Because we were uncertain how the California courts would construe these provisions, we decided to postpone constitutional adjudication, pending state decision.
No such unusual statutes are involved in this case. Although the district court did discuss several state law provisions, the rights claimed to have been violated are plainly federal in origin and nature. The fact that state law is also implicated does not require the district court to abstain. See Ramos v. Lamm, 639 F.2d 559, 564 & n. 5 (10th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 239 (1981). The decision whether to abstain “involves a ‘discretionary exercise of a court’s equity power,’ the propriety of which [must] be determined on a case-by-case basis.” Manney, 654 F.2d at 1284 (quoting Baggett v. Bullitt, 377 U.S. 360, 375, 84 S.Ct. 1316, 1324, 12 L.Ed.2d 377 (1964)). Abstention is not favored in section 1983 cases. Canton v. Spokane School District No. 81, 498 F.2d 840, 845-46 (9th Cir.1974). The district court did not err in refusing to abstain here.
VI. Pendent Jurisdiction
Defendants argue that the district court erroneously exercised pendent jurisdiction as an excuse to broaden the scope of its review beyond that permissible under the eighth or fourteenth amendments. Noting that many of the conclusions of law track state law provisions, defendants argue that the court used pendent jurisdiction as a means to return to a “totality of conditions” approach and assume control of the prisons.
We disagree. Although the district court did rely in part on state law provisions, it based its conclusions of law on federal constitutional standards. As we directed in Wright II, 642 F.2d at 1132-33, the court simply relied on state law provisions, as well as expert opinions and professional standards, as aids in determining whether contemporary standards of decency had been met. See, e.g., Ramos, 639 F.2d at 567 n. 10. The court did not apply a “totality of conditions” approach. It considered the separate conditions of confinement and found that they violated the eighth amendments proscription of cruel and unusual punishment. In some cases the court necessarily took into account the effect of other conditions on the condition under consideration. Conditions of “confinement [do] not exist in isolation; [a] court must consider the effect of each condition in the context of the prison environment, especially when the ill effects of particular conditions are exacerbated by other related conditions.” Hoptowit, 682 F.2d at 1247. Finally, the district court carefully considered the impact of its order on security conditions, as well as the cost of carrying the order out. Its findings on those points are not clearly erroneous.
CONCLUSION
The district court did not abuse its discretion in concluding that the conditions it found to exist at the institutions affected by its preliminary injunction were of doubtful constitutionality, that the plaintiffs would probably succeed on the merits, and that the balance of hardships tipped sharply in their favor. However, the district court failed to enter findings to support its order regarding food service. We, therefore, AFFIRM all but the food service portion of the preliminary injunction.
AFFIRMED IN PART AND VACATED IN PART.
. Folsom Prison was not included in the preliminary injunction at issue in this appeal.
. Defendants argue that the district court erred by over-generalizing. They argue that fifteen separate confinement units are affected by the preliminary injunction but that the evidence of constitutional violations cited by the court in its findings of fact did not apply to all of the units. There is no merit to this argument. The court made findings as to the conditions at all three prisons affected by the preliminary injunction. The court did not abuse its discretion by failing to string cite references to each of the units after each of its findings.
. We do not accept defendants’ argument that, even if the district court’s ban on double-celling is justified under current conditions, it is not justified under the conditions as ordered by the court. That argument goes only to the district court’s finding that the practice of double-cell-ing exacerbated the already bad cell conditions. It says nothing about the court’s finding that in and of itself double-celling in these cells engenders violence. Moreover, if in the future conditions are shown to have changed as a result of the district court’s order, defendants can apply for a modification of this injunction.
. The regulation relied on was enacted in response to the Wright I injunction. As was the case with the other procedural safeguards violated by defendants, the court found the forty-eight-hour limit originated in the injunction.
. Part III of the injunction provides in part:
1. A prisoner shall be released from administrative segregation in a security housing unit at the expiration of his Minimum Eligible Release Date or at the expiration of twelve (12) months of consecutive confinement in security housing units, whichever is shorter, unless, before said period expires, he is afforded all the hearing rights that attend a prisoner’s initial placement in administrative segregation and defendants show at such hearing, on the basis of the prisoner’s behavior, that his release would severely endanger the lives of inmates or staff or the security of the institution. Such behavior shall be factually documented or based on reliable information as set forth in this section .... A prisoner shall not be involuntarily retained in any other administrative segregation unit unless, before the expiration of twelve (12) months of consecutive confinement, he is afforded all the hearing rights that attend a prisoner’s initial placement in administrative segregation and unless at this hearing defendants show that release of the prisoner from segregation would endanger the prisoner’s own safety or the safety of others; or that release would jeopardize the integrity of an investigation into suspected criminal activity or serious misconduct. If the decision is based, in whole or in part, on gang membership, membership must be proven by reasonably convincing evidence of present and active allegiance to a gang.
. Because we hold part III of the injunction to be a valid exercise of the court’s power to enforce a previously issued injunction, we need not address the court’s independent conclusion that defendants’ practices violate both the eighth and fourteenth amendments. We note, however, that in and of itself, misclassification is not a violation of the eighth amendment. Hoptowit v. Ray, 682 F.2d 1237, 1256 (9th Cir.1982). Even an indeterminate sentence to punitive isolation does not without more constitute cruel and unusual punishment. Hutto v. Finney, 437 U.S. 678, at 686, 98 S.Ct. 2565, at 2571, 57 L.Ed.2d 522 (1978); Gibson v. Lynch, 652 F.2d 348, 352 (3d Cir.1981), cert. denied, - U.S. -, 103 S.Ct. 3123, 77 L.Ed.2d 1375 (1983).
Moreover, Hewitt v. Heims, - U.S. -, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983) casts some doubt on the court’s conclusion that defendants’ practices violate the fourteenth amendment. In Hewitt the court held that an informal, non-adversary evidentiary review is sufficient to support an inmate’s placement in administrative confinement. Moreover, the court acknowledged the prison administrators’ need to base their decisions on generalized information.
In the volatile atmosphere of a prison, an inmate may easily constitute an unacceptable threat to the safety of other prisoners and guards even if he himself has committed no misconduct; rumor, reputation, and even more imponderable factors may suffice to spark potentially disastrous incidents. The judgment of prison officials in this context, ... turns largely on “purely subjective evaluations and on predictions of future behavior,
Id. at-, 103 S.Ct. at 873 (quoting Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 464, 101 S.Ct. 2460, 2464, 69 L.Ed.2d 158 (1981)). In passing on plaintiffs’ request for a permanent injunction the district court may wish to reconsider its evaluation of plaintiffs’ procedural claims and, if necessary, decide whether the evidence continues to warrant imposition of the procedural requirements adopted to insure compliance with the Wright I court’s injunction.
.The issue before the district court was simply whether the Wright I order had been violated. Thus, it was not necessary to reconvene a three judge court. See Commission v. Brashear Lines, 312 U.S. 621, 625, 61 S.Ct. 784, 786, 85 L.Ed. 1083 (1941). Hamilton v. Nakal, 453 F.2d 152, 160-61, (9th Cir.), cert. denied, 406 U.S. 945, 92 S.Ct. 2044, 32 L.Ed.2d 332 (1972).
. On May 27, 1983, defendants filed a motion to strike the brief for amici curiae, the Bar Association of San Francisco and the San Francisco’s Lawyer’s Committee for Urban Affairs. That motion is denied.
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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songer_usc1
|
11
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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.
MARIO MERCADO E HIJOS, Petitioner, Appellant, v. Jose M. FELICIANO, Trustee, et al., Appellees. Matter of PUERTO RICO RAILROAD & TRANSPORT COMPANY, Bankrupt.
No. 5355.
United States Court of Appeals First Circuit.
Oct. 31, 1958.
Pedro M. Porrata and Charles R. Cuprill, Ponce, P. R., on brief for appellant.
Jose L. Novas, Hartzell, Fernandez & Novas and L. E. Dubon, San Juan, P. R., on brief for appellees.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
MAGRUDER, Chief Judge.
On this appeal, we have to consider the correctness of an order of the United States District Court for the District of Puerto Rico dated February 13, 1958, denying a petition for review of an order of the referee in bankruptcy which, on motion, dismissed a petition for reversion of certain real estate that had previously been taken on eminent domain, and which, it was disclosed, had ceased to be used for the public purposes stated in the condemnation proceeding. The case was submitted to us by both parties on the record and briefs, without waiting for oral argument at our October session in Boston, to which session we had advanced the case, upon motion, pursuant to our Rule 3, 28 U.S.C.A.
The determination of the issues now before us takes us back to some pretty old historical events.
Some time between 1884 and 1898 a railroad company, La Compañía de los Ferrocarriles de Puerto Rico, acquired by eminent domain a strip of land ten meters wide approximately circumscribing the island of Puerto Rico. Certain parcels of this land, which are involved in this case, were carved out from holdings, the remainders of which constitute five farms now owned by the present appellant. The latter, however, does not rely upon any formal assignment to it of the right, if any, to reversion of the condemned strips.
The successor in title to the condemnor, Puerto Rico Railroad & Transport Company, filed in the court below a petition for reorganization under Chapter X of the Bankruptcy Act, 11 U.S.C.A. § 501 et seq. Though this petition was approved by the district court on December 8, 1954, the latter Railroad was eventually adjudicated bankrupt by an order entered September 11, 1956, and the case was referred shortly thereafter to Mr. W. H. Beckerleg, the referee in bankruptcy for the District of Puerto Rico. Early in August, 1957, the referee gave notice of the public sale of the lands of the bankrupt.
Subsequently appellant, Mario Mercado e Hijos, filed on August 20, 1957, in the bankruptcy proceedings then pending before the referee, a “Petition for Reversion of Real Property”, in which it was alleged that petitioner was the successor in title to the owners of the holdings in question at the time of the condemnation, on the basis of which it therefore claimed that it held a “right of reversion” to the condemned property once it became evident that the property was no longer to be used for the public purposes described in the original condemnation proceeding. The petition prayed that an order be entered directing the bankrupt to advise appellant of the compensation paid for the parcels at the time of their condemnation, and to cede title to the parcels to appellant upon payment by it to the bankrupt estate of that sum. The petition was opposed by the trustee, by the bankrupt, and by a general creditor of the bankrupt, who now stand as the appellees in the present appeal. The referee entered an order dismissing the petition on December 2, 1957; and the district court, on February 13, 1958, entered its order denying a petition for review of the referee’s order.
Preliminarily, we think we ought to note a possible question as to our own appellate jurisdiction, even though no jurisdictional challenge has been made by the appellees.
The Bankruptcy Act, as amended, contains the following provision (52 Stat. 854 (1938), 11 U.S.C.A. § 47):
“(a) The United States courts of appeals, in vacation, in chambers, and during their respective terms, as now or as they may be hereafter held, are [hereby] invested with appellate jurisdiction from the several courts of bankruptcy in their respective jurisdictions in proceedings in bankruptcy, either interlocutory or final, and in controversies arising in proceedings in bankruptcy, to review, affirm, revise, or reverse, both in matters of law and in matters of fact: Provided, however, That the jurisdiction upon appeal from a judgment on a verdict rendered by a jury shall extend to matters of law only: And provided further, That when any order, decree, or judgment involves less than $500, an appeal therefrom may be taken only upon allowance of the appellate court.
“(b) Such appellate jurisdiction shall be exercised by appeal and in the form and manner of an appeal.”
It would seem that the amount now in controversy is susceptible of monetary determination, and would be the difference between the price realizable by public sale of the property in question (or perhaps the present value of the condemned land) and the amount appellant would have to pay to the bankrupt estate in order to exercise its alleged “right of reversion”. Neither the Brief nor the Record Appendix contains any indication of the present value of the-lands involved, or the amount received in compensation when the lands were-condemned. The notice of appeal is not printed in the Record Appendix; but reference to the original papers reveals-that a notice of appeal dated March 14, 1958, was filed in the district court. Annexed to this notice of appeal was an affidavit executed by one of the attorneys for the appellant “That the value of the-lands claimed in this case is in excess of five hundred ($500.00) dollars.” In view of what we have stated, this allegation in the affidavit is hardly equivalent to a claim that the order appealed from involves more than $500. Therefore, under the statutory provision, it would seem that an appeal could not be taken to this court as a matter of right, by the filing of a notice of appeal in the district court, but rather that, under out present Rule 12, a petition for the allowance of the appeal should have been filed with the clerk of the court of appeals.
However, as we pointed out in Benitez v. Ferran’s Estate, 1 Cir., 1944, 143 F.2d 435, 436, in view of the decision of the Supreme Court in R. F. C. v. Prudence Securities Advisory Group, 1941, 311 U.S. 579, 61 S.Ct. 331, 85 L.Ed. 364, we are bound to hold that this failure to file in the court of appeals a petition for allowance of an appeal is merely “a procedural irregularity rather than a jurisdictional defect, and we have power to allow the appeal, treating the notice of appeal filed in the court below as an informal substitute for the application to us.” In view of the fact that the bankruptcy proceedings now pending in the district court will probably be impeded by the presentation of the claims of others to a “right of reversion” similar to that asserted by the present appellant, it seems that a “special equity” exists which should move this court to exercise its discretion to treat the notice of appeal as an informal, irregular application for leave to appeal. Consequently we now grant leave to appeal; and without further reference to our appellate jurisdiction we proceed to a discussion of the merits of the case.
On January 10, 1879, the Kingdom of Spain established a law of eminent domain, which was extended to Puerto Rico by royal decree of June 13, 1884. Section 43 of this lav/ read as follows (see the translation prepared in March, 1901, by the Division of Insular Affairs of the War Department appearing in H. R. Doc. No. 1484, 60th Cong., 2d Sess., Laws, Ordinances, Decrees, and Military Orders Having the Force of Law, Effective in Porto Rico May 1, 1900, pt. 3, p. 2123):
“Art. 43. If the work requiring the expropriation is not executed, or if executed there should result some surplus piece of land, as also in case the estates should remain without application on account of the object of the forcible expropriation having terminated, the original owner may recover that which was expropriated, returning the sum which he may have received or the amount which proportionately corresponds to the part, unless the parcel referred to should be a part that, without being indispensable to the work, was ceded for the convenience of the property owner, according to the last provision of article 23. * * ”
Thus, undoubtedly, at the time the property now in question was condemned, there existed, under the law then applicable, an inchoate “right of reversion” in favor of the “original owner” under the conditions stated in § 43.
As later appears, the legislature of Puerto Rico has professed to repeal the whole of the old Spanish law of eminent domain. But it is claimed by appellant that this inchoate right of reversion was preserved inviolate by Art. VIII of the Treaty of Paris, which became a valid treaty between the Kingdom of Spain and the United States by the exchange of ratifications on April 11, 1899. Article VIII of the treaty read, in part, as follows (30 Stat. 1758):
“And it is hereby declared that the relinquishment or cession, as the case may be, to which the preceding paragraph refers, cannot in any respect impair the property or rights which by law belong to the peaceful possession of property of all kinds, of provinces, municipalities, public or private establishments, ecclesiastical or civic bodies, or any other associations having legal capacity to acquire and possess property in the aforesaid territories renounced or ceded, or of private individuals, of whatsoever nationality such individuals may be.” (Italics added.)
We do not think that the claim based on this article of the treaty is correct. The reference in the treaty to “the peaceful possession of property” would seem to exclude the coverage of such a speculative, remote and inchoate right of reverter as was created over fifty years ago when the property was condemned for railroad uses. The foregoing section of the Treaty of Paris was construed by the Supreme Court in Alvarez y Sanchez v. United States, 1910, 216 U.S. 167, 175, 30 S.Ct. 361, 363, 54 L.Ed. 432, as evidently referring “to ordinary private property, of present, ascertainable value, and capable of being transferred between man and man.”
But assuming for the moment that this “right of reversion” was preserved by Art. VIII of the Treaty of Paris, it is clearly the domestic law of the United States that the provisions of a treaty may be supplanted by a subsequent act of Congress. As the Supreme Court commented in Alvarez y Sanchez v. United States, 1910, 216 U.S. 167, 175-176, 30 S.Ct. 361, 363, 54 L.Ed. 432: If any provision of the Foraker Act had to be deemed inconsistent with the Treaty of Paris, “the act would prevail; for, an Act of Congress, passed after a treaty takes effect, must be respected and enforced, despite any previous or existing treaty provision on the same subject. Ribas y Hijo v. United States, 194 U.S. 315, 324, 24 S.Ct. 727, 48 L.Ed. 994, and authorities cited.”
Section 8 of the Foraker Act, the first Organic Act for Puerto Rico, enacted on April 12, 1900, 31 Stat. 79, 48 U.S.C.A. §§ 735, 736, continued in effect the laws then in force in Puerto Rico, which no doubt included the above Spanish law of eminent domain. Then § 8 of the Foraker Act went on to provide that such laws would continue in effect until “altered, amended, or repealed” by the Puerto Rican legislature or by act of Congress. See also § 32 of the Foraker Act, 31 Stat. 83-84, 48 U.S.C.A. § 821.
All the parties apparently concede that the legislature of Puerto Rico proceeded to exercise this power of repeal in § 24 of the Act of March 12, 1903, which purported expressly to repeal the Spanish law of eminent domain of January 10, 1879. Section 23 of the same legislative enactment prescribed a somewhat similar right of reversion in condemnation cases in favor of “the party dispossessed” by the taking. But § 23 was subsequently repealed by the Act of March 12, 1908, and at the same time § 7 of the Act of March 12,1903, was amended to give a limited right of reversion to “the party dispossessed or who voluntarily sold, transferred or encumbered his right of ownership”. However, this modified § 7 of the Act of March 12, 1903, was itself repealed by the Puerto Rican legislature in its Act of May 7, 1948 (Laws P.R.1948, p. 246). The result is that neither at the time of the bankruptcy of the railroad corporation, nor at the present time, did or does there exist any statutory basis in Puerto Ri-can law for the assertion of a right of reversion as claimed by the present appellant.
It was not, and indeed could not have been, contended by appellant that the wholly speculative right of reversion which the party dispossessed originally acquired under the old Spanish law of eminent domain was such a property right as could not have been taken away without compensation by subsequent legislation passed prior to the happening of the event or condition upon which the right of reversion depended. See Ferry v. Spokane, Portland & Seattle Ry. Co., 1922, 258 U.S. 314, 320, 42 S.Ct. 358, 66 L.Ed. 635; Sagastivelza v. Puerto Rico Housing Authority, 1 Cir., 1952, 195 F.2d 289; Opinion of the Justices, Mass.1958, 151 N.E.2d 475; Trustees of Schools of Township No. 1 v. Batdorf, 1955, 6 Ill.2d 486, 130 N.E.2d 111. See also People of Puerto Rico v. United States, 1 Cir., 1942, 132 F.2d 220, certiorari denied, 1943, 319 U.S. 752, 63 S.Ct. 1165, 87 L.Ed. 1706; Restatement Property § 53, comment b (1936).
The view we have taken above renders it unnecessary for us to consider the correctness of other grounds which, to the referee or to the district court, seemed to point to the same legal conclusion.
A judgment will be entered affirming the order of the District Court.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellee, v. Eli BOLDEN, Appellant.
No. 71-1565.
United States Court of Appeals, Eighth Circuit.
Submitted May 12, 1972.
Decided June 14, 1972.
Alfred I. Harris, and Morton L. Schwartz, St. Louis, Mo., on brief for appellant.
Daniel Bartlett, Jr., U. S. Atty., and David W. Harlan, Asst. U. S. Atty., St. Louis, Mo., on brief for appellee.
Before VOGEL, LAY and BRIGHT, Circuit Judges.
PER CURIAM.
Defendant-appellant, Eli Bolden, was found guilty by a jury of having in his possession certain mail matter and an article contained therein (a Master Charge credit card) knowing the same to have been stolen, in violation of 18 U.S. C.A. § 1708. He appeals from the judgment of conviction. We affirm.
On April 10, 1971, while at an E. J. Korvette Store located in Cool Valley, Missouri, Bolden presented a Master Charge credit card for payment of a suit which he wanted to purchase. The credit card in question had been issued and mailed to James Sayles of St. Louis, Missouri. Because of the amount of the purchase, the cashier called Master Charge for an authorization. As a result, Robert Earl Cope, who is a security detective at the E. J. Korvette Store in Cool Valley, received a call from Master Charge, stating that someone was attempting to use a stolen credit card in the store. Security Officer Cope then proceeded to the men’s check-out, took the Master Charge plate from the cashier and inquired as to whose card it was. Bolden responded that it was his. Cope thereupon asked appellant to accompany him to the store office in order to “straighten out the problem”.
When asked for personal identification, Bolden produced a card in his own name from the Missouri State Psychiatric Hospital. After seeing the card, Security Officer Cope immediately notified the Cool Valley Police, who then effected the arrest of appellant. Cope never placed appellant under arrest, nor did he restrain him in any way.
On appeal, appellant Bolden argues that he is entitled to a new trial because (1) he was not given the Miranda warnings by Security Officer Cope; (2) the United States Marshal’s office was unable to locate one Tony Gaskin, a potential defense witness; and (3) the trial court erred in the giving of certain instructions.
While it is true that Security Officer Cope did not give appellant the warnings required by Miranda, it is also true that such warnings are only required when there is a “custodial interrogation”, which is defined by the Supreme Court as “ * * * 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.” Miranda v. Arizona, 1965, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694.
In view of the facts before us, we feel that Bolden was not under “custodial interrogation” because (1) Cope did not restrain appellant’s freedom in any significant way; (2) appellant voluntarily admitted that he had possessed the card in question; (3) appellant voluntarily gave evidence of his true identity; (4) appellant voluntarily accompanied Cope to the store office; and (5) Security Officer Cope was not a “law enforcement official” acting in a situation where the warnings would be necessary. Miranda v. Arizona, supra, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; United States v. Birnstihl, 9 Cir., 1971, 441 F.2d 368; United States v. Antonelli, 2 Cir., 1970, 434 F.2d 335. Cf. United States v. John R. Engle, 8 Cir., 1972, 458 F.2d 1017; Ping v. United States, 8 Cir., 1969, 407 F.2d 157, cert. denied, 1969, 395 U.S. 926, 89 S.Ct. 1784, 23 L.Ed.2d 244; Cohen v. United States, 8 Cir., 1968, 405 F.2d 34, cert. denied, 1968, 394 U.S. 943, 89 S.Ct. 1274, 22 L.Ed.2d 478.
Bolden next argues that he was prejudiced in that the subpoena issued for a defense witness was returned “Not Found”. Bolden argues that the witness, Tony Gaskin, would have corroborated other testimony to the effect that Gaskin gave the Master Charge card to appellant. Although the subpoena was returned “Not Found”, nineteen days elapsed between the return of the subpoena and the date of the trial. Appellant did not seek either an arrest warrant or a continuance. Additionally, members of appellant’s family admitted that they saw the witness during the time in question. Clearly the government cannot be required to be successful in its efforts to subpoena witnesses in every instance. All that is required is a good faith effort to secure the service of process. Maguire v. United States, 9 Cir., 1968, 396 F.2d 327, cert. denied, 1969, 393 U.S. 1099, 89 S.Ct. 897, 21 L.Ed.2d 792. The contention of appellant is without merit.
Finally, appellant submits that his trial was prejudiced by the instructions given by the trial court. We have reviewed the instructions in their entirety and find no error therein.
Affirmed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
sc_lcdispositiondirection
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
UNITED STATES v. JOHN J. FELIN & CO., INC.
No. 17.
Argued May 7, 1947. — Reargued November 18-19, 1947.
Decided June 14, 1948.
Assistant Solicitor General Washington argued the cause for the United States. With him on the brief were Assistant Attorney General Sonnett, Paul A. Sweeney and Harry I. Rand.
Arthur L. Winn, Jr. argued the cause for respondent. With him on the brief were Wilbur La Roe, Jr. and Frederick E. Brown.
Mr. Justice Frankfurter
announced the judgment of the Court and delivered an opinion
in which The Chief Justice and Mr. Justice Burton concurred.
This is a claim for just compensation, based on the Fifth Amendment, by a slaughterer whose meat products the Government requisitioned for war purposes. The Court of Claims awarded damages above the maximum prices fixed by the Office of Price Administration for such products and measured by what that court deemed the replacement cost of the requisitioned property. 107 Ct. Cl. 155, 67 F. Supp. 1017. The implications of this ruling reach far, and so we brought the case here. 330 U. S. 814.
While the immediate facts of this controversy are few and undisputed, they can be understood only in connection with the recognized facts in the meat industry. Of these we must take judicial notice inasmuch as we must translate the idiom of the industry into vernacular English. Also, of course, we must consider the facts in the context of the rather intricate system of meat price regulation by O. P. A.
The respondent was engaged in the business of packing pork products in Philadelphia. It bought hogs in Chicago, St. Louis, and Indianapolis and transported them to Philadelphia where they were slaughtered and converted into various pork cuts and products. It sold these products to retail dealers in Philadelphia, and it had also supplied pork products to Government agencies.
On January 30, 1942, the President approved the Emergency Price Control Act. 56 Stat. 23, 50 U. S. C. App. (Supp. V, 1946) § 901. Accordingly, the Price Administrator, by a series of regulations, established maximum prices for dressed hogs and wholesale pork cuts. Revised Maximum Price Regulation No. 148, issued on October 22, 1942, governed the pork cuts here involved. 7 Fed. Reg. 8609,8948,9005; 8 Fed. Reg. 544.
To meet the food needs entailed by the war, the President under the authority of the Second War Powers Act, 56 Stat. 176, 50 U. S. C. (Supp. V, 1946) § 633, created the Food Distribution Administration, with the Secretary of Agriculture as its head. E. O. 9280, 7 Fed. Reg. 10179. This Administration was given authority to assign food priorities, to “allocate” food to governmental agencies and for private account, and to assist in carrying out the program of the Lend-Lease Act of March 11, 1941, 55 Stat. 31. To carry out the task thus delegated by the President, the Food Distribution Administration issued to each packer operating under federal inspection a priority order calling for delivery of a proportionate part of the total quantity needed at the particular time. A packer’s quota was based on the ratio of meat produced in his plant to the total production in all federally inspected plants.
In conformity with this system, the respondent, on February 2, 1943, was requested to deliver 225,000 pounds of lard and pork products to the Federal Surplus Commodity Corporation for delivery under the Lend-Lease program. The respondent was advised that this order was to be filled in preference to any other order or contract of lower priority, and at the applicable O. P. A. ceiling prices. Insisting that it could no longer afford to sell to the Government at ceiling prices, respondent refused to make delivery.
On March 1, 1943, the Food Distribution Administration, exercising powers not questioned, issued an order requisitioning the lard and pork products in controversy. On March 3, 1943, the property was duly seized in respondent’s Philadelphia packing house. On March 24, 1943, respondent filed its claim with the Administration for “just compensation” for taking this property. Its total claim was $55,525, of which $16,250 was for lard and $39,275 for pork cuts. On May 7, 1943, the Administration, by way of preliminary determination of the just compensation for the requisitioned property, fixed the value of the lard at $15,543.78 and the pork cuts at $25,112.50. These amounts were based on the O. P. A. ceiling prices applicable to these products. On May 22, 1943, the preliminary award was made final. Respondent accepted in full payment the award as to the lard; it refused to accept the determination as to the pork cuts and, in accordance with the statutory procedure in the case of rejection of such an award, was paid half of it. On June 24, 1943, respondent instituted this action in the Court of Claims to recover the additional amount which when added to the $12,556.25, the half of the Government's valuation for those cuts, would constitute “just compensation” for what the Government had taken.
The Court of Claims referred the proceeding to a commissioner, who took evidence and reported to the court. Upon the basis of his report and the underlying evidence, the Court of Claims found as a fact that the replacement cost of the requisitioned pork cuts at the time and place of the taking was $30,293, and concluded, as a matter of law, that such replacement cost and not the maximum ceiling price was the proper measure of damages for the taking. We heard argument at the last Term, and after due consideration deemed it appropriate to order reargument at this Term.
At the outset it is important to make clear what it is we are called upon to decide. The conventional criterion for determining what is “just compensation” for private property taken for public use is what it would bring in the free, open market. E. g., Olson v. United States, 292 U. S. 246, 255; Brooks-Scanlon Corp. v. United States, 265 U. S. 106, 123; L. Vogelstein & Co. v. United States, 262 U. S. 337, 340. But there must be a market to make the criterion available. Here there was a market in which the respondent could have sold the pork cuts, but it was not a free and open market; it was controlled in its vital feature, selling price, by the O. P. A. It is this fact that creates the problem of the case, assuming that the case is not dogmatically disposed of by holding that inasmuch as the maximum price is the only price which respondent could legally have got for its goods it is just compensation. We are not passing on the abstract question whether a lawfully established maximum price is the proper measure of “just compensation” whenever property is taken for public use. We are adjudicating only the precise issues that emerge from this case.
The Second War Powers Act, 1942, under which respondent’s property was authorized to be taken, restricted compensation for the taking to that which the Fifth Amendment enjoins. 56 Stat. 176, 181. In enforcing this constitutional requirement “the question is what has the owner lost, not what has the taker gained.” Boston Chamber of Commerce v. Boston, 217 U. S. 189, 195; McGovern v. New York, 229 U. S. 363. Respondent’s sole claim is for the pecuniary equivalent of the property taken. This is not a situation where consequential damages, in any appropriate sense of the term, are urged as a necessary part of just compensation. Respondent does not claim such damages on the theory that, in order to protect its good will, it had to supply its regular customers and that this compelled replacement of the requisitioned pork products by the purchase, slaughter, and processing of live hogs. Cf. United States v. General Motors Corp., 323 U. S. 373, 382; United States v. Petty Motor Co., 327 U. S. 372, 377-78; United States ex rel. T. V. A. v. Powelson, 319 U. S. 266, 281-82. Respondent claims that replacement cost is the proper measure of the value of the property when requisitioned. This action was brought to recover damages which the respondent would suffer, so it maintains, if it accepted the Government’s offer of the applicable ceiling prices in satisfaction of “just compensation.”' The burden therefore rests on the respondent to prove the damages it would suffer by not receiving more than the ceiling prices. Marion & Rye Valley R. Co. v. United States, 270 U. S. 280, 285.
The Court of Claims found that the principal item in the cost of processing respondent’s products was what it had to pay for live hogs; that, inasmuch as live hogs were not then covered by price regulation, the Chicago market quotations governed price in the packing industry; that the Chicago average live hog price was $15.59 during March 1943; and that, on the basis of this price, the replacement cost for the requisitioned property was $30,293. We are of opinion that in reaching this conclusion the court below failed to take into account decisive factors for the proper disposition of the action brought by the respondent.
We are dealing with a claim for damages arising out of a transaction pertaining to a particular industry, and the transaction cannot be torn from the context of that industry. It is practically a postulate of the slaughtering industry that replacement cost does not afford a relevant basis for determining the true value of the industry’s products. “Manufacturing operations in the meat packing industry do not consist of assembling raw materials for the purpose of obtaining one finished product, but rather of separating or breaking down raw materials (cattle, etc.) into many parts, one of which (dressed carcass) is the major product, and the other parts of which are further processed into numerous byproducts.” Kingan & Co. v. Bowles, 144 F. 2d 253, 254. In consequence, cost in the industry generally is like a fagot that cannot be broken up into simple, isolated pieces. See Greer, Packinghouse Accounting (Prepared by the Committee on Accounting of the Institute of American Meat Packers), passim. “The accounting procedure in the hog business is even more complicated than that of the cattle, calf, or sheep business, because the operations involve a greater breaking up of the dressed carcass and more numerous processes extending over considerable periods of time.” Id. at 33-34. The problem is one of “joint cost” in a business which “produces no single major product,” id. at 213, with the result that no accountant has thus far “been able to devise a method yielding by-product or joint-cost figures which does not embody a dominance of arbitrariness and guesswork.” Hamilton, Cost as a Standard for Price, 4 Law and Contemp. Prob. 321, 328; cf. Greenbaum, The Basis of Property Shall Be the Cost of Such Property: How is Cost Defined?, 3 Tax L. Rev. 351, 356-59.
If, as suggested in argument, a hog were nothing but an articulated pork chop, and the processing of edible and inedible by-products were not characteristic of the industry, the price of a live hog might well represent the collective cost of the derivative pork cuts. The pork chop, however, is but one of the many edible hog products. According to an estimate about the time of the requisitioning of these pork cuts, there were more than 200 pork items (exclusive of sausage products) in the market. See Supplementary Statement of Considerations for Revised Regulation No. 148, Pike and Fischer, 3 OPA Food Desk Book 46,151. “Most pork products,” the Administrator found, “are consumed in a cured or processed state. Fresh pork products, such as pork chops and fresh ham, represent not over 20 per cent of the vast quantity of pork which moves by rail. The remaining 80 per cent reaches the consumer in a wide variety of processed forms, including dried, dry cured, sweet pickled, smoked, cooked, baked, and canned.” Id. at 46,141. It deserves noting that the requisitioned products in controversy included cured regular hams, cured clear bellies, cured picnics, and salted fatbacks.
The petitioner was also engaged in by-product processing, for the Government took from him 100,000 pounds of refined pure lard. For the value of the lard the respondent accepted the administrative award. Admittedly, part of the cost of the live hog must be charged to by-products. However, any method of apportioning the total cost to the by-products is highly speculative.
Since so much speculative approximation and guesswork entered into the determination of cost, selling price, and profit, the industry, naturally enough, was in almost continuous controversy with the Price Administrator about them. The respondent was party to these controversies. On July 17,1942, it filed a protest against Maximum Price Regulation No. 148 which was consolidated with the protest of 115 other pork slaughterers against this regulation. On the basis of calculations as to the cut-out value or replacement cost of various pork cuts, the slaughterers contended that the regulation did not allow them sufficient operating margin over the cost of live hogs. In rejecting the protest, on April 23, 1943, the Administrator made this ruling: “The interdependence of all phases of the operations of packing establishments makes precise evaluation of the relationship between prices on dressed and processed meats and live hog prices impossible except in terms of the over-all financial position of the industry.’'' In the Matter of Rapides Packing Co., Pike and Fischer, 1 OPA Opinions and Decisions 243. The respondent, on March 8, 1943, had also protested, again on the basis of the cost of live hogs, against the revision of the regulation. This protest was consolidated with those of 15 other pork slaughterers and, substantially on the ground taken in the Rapides Packing Co. case, this second protest was likewise rejected by the Administrator. In the Matter of Greenwood Packing Plant, Pike and Fischer, 1 OPA Opinions and Decisions 296,299.
Review by the Emergency Court of Appeals was not sought, although the first denial of respondent’s claim for the replacement cost of pork cuts, based on live hog prices, came shortly after the Government’s requisitioning of the products as to which he now makes the same contention. It is noteworthy that the pork price margins were almost the only meat price margins which were not challenged before the Emergency Court of Appeals in what has been called "the battle of the meat regulations.” See Hyman and Nathanson, Judicial Review of Price Control: The Battle of the Meat Regulations, 42 Ill. L. Rev. 584.
The considerations which underlay the Administrator’s meat price determinations are most pertinent to the solution of our immediate problem. The result of his analysis was that the profit-and-loss data on a slaughterer’s entire operations were the only dependable figures from which the fairness of meat prices could be deduced. The Administrator pointed out that the industry, on the basis of its accounting figures, had historically lost money on its meat sales. Since, however, by taking the by-product sales into full account its operations as a whole were highly profitable, these meat sale losses were “more in the nature of bookkeeping losses which failed to take fully into account the integrated nature of the industry.” These views were approvingly quoted by the Emergency Court of Appeals in Armour & Co. v. Bowles, 148 F. 2d 529, 535.
In both of the consolidated proceedings to which the respondent was a party, the Administrator explicitly requested to be furnished with the industry’s profit-and-loss data. In the earlier proceeding, no proof of loss was filed by any of the protestants. In the Matter of Rapides Packing Co., supra. In the second proceeding the Administrator made this finding:
“The three Protestants who submitted further evidence did not even thus sustain their claims of individual hardship. One of them showed a net profit of $60,492.44 for the five months period ending March 27, 1942; another a net profit of $6,838.00 for the three months period ending April 1, 1943, and the third failed to submit a profit and loss statement and balance sheet although specifically requested to do so.” In the Matter of Greenwood Packing Plant, supra, at 297.
Not merely does the industry generally seem to have prospered under price control, but so did the respondent despite the fact that throughout the period in controversy it continued to buy live hogs at prevailing prices and to sell pork products derived from them at the authorized ceiling prices, even when this meant selling its pork products below the price that the Court of Claims found to be their replacement cost value.
Most pertinent, therefore, are the pronouncements of the packing industry made before these matters became embroiled in price-fixing litigation. “The cost of a dressed hog carcass, or of a lot of dressed hog carcasses, may be determined quite satisfactorily; but when a carcass is cut up into its various merchantable parts, all record of cost is lost, as it is impossible to determine the cost of any of these cuts.” Greer, Packinghouse Accounting (Prepared by the Committee on Accounting of the Institute of American Meat Packers), p. 246, and also pp. 43, 58, 61-62. Since the “results for the hog business as a whole can be found only by adding the profits or losses for all merchandising departments,” id. at 218, the only accurate formula for costs in hog slaughtering is a profit-and-loss statement for the entire operations. Id. at 43-44.
It is as old as the common law that an allegation purporting to be one of fact but contradicted by common knowledge is not confessed by a demurrer. Of course, findings of fact are binding on this Court, but if this Court had to treat as the starting point for the determination of constitutional issues a spurious finding of “fact” contradicted by an adjudicated finding between the very parties to the instant controversy, constitutional adjudication would become a verbal game.
There are facts and facts, even in Court of Claims’ litigation. It is the function of the Court of Claims to make findings. But when a judgment based on such findings is here brought in question it is the function of this Court to ascertain the meaning of the findings in order to determine their legal significance. The judgment of the court below that “replacement cost” is the proper measure of just compensation and the mode by which it reached the amount of that cost are inescapably enmeshed in considerations that are clearly familiar issues of law and particularly of constitutional law. Where the conclusion is a “composite of fact and law,” Cedar Rapids Gas Light Co. v. Cedar Rapids, 223 U. S. 655, 668, this Court may certainly hold that as a matter of law the findings are erroneous. See, e. g., Washington ex rel. Oregon R. & N. Co. v. Fairchild, 224 U. S. 510, 528. Even when this Court reviews State court judgments involving constitutional issues it “must review independently both the legal issues and those factual matters with which they are commingled.” See Oyama v. California, 332 U. S. 633, 636 (and the authorities therein cited). Similarly, findings concurred in by two courts do not control the decision here where “facts and their constitutional significance are too closely connected” and “the standards and the ultimate conclusion involve questions of law inseparable from the particular facts to which they are applied.” United States v. Appalachian Electric Power Co., 311 U. S. 377, 404. Even where the parties to the litigation have stipulated as to the “facts,” this Court will disregard the stipulation, accepted and applied by the courts below, if the stipulation obviously forecloses real questions of law. See, e. g., Swift & Co. v. Hocking Valley R. Co., 243 U. S. 281.
The prior proceedings between the same parties, as to which we would be blind not to take judicial notice, as well as the unquestioned facts pertaining to the meat industry are relevant to interpret the findings of the Court of Claims. We have concluded that here “replacement cost” is a spurious, i. e. non-legal, basis for determining just compensation. It is as though the Court of Claims had based its opinion on a balance sheet and we had to interpret the balance sheet into actualities. And so we hold that, as a matter of law, the court below erred in utilizing replacement cost as the basis for determining what constituted just compensation.
When due regard is given to the findings of the Court of Claims, they fail to establish that the compensation proffered by the Government for the requisitioned pork cuts, based on the maximum ceiling prices, falls short of “just compensation.” We are therefore not called upon to consider whether as a matter of constitutional law prices fixed by the Government for the sale of commodities are the measure of “just compensation” for commodities seized by the Government. As the conflict of opinion here indicates, that is a debatable issue which, since we can, we must avoid adjudicating. See Spector Motor Co. v. McLaughlin, 323 U. S. 101, 105.
The burden of proving its case was upon the respondent. The nature of this burden was to prove, in light of the governing facts of the industry, that the administrative award for the taking of respondent’s property was less than just compensation, based as it was on prices which the Administrator had established for those products and which had been left undisturbed by the process devised by Congress for assuring the fairness of these prices. By evidence merely of bookkeeping losses, respondent did not carry its burden of proving actual damage. Just compensation is a practical conception, a matter of fact and not of fiction. Respondent introduced no evidence, and the Court of Claims made no findings, to establish a loss based on its total operations during the period relevant to the slaughtering of the hogs from which the requisitioned products were processed. On the basis of such figures it would be necessary to determine by reasonable allocations the portion of the loss properly attributable to the goods seized by the Government. In the proceedings below the respondent neither alleged such a loss nor submitted proof in support of it. Since it has not maintained its burden of proving that the ceiling price award entails damages, the judgment of the Court of Claims cannot stand.
The judgment is reversed with directions to the Court of Claims to enter a judgment for the respondent in an amount not exceeding $12,556.25, with interest on the amount of $25,112.50 from March 3,1943, the date of the requisition, to May 22, 1943, the date of the final award made hy the Director of the Food Distribution Administration.
In 1943 there were 308 hog slaughterers whose establishments operated under federal inspection. Livestock, Meats, and Wool Market Statistics and Related Data 1945, compiled by the Livestock Branch,.Production and Marketing Administration, United States Department of Agriculture, p. 31. In 1942 there had been only 218 hog slaughtering establishments under federal inspection, and in 1944 there were 322. Ibid.
The requisitioned property consisted of the following:
40,000 pounds Cured Regular Hams, 14 to 18 lb. range
40,000 pounds Cured Clear Bellies, 10 to 14 lb. range
15,000 pounds Cured Picnics, 6 to 10 lb. range
30,000 pounds Salted Fatbacks, 8 to 12 lb. range
100,000 pounds Refined Pure Lard, 1 lb. prints (30 lbs. to carton)
After the case was taken under advisement, following reargument, a matter was brought to our attention which calls for consideration, however summary. We were advised that on March 23, 1943, the respondent filed with the O. P. A. an “Application for Adjustment of Maximum Prices for Commodities or Services under Government Contracts or Subcontracts,” pursuant to Procedural Regulation No. 6, 7 Fed. Reg. 5087, and Supplementary Order No. 9, 7 Fed. Reg. 5444. (See 7 Fed. Reg. 5088 for the form of the application.) The purpose of these regulations was to afford opportunity for relief to sellers who had made, or proposed to make, “contracts or subcontracts” with the Government. This application had lain dormant from the date of its filing until December 13, 1947, when we were advised by counsel for the Government that it was now in the files of the Reconstruction Finance Corporation, which is third in the chain of title from the O. P. A., through the Office of Temporary Controls, charged with the administration of these two regulations. On December 15, 1947, counsel for the respondent advised the R. F. C. that it withdrew the application insofar as it pertained to the requisitioned commodities in controversy here.
While the Government does not suggest that the dormancy of this application renders present proceedings, if not moot, premature, such apparently is the intimation. If the regulations in fact authorized one who is not a “contractor or subcontractor” in the ordinary meaning of those terms to obtain special administrative relief apart from the statutory scheme relating to requisitioned property, technical issues would have to be faced which we need not particularize. Counsel for the Government advise us that a counsel for the R. F. C. has now interpreted the regulations not only (1) as applicable to requisitioned commodities, but (2) as authorizing retroactive price adjustments for requisition transactions completed before readjustment is sought. Not unnaturally, the Government states that the applicability of this procedure for readjustment “to requisitioned commodities may not be readily apparent from its terms.” While normally we accept the construction placed upon a regulation by those charged with its administration, we must reject a construction that is not only as unnatural as what is now proposed but comes to us post litem motam five years after the application. It should also be pointed out that the construction now placed upon the regulations is not made by the administration that promulgated it but by the second successor agency for liquidating what is left of this administration. With due regard for the respect we owe to administrative rulings in their normal setting, it would require such a remaking of the regulations as reason and fair dealing here reject. The provisions for readjustment of contracts relate to a transaction in which the seller and the purchasing agency of the Government were in agreement as to the contract price. The price was paid, subject to the approval of the application for adjustment. If so approved, the seller retained the purchase price; if disapproved, the seller had to make a refund. See Armour & Co. v. Brown, 137 F. 2d 233, 240. In the case of a requisitioned commodity, certainly prior to the filing of an application, no amount is agreed upon, and no provision for refund has been made. In short, we reject this belated and novel construction and are of the opinion that the pendency of this moribund application before the R. F. C., now withdrawn by the respondent, was no bar to this suit.
If the respondent had sold the pork products in controversy here to its regular customers, it would have done so at the applicable ceiling prices. If the Government had then requisitioned the property from these customers, there would have been no question that the ceiling prices would have been the measure of just compensation.
This was obviously not the cost of the hogs from which the pork products requisitioned by the order of March 1, 1943, were processed. The relevant hogs were purchased in some previous month and at a lower cost. The Chicago average was $15.35 in February and $14.78 in January, 1943, and $14.01 in December and $13.96 in November, 1942. Livestock, Meats, and Wool Market Statistics and Related Data 1945, compiled by the Livestock Branch, Production and Marketing Administration, United States Department of Agriculture, p. 54. Moreover, these were the average prices for average weights of hogs. Ibid. The Government took specific pork products which were processed from hogs of a definite weight for which the respondent paid specific prices in the Chicago, St. Louis, or Indianapolis markets.
There are “numerous by-products,” and the computation of the values for “such by-products as casings, grease, fertilizer, and hog hair, is rather complex.” Greer, Packinghouse Accounting (Prepared by the Committee on Accounting of the Institute of American Meat Packers) (1929) at 213 and 219, respectively; see, generally, Clemen, By-Products in the Packing Industry (1929); Moulton and Lewis, Meat through the Microscope (rev. ed. 1940); Readings on By-Products of the Meat Packing Industry, collected by the Institute of Meat Packing, University of Chicago (1941); Rhoades, Merchandising Packinghouse Products, Institute of Meat Packing, University of Chicago (1929); Tolman, Packing-House Industries (1922).
Since, as we hold, the value of the individual products can only be determined by proportionate allocation from the over-all operations, it seems to us that respondent’s acceptance of the award as to the lard was hardly consistent with its rejection of the award as to the other pork products.
“On much of the material transferred [from one of the slaughterer’s departmental accounts to another], such as blood, bones, tankage, glue stock, etc., there is no ascertainable outside market, and the packers must perforce place quite arbitrary valuations on this material having no probable relation to either cost or market. Again certain products are in the green stage when transferred, and an outside market only obtains for the finished stage, with the result that arbitrary deductions must be made from the finished market, estimated to establish a nonexistent ‘green’ market. The certification of internal transfer prices presents, accordingly, an almost interminable problem to any outside reviewing body.” Report of the Federal Trade Commission on the Meat-Packing Industry (1920), Part V, 56. The industry’s position as to the utilization of such cost allocations and the Price Administrator’s objections thereto are quoted fully and discussed in Armour & Co. v. Bowles. 148 F. 2d 529, 535-39.
It is also significant that none of the other 130 protestants sought review in the Emergency Court of Appeals. Cf., e. g., Kingan & Co. v. Bowles, 144 F. 2d 253, and Armour & Co. v. Bowles, 148 F. 2d 529, for that court’s views on replacement cost as a basis for the determination of value.
“It is a notable fact, that according to the present method of departmental accounting, the packers are in the habit of showing low profits or even positive losses in the carcass-meat departments, while at the same time exhibiting large profits in the by-products or ‘specialty’ departments, the chief reason for this somewhat extraordinary state of affairs being found in the valuations placed upon transfers.” Report of the Federal Trade Commission on the MeatPacking Industry (1920), Part V, 56. While a great deal of time has passed since this 1920 report, the Price Administrator reached the same conclusions in 1943, and the Emergency Court of Appeals quoted the report more fully in 1945. See Armour & Co. v. Bowles, 148 F. 2d at 537.
See War Profits Study No. 14, Office of Research, Financial Analysis Branch, Office of Price Administration, Office of Temporary Controls (1947) pp. 17, 45-47, 73-75. This is a study of the profits of 520 food processors, but the foregoing references were to the separate tabulations concerning the 79 meat packers included in the study. The financial data was compiled from Moody’s Industrials, Standard & Poor’s Corporation Records, and the OPA Financial Reports submitted by the packers. Id. at 19. Of the total 79 meat packers, 54 are processing slaughterers, 10 non-processing slaughterers, and 15 non-slaughterers. The comparison between the 1943 operations and the base period (1936-39 average) operations shows for the 54 processing slaughterers: Net sales: 1943 — $4,575,528,000 (after renegotiation refunds)/base period — $2,382,211,000; Profits before income taxes: 1943 — $125,463,000 (after renegotiation refunds)/base period — $24,415,000; Profits after taxes: 1943 — $50,402,000 (after renegotiation refunds)/base period — $19,255,000; Return on sales: 1943 — 2.7%/base period — 1.0%; Return onnet worth: 1943 — 19.5%/ base period — 4.1%; Return on invested capital: 1943 — 16.5%/base period — 4.1%. Id. at 45, 47. For the 10 non-processing slaughterers, the comparison shows: Net sales: 1943 — $62,098,000/base period— $29,927,000; Profits before income taxes: 1943 — $1,027,000/base period — $184,000; Profits after taxes: 1943 — $390,000/base period— $147,000; Return on sales: 1943 — 1.7%/base period —.6%; Return on net worth: 1943 — 28.0%/base period — 6.3%; Return on invested capital: 1943 — 25.5%/base period — 5.9%. Ibid.
Respondent’s income account for the year ending December 31, 1943, shows:
“Net sales. $14,225,056
Cost of sales.... 12,950,785
Selling, etc., exp. 869,770
Operating profit. 404,500
Other income.... 18,717
Total income.... 423,217
Mise, deductions. 13,229
Income taxes.... 176, 619
Net income. 233,369
Earn., pfd. share $40.21
Earn., com. share 17.97”
See Moody’s Manual of Investments, American and Foreign, Industrial Securities, 1944, p. 647. The 1943 net income figure of $233,369 compared favorábly with preceding years: 1942 — $73,292; 1941— $150,069; 1940 — $148,164; and 1939 — d$76,986.
The court below found that in order to protect its good will and
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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sc_authoritydecision
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A
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine 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.
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
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_appel1_1_3
|
J
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
TRANSAMERICA CORPORATION v. LEWIS, Former Collector of Internal Revenue.
No. 9819.
Circuit Court of Appeals, Ninth Circuit.
March 12, 1942.
Claude I. Parker, Bayley Kohlmeier, and Harriet Geary, all of Los Angeles, Cal., for appellant.
Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key, J. Louis Monarch, S. Dee Hanson, and Joseph Jones, Sp. Assts. to Atty. Gen., and Frank J. Hennessy, U. S. Atty., and Esther P. Phillips, Asst. U. S. Atty., both of San Francisco, Cal., for ap-pellee.
Before GARRECHT, HANEY, and HEALY, Circuit Judges.
GARRECHT, Circuit Judge.
The question before the court on this appeal is whether- the Documentary Stamp Tax imposed upon the transfer of corporate stocks by Title VIII, Section 800, Schedule A-3 of the Revenue Act of 1926, as amended, 44 Stat. 9, 99, 101; 47 Stat. 169, 273; 48 Stat. 206, § 212; 49 Stat. 431; 49 Stat. 2029 ; 50 Stat. 358, 26 U.S. C.A. Int.Rev.Acts, page 289, should be computed on the basis of the par or face value of the certificates surrendered to the transfer agent by the transferor, or upon the basis of the par or face value of the new certificates issued to the transferee.
The facts are not disputed. July 2, 1937, Transamerica Corporation, taxpayer-appellant, declared a dividend to its stockholders of stock of Bank of America National Trust and Savings Association, a national banking association, on the basis of one share of the capital stock of the Bank of America, N. T. & S. A., of the par value of $12.50 a share, for each ten shares of no-par stock of Transamerica Corporation outstanding, as of the close of business July 15, 1937. The resolution and payment of the dividend were approved by the stockholders of appellant on July 10, 1937, and prior to July 31, 1937, the appellant delivered to the transfer agent of the Bank of America National' Trust and Savings Association thirty-eight certificates representing 3,986,184 shares of stock of said Bank of America. On or about July 31, 1937, pursuant to the resolution and under the instructions of appellant, the said transfer agent issued and delivered to the stockholders of appellant certificates representing 2,237,962 shares of stock of said Bank of America National Trust and Savings Association.
On January 4, 1937, the appellant had declared a similar dividend to its stockholders of record as of January 15, 1937, the dividend to be paid in the capital stock of Bancamerica-Blair Corporation at the rate of 1/50 share of the latter stock, of the par value of $1, for each share, issued and outstanding, of the capital stock of Transamerica Corporation. Prior to January 30, 1937, the appellant delivered three certificates of stock in Bancamerica-Blair Corporation representing 461,836 shares of stock, with instructions to the latter’s transfer agent to issue new certificates to the stockholders of appellant as provided in its dividend resolution of January 4, 1937. On or about January 30, 1937, stock certificates representing 403,756 shares of stock of Bancamerica-Blair Corporation were issued and delivered to the stockholders of appellant.
The taxpayer brought suit to recover the amount of the tax allegedly illegally assessed.and collected under protest; judgment was in favor of the defendant; and this appeal followed. Both appellant and appellee have agreed on the calculated amount of tax to be applied to each transaction as a result of the respective declarations of dividend, whether the determination is that the computation shall be on the certificates surrendered by the trans-feror or upon those issued or delivered to the transferees. We are not concerned, therefore, with the arithmetical amount of tax, but solely with the question stated in our opening paragraph. The appellant suggests that “This is a case of first impression and the issue involved is not specifically covered by either the law or the regulations and research has failed to disclose any reported decisions in which the issue has been considered by the courts.” After consideration of the authorities addressed to our attention in the briefs, and as a result of considerable independent research, we acknowledge that we have discovered no case, decision, statute, or regulation, which covers specifically a situation of like posture with the case at hand.
As illustrative of the problem presented and as an example of the effect of the application of the conflicting theories of appellant and appellee in the computation of the tax, we quote the following matter from appellant’s brief: “ * * * In the case of stock having a par value of $12.50 per share, as did the stock of the Bank of America, the tax on the transfer of eight shares, evidenced by one certificate, would be four cents, whereas the tax on the transfer of eight shares evidenced by eight one share certificates would be thirty-two cents. If a person transferred eight shares represented by one certificate and eight new certificates were issued to the transferee [or transferees] to represent the same stock, the tax on the transfer [or transfers] would be four cents or thirty-two cents, depending upon whether the tax should be computed on the basis of the certificate transferred and surrendered by the transferor or upon the basis of the new certificates issued to the transferee [or transferees].” The appellant concedes the transactions are taxable, disputing only the method of computing the tax and the amount payable.
In deciding the case in favor of defendant, the court below said: “ * * * Each transfer or issue of stock to a transferee constitutes a separate transaction and is taxable as such under the statute. The value or denomination of the certificates’ surrendered to effect the transfer does not determine the tax, but the denomination of certificates issued to each transferee is the basis therefor.” 37 F. Supp. 466, 467. The trial judge was of the opinion that a transfer of stock under the statute contemplates a transferor and a transferee, and it was upon that assumption that he based the statement of opinion above set out. This appears to be a common-sense, logical solution of the question.
The deliveries of the certificates by the appellant to the respective transfer agents were not in and of themselves transfers; if they were, those deliveries would have been taxable as transfers. The transfer agents were, of course, simply conduits, availed of for cancelling the certificates surrendered and issuing the shares actually transferred on to the respective transferees. Until the shares were either actually or constructively received by the transferees, the transfers were incomplete. See Phelps-Stokes Estates, Inc., v. Nixon, 222 N.Y. 93, 118 N.E. 241, 243; Hollister et al. v. United States, D.C.Wash., 38 F.Supp. 7, 8. If a transferee is a necessary party to the completion of a transfer, then the measure of that which is tranferred must be that which is actually or constructively received by the transferee. It follows, therefore, that the tax must be computed upon the basis of the shares, evidenced by the certificates received by each transferee.
Discussing this statute and the tax imposed thereby, the Supreme Court, in Raybestos-Manhattan Co., Inc., v. United States, 296 U.S. 60, 62, 63, 56 S.Ct. 63, 64, 80 L.Ed. 44, 102 A.L.R. 111, had this to say: “The stock transfer tax is a revenue measure exclusively. Its language discloses the general purpose to tax every transaction whereby the right to be or become a shareholder of a corporation or to receive any certificate of any interest in its property is surrendered by one and vested in another. [Cases cited.] While the statute speaks of transfers it does not require that the transfer shall be directly from the hand of the transferor to that of the transferee. It is enough if the right or interest transferred is, by any form of procedure, relinquished by one and vested in another. Even the ownership of a share of stock, transfer of which is admittedly taxed, is not transferred directly from one to another as is title to a chattel or to real estate. Transfer of title to the shares is effected by a form of novation by which the right of the shareholder is surrendered to the corporation in return for its recognition of a new shareholder designated by the transferor and the issue to him of a new certificate of stock. It is relinquishment of the ownership for the benefit of mother, and the resultant acquisition of it by him which calls the statute into operation." (Emphasis supplied.) The sentence emphasized above is sufficiently broad to provide ample authority for the assessment levied, and lends vigor and force to our conclusions.
The greater part of appellee’s brief is devoted to argument and authorities for support of the judgment appealed from upon a different ground than that upon which we rest our decision. The appellee argues that the declarations of dividends by the Transamerica Corporation were transfers of “rights to receive” stock and that, therefore, the tax really attached at the time of the declarations, irrespective of the certificates surrendered by Transamerica Corporation which evidenced its ownership of the shares which it distributed by the declarations of dividend. We have not pursued the theory advanced for two reasons: First, because we did not conceive it necessary to the determination of the issue before us; and, secondly, because, perhaps, the theory may not be applicable to the situation before us. This latter reason may be illustrated by aji inspection of the statute and the regulation applicable. The statute provides that . the tax shall apply to all sales, deliveries, or transfers of legal title to shares or certificates or rights to receive such shares or certificates. The regulation (71, Art. 31) provides that “The tax accrues at time of * * * transfer of the legal title to stock, or to the right * * * to receive such stock, regardless of the time * * * of the delivery of the certificate. * * * ” Transamerica Corporation did not own, possess, or transfer rights to receive shares of stock; it owned and transferred shares of stock. Subsequently to the declaration of dividend, a stockholder of Transamerica Corporation owned rights to receive shares of stock; if he transferred these rights to receive to another, that transfer would be taxable, and is obviously the type of transfer of rights to receive to which the statute and regulation refer. Compare Founders General Corp. v. Hoey, 300 U.S. 268, 274, 57 S.Ct. 457, 81 L.Ed. 639; Ladner v. Pennroad Corp., 3 Cir., 97 F.2d 10, 118 A.L.R. 1289.
Judgment affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
songer_genresp1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
Charles E. JOHNSON, Charles A. Hunter, Rodger W. Osborne, and Thomas L. Wells, individually and on behalf of all others similarly situated, Appellees, v. Mark A. LEVINE, Commissioner, Division of Correction, Maryland Department of Public Safety and Correctional Services; Ralph L. Williams, Warden, Maryland House of Correction; Robert J. Lally, Secretary, Department of Public Safety and Correctional Services; and Marvin Mandel, Governor of the State of Maryland, Appellants. Warren C. NELSON, Earl A. Curreri, Carl Jackson, Prisoners of the Maryland Penitentiary, on behalf of themselves and all others similarly situated, Appellants, v. George H. COLLINS, Warden, Maryland Penitentiary; Mary Lou Bartram, Superintendent, Maryland Reception Diagnostic and Classification Center; Mark A. Levine, Commissioner, Maryland Division of Correction; Robert J. Lally, Secretary, Maryland Department of Public Safety and Correctional Services; Henry P. Turner, Chairman, Maryland Parole Commission; Marvin Mandel, Governor of the State of Maryland; McLindsey Hawkins, Assistant Warden, Maryland Penitentiary; Sigmund Fine, Assistant Warden, Maryland Penitentiary; Maryland Division of Correction; Louis Goldstein, Member, Board of Public Works; William S. James, Member, Board of Public Works; D. J. Smith, Sergeant, Maryland Penitentiary, sued individually and in their official capacities, Appellees. Charles E. JOHNSON, Charles A. Hunter, Rodger W. Osborne, and Thomas L. Wells, individually and on behalf of all others similarly situated, Appellants, v. Mark A. LEVINE, Commissioner, Division of Correction; Maryland Department of Public Safety and Correctional Services; Ralph L. Williams, Warden, Maryland House of Correction; Robert J. Lally, Secretary, Department of Public Safety and Correctional Services; and Marvin Mandel, Governor of the State of Maryland, Appellees. Warren C. NELSON, Earl A. Curreri, Carl Jackson, Prisoners of Maryland Penitentiary, on behalf of themselves and all others similarly situated, Appellees, v. George H. COLLINS, Warden, Maryland Penitentiary; Mary Lou Bartram, Superintendent, Maryland Reception Diagnostic and Classification Center; Mark A. Levine, Commissioner, Maryland Division of Correction; Robert J. Lally, Secretary, Maryland Department of Public Safety and Correctional Services; Henry P. Turner, Chairman, Maryland Parole Commission; Marvin Mandel, Governor of the State of Maryland; McLindsey Hawkins, Assistant Warden, Maryland Penitentiary; Sigmund Fine, Assistant Warden, Maryland Penitentiary; Maryland Division of Correction; Louis Goldstein, Member, Board of Public Works; William S. James, Member, Board of Public Works; D. J. Smith, Sergeant, Maryland Penitentiary, sued individually and in their official capacities, Appellants.
Nos. 78-6416 to 78-6419.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 14, 1978.
Decided Dec. 13, 1978.
Stephen B. Caplis, Asst. Atty. Gen., George A. Nilson, Deputy Atty. Gen., Baltimore, Md. (Francis B. Burch, Atty. Gen. of Maryland and Clarence W. Sharp, Chief, Criminal Division, Asst. Atty. Gen., Baltimore, Md., on brief), for appellants.
Nevette Steele, Jr., Baltimore, Md. (Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, Md., on brief), Richard L. North, Baltimore, Md. (Mary S. Elcano, Lawrence B. Coshnear, Sandra D. Boteler, Legal Aid Bureau, Inc., Richard G. Fish-man, Keystone Legal Services, Baltimore, Md., on brief), Paul D. Bekman, Baltimore, Md. (Kaplan, Heyman, Greenberg, Engleman & Belgrad, P.A., Baltimore, Md., on brief), for appellees.
Before HAYNSWORTH, Chief Judge, and WINTER, BUTZNER, RUSSELL, WIDENER, HALL, and PHILLIPS, Circuit Judges, sitting En Banc.
PER CURIAM:
These are appeals and cross-appeals from decisions of the District Court of Maryland in which it was concluded that the conditions in two penal institutions in Maryland were in violation of the Eighth Amendment’s command against cruel and unusual punishment. Johnson v. Levine, 450 F.Supp. 648 (D.Md.1978); Nelson v. Collins, 455 F.Supp. 727 (D.Md.1978).
In Hite v. Leeke, 564 F.2d 670 (4th Cir. 1977), we held that “double-celling,” the housing of two prisoners in a cell initially designed for single occupancy, was not itself a violation of the Constitution. It, of course, may be a relevant factor when other consequences of overcrowding create deprivations or impose unusual restrictions and disadvantages upon the prison population.
In their opinions, the district judges placed great emphasis upon “double-celling,” which was extensive in both institutions, but other deprivations were also shown. The “double-celling” was clearly a consequence of overcrowding, and the overcrowding had other consequences. The physical and personnel resources of both institutions were taxed. The overcrowding limited opportunities for recreation, for instruction and rehabilitation, complicated the maintenance of sanitation, required meal service in three separate shifts and probably contributed to a high level of violence and psychological injury to some prisoners. The medical facilities and staffs were also overtaxed, and on cross-appeals there is a complaint that medical care itself was constitutionally deficient. With the elimination of substantial overcrowding, however, the deficiencies of the medical facilities, staffs and services will be diminished.
Under the totality of all of the circumstances, we conclude that the district judges properly found a constitutional violation warranting judicial direction that the overcrowding be eliminated. Overcrowding, with all of its consequences, can reach such proportions that the impact of the aggregate effect amounts to cruel and unusual punishment. We believe that the district judges reasonably found that the point had been reached here. Hence, we affirm the entry of injunctive relief directed to elimination of the overcrowded conditions, and the denial of injunctive relief directed to specific areas of alleged deficiencies such as medical care.
The district judges directed accelerating steps for the elimination of overcrowding by April 1, 1979. Maryland, however, has come forward with a detailed plan involving the construction of a new facility, incorporating the previous planned conversion of another, and the early release of prisoners thought appropriate for release which will accomplish the objective of elimination of overcrowded conditions by June 1, 1980.
The district judges imposed a short compliance timetable. It was appropriate, of course, to emphasize the fact that the situation was serious, and to require that remedial steps should be undertaken promptly. The release of prisoners properly subject to parole may proceed apace, but we are convinced that the overcrowded conditions cannot be completely eliminated without the construction and utilization of a new facility, which Maryland proposes to have available by June 1, 1980. Since the constitutional violation here is not as extreme or as shocking as in some of the reported cases, and since Maryland’s plan is practical and reasonable and will achieve the required objective of elimination of overcrowding in its penal institutions, we think its plan and its schedule deserve judicial approval.
In addition to the claims respecting the general prison populations, in Johnson the court found the conditions of imprisonment in the Special Confinement Area, a section housing mentally disturbed prisoners, were so severe they constituted cruel and unusual punishment. The judge ordered the SCA closed as soon as the inmates could be moved to state mental institutions. In Nelson the court found extended confinement in the punitive isolation unit violated the Eighth Amendment. The judge imposed limitations on the use of the cells. We affirm these findings of constitutional deprivation and the grant of appropriate relief.
The findings of constitutional overcrowding are affirmed. The decree in Johnson, insofar as it affects the Special Confinement Area, and the decree in Nelson, insofar as it deals with punitive isolation, are both affirmed. The denial of specific relief in other respects is affirmed. The cases are remanded to the district court with instructions to fashion new decrees which will incorporate Maryland’s plan and its schedule for the elimination of overcrowding in the two penal institutions.
Judge Russell and Judge Widener dissent from the conclusion that a deficiency of constitutional proportion was shown. They reserve the right later to file an opinion expressing their views.
AFFIRMED IN PART AND REMANDED.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_state
|
19
|
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".
KSLA-TV, INC., Plaintiff-Appellant Cross-Appellee, v. RADIO CORPORATION OF AMERICA, Defendant-Appellee Cross-Appellant, v. STAINLESS, INC., et al., Defendants-Appellees.
No. 81-3528.
United States Court of Appeals, Fifth Circuit.
Dec. 14, 1982.
McGlinchey, Stafford & Mintz, C.G. Nor-wood, Jr., B. Franklin Martin, New Orleans, La., for plaintiff-appellant cross-appellee.
Bodenheimer, Jones, Klotz & Simmons, G.M. Bodenheimer, Shreveport, La., for RCA.
Deutsch, Kerrigan & Stiles, Ralph L. Kas-kell, Jr., New Orleans, La., for Stainless.
Alex F. Smith, Jr., Shreveport, La., for Bethlehem Steel Corp.
Adams & Reese, Robert B. Nolan, New Orleans, La., for Lexington Ins. Co.
Cook, Yancey, King & Galloway, Herschel E. Richard, Jr., Shreveport, La., for Home Ins. Co.
Before BROWN, WISDOM and RANDALL, Circuit Judges.
PER CURIAM:
The appeal in this diversity action controlled by Louisiana law is from an order granting the defendant’s motion for summary judgment. The case involves the Louisiana preemptive statute, La.Rev.Stat. Ann. § 9:2772 (West Supp. 1981), as applied to a complaint seeking damages for the collapse of a broadcasting tower.
On May 15, 1964, KSLA of Shreveport, Louisiana, and Radio No. Corporation of America (RCA) entered into a contract for the purchase and installation of a television tower, designed to hold an RCA television antenna. The contract provided for a tower 1,709 feet in height. RCA entered into a subcontract with Stainless, Inc. to design and fabricate the tower. Stainless informed KSLA on November 17, 1964, that “installation is in accordance with Stainless, Inc. drawings and ... no outstanding deficiencies on the tower exists [sic] at this time”. On October 8, 1977, the tower collapsed due to undetermined causes. KSLA filed this action on October 4, 1978, seeking damages from RCA and Stainless in the amount of $1,269,986 for out-of-pocket expenses, and $575,000 for loss of income. RCA filed a third party complaint against Stainless and Stainless filed a third party complaint against Bethlehem Steel, which had supplied Stainless with the steel components of the tower.
Early in the litigation and before any discovery, RCA and, later, Stainless moved for summary judgment, alleging that KSLA’s claim was preempted under the ten-year liberative period that Louisiana Rev.Stat.Ann. § 9:2772 establishes for claims arising from “the construction of an improvement to immovable [real] property”. The statute is inapplicable to a contract of sale. The trial court denied these motions on the ground that resolution of the issue depended “upon the characterization of the transactions between KSLA and RCA as a construction contract or as a contract of sale”, an issue of fact inappropriate for summary disposition.
The parties then engaged in extensive discovery. When discovery had been virtually completed Stainless renewed its motion for summary judgment relying on an affidavit and numerous exhibits to establish that the transaction was a construction contract, not a contract of sale to which § 2772 would be inapplicable. KSLA filed a cross-motion for summary judgment against RCA and Stainless, asserting that the preemptive statute was inapplicable, that KSLA was entitled to a judgment in its favor for breach of warranty, and that issues of material, fact precluded summary judgment in favor of Stainless. The district court granted the motion of Stainless for summary judgment and denied KSLA’s motion for summary judgment against RCA and Stainless. Later, the court granted motions by RCA and its insurers for summary judgment against KSLA, and Stainless was awarded summary judgment on a contractual indemnity claim RCA had asserted. KSLA moved for reconsideration and on denial of this motion appealed. RCA appealed the dismissal of its claim against Stainless.
In his ruling the trial judge stated:
KSLA opposes the motion on three distinct grounds. First, KSLA continues in its belief that the transaction was a contract of sale, so that § 2772 is inapplicable. KSLA argues alternatively that, even if the transaction was a construction contract, § 2772 cannot constitutionally be applied to this particular contract. Finally, KSLA contends that § 2772 does not apply to Stainless in its capacities as materialmen and manufacturer of component parts, and that a negligence action brought against Stainless in that capacity is not barred by § 2772.
The trial judge’s opinion is well-researched, carefully reasoned, and correctly sets forth the applicable law. We adopt the opinion as our own and affirm the judgment as to the three issues the trial judge considered in his opinion. But on appeal, and in the memoranda KSLA filed in the district court on the motion for a summary judgment and also in support of the motion for reconsideration, KSLA raised two issues the trial judge did not specifically address. These are:
1) La.R.S. 9:2772 does not apply to negligence for failure to warn when the duty to warn arises from subsequently obtained knowledge; that is, knowledge of a defect obtained after the construction of the tower, here presumably the vulnerability of a tall tower to “galloping” guy wires. (The vibration of guy wires resulting from a relative low wind).
2) Preemption cannot be invoked to bar a claim against one who fraudulently conceals defects in his product.
It is evident from the record and the briefs that the plaintiff gave a low priority to these contentions. Nevertheless, they were raised and should be disposed of in the first instance by the district court. We express no opinion as to the validity of these contentions or the effect that § 9:2772 has on these claims.
The judgments of the district court on the various motions and cross-motions are AFFIRMED insofar as they are affected by the decision of the district court on the three issues discussed in its memorandum rulings. The case is REMANDED for further proceedings on the two issues not specifically addressed by the district court in its memorandum rulings.
.As amended in 1978 and 1981, § 9:2772 provides:
A. No action, whether ex contractu, ex de-licto, or otherwise, to recover on a contract or to recover damages shall be brought ... against any person performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of an improvement to immovable property:
(1) More than ten years after the date of registry in the mortgage office of acceptance of the work by owner; or
(2) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement, in whole or in part, more than ten years after the improvement has been thus occupied by the owner; .. .
B. The causes which are preempted within the time described above include any action:
(1) For any deficiency in the . . . design, planning, inspection or observation of construction, or in the construction of any improvement to immovable property;
(2) For damage to property, movable or immovable, arising out of any such deficiency;
. The completed structure, including the antenna, was 1800 feet high, had solid steel legs, and was held in position by 26 steel cables. The tower weighed 1,040,153 pounds and rested on a concrete slab weighing 104,000 pounds. Six concrete guy wire anchors, weighing 450,000 pounds and embedded 15 feet in the ground, provided additional support.
. By subsequent amendments to the complaint KSLA added as defendants Paxton National Insurance Company, Lexington Insurance Company, Zurich Insurance Company, and Home Insurance Company, alleging that they insured RCA or Stainless against the claims asserted by KSLA.
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_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.
HUNYADY v. GENERAL MOTORS CORPORATION et al.
No. 5662.
Circuit Court of Appeals, Seventh Circuit.
May 26, 1936.
F. Allan Minne and James L, Mc-Manus, both of Chicago, 111., for appellant.
Drury W. Cooper, of New York City, and S. L. Wheeler, of Milwaukee, Wis., for appellees.
Before EVANS and SPARKS, Circuit Judges, and BRIGGLE, District Judge.
SPARKS, Circuit Judge.
Appellant sued appellees for infringement of claims 19 and 20 of Hunyady Patent, No. 1,804,012. It was issued to appellant on May 5, 1931, upon an application filed February 25, 1928. The bill also sought recovery for profits and damages on account of appellees’ alleged unfair use of the patent prior to its issuance. .Infringement and unfair use were denied, and invalidity of the patent was asserted. The District Court found for appellees on each defense, and from that decree this appeal is prosecuted.
The patent relates to brakes for vehicles, and more particularly to a compensating or equalizing brake for use on a motor vehicle. One object of the invention was to provide a brake of the character described that, by a slight depression of the foot pedal, would apply the friction elements automatically in the manner desired. Other objects mentioned were economy, dependability and readiness of operation, durability in construction, simplicity and sturdiness in the formation and arrangements of the parts, and accessibility for the purpose of adjustment, replacement or repair.
The brake here disclosed is of the internal expansion type, which means that the brake shoes, or friction creating devices are inside the brake drums, and are pushed outwardly into engagement with it. In such type, the drum is attached to the wheel and rotates therewith. The friction devices are mounted upon a so-called anchor plate inside the drum. This anchor plate is non-rotatable and is attached to some non-rotating part of the vehicle, usually the axle housing. The wheel is brought to rest when the friction devices, or brake shoes, are moved radially against the inner surface of the drum. While the braking operation is taking place, the anchor plate is under severe strain because the energy of the moving vehicle is transmitted from the drum to the brake shoes and then through the anchor plate to the non-rotating part of the vehicle to which the anchor plate is attached. The internal expansion type of brake was quite old in the art at the time of appellant’s disclosure, and it had been customary to place a cover plate at the open side of the drum to prevent the entrance of dirt or other foreign substances in it. This cover plate was also non-rotatable and was usually made of comparatively light construction because there was but little strain upon it.
The braking .elements here comprise an anchor plate having an undulating edge. Lying about that edge is a similarly undulated secondary spring band, which is attached at the crests of the undulations to a circular spring band, which in turn, carries the fabric brake lining. Each end of the undulated spring band carries a lug which engages with a wedge carried by the anchor plate. When the brake is applied, the wedge forces the two lugs apart, which in turn forces the brake lining against the brake drum. The friction between the brake band and drum causes a rotative movement of the band in the direction of the revolution of the wheel so that the undulations of the secondary band will engage with the undulated perimeter of the plate, and the farther the band is moved in this direction, the tighter the undulations of the secondary band will engage with the perimeter of the plate.
The friction creating devices as such are not covered by the claims in suit, and the controversy here presented solely concerns the manner in which the anchor plate is supported. For this purpose, appellant made the cover for the open side of the brake drum of thick, strong material, bending its inner periphery into a flange which extends into the drum, and turned the edge of the flange toward the axle of the car, thereby making the cover carry the anchor plate, thus transmitting the brake-torque to the axle housing.
Claims 19 and 20 were not added to appellant’s application until April 29, 1930, more than two years after the original .application was filed. In adding these claims, he referred to his undulated anchor plate as a disk, and said, “applicant utilizes the cover member of the brake drum to mount the disk * * * upon which practically all of the brake actuating mechanism is carried.”
The findings of the District Court to which appellant excepted are as follows:
“(6) The patent in suit and the claims in issue contemplate that the shoe-supporting plate * * * shall be supported on the closure for the brake drum.”
“(9) None of Defendants’ devices embodies the combination of elements set forth in either claim in issue.
“(10) If interpreted to read upon any of Defendants’ accused structure, each of the claims in issue is- readable in the same sense upon the prior art.
“(11) There is no basis in the disclosure of the patent in suit * * * for claims 19 and 20 if interpreted to apply to any of Defendants’ accused devices.”
“(14) Defendants do not infringe patent No. 1,804,012.”
“(16) Claims 19 and 20 * * * must be limited to a supporting plate with undulated perimeter.”
We are convinced that Hunyady’s support for his anchor plate, which is the true basis for the claims in suit, was fully taught and anticipated by prior art patent to Heaslet, No. 764,357. In both Hunyady and Heaslet there is disclosed a cover plate and an anchor plate which is supported by the cover plate. In Hunyady the anchor plate is bolted to the sleeve which is integral with the cover plate, while in Heaslet the anchor plate and the cover plate are integral with the sleeve. They are substantially alike structurally, and they are alike functionally becáuse in each the cover plate must resist the entire braking torque transmitted to it from the anchor plate. In each, the removal of the cover plate would leave no support for the brake mechanism. The only difference between them is that Hunyady prevents rotation of the cover plate by bolting it to the. axle housing, while Heaslet accomplishes the same result by bolting it to two tie rods, the other ends of which are connected to the post securely fastened to the frame of the car. That detail, however, is not involved in the claims, and if it were, it would amount to a mere mechanical variation, which would not arise to the dignity of invention. New York Scaffolding Co. v. Liebel-Binney Const. Co., 254 U.S. 24, 41 S.Ct. 18, 65 L.Ed. 112.
Appellant attempts to discredit Heaslet’s disclosure on the grounds that it has no plate, and that it is not a satisfactory brake. Whether the Heaslet brake is satisfactory from a utilitarian standpoint is beside the issue here presented. At the trial appellees offered testimony with respect to the relative efficiency of brakes, and appellant properly objected to its admission on the ground that the claims in suit had no reference to the type of brake shoe. The objection was sustained and the record is void of evidence on that issue.
In brakes of this type, non-rotatable means are provided to which the friction devices, or brake shoes, are.anchored. They are variously called plates, brackets, braces, flanges, or what you will, but their functions as an anchor are identical, and for the purpose of saving weight they are usually shaped with regard to the friction devices which they carry. In appellant’s claims he uses the word “plate,” and he reads that word as signifying a circular “disk” in an effort to distinguish it from a member not having a circular contour that merely supports the braking elements. It must again be noted, however, that the claims in suit contain nothing with respect to the capacity of the braking elements, or their manner or extent of cooperation with the brake drum. Other claims of the patent contain those features but they are not here in issue. If, as appellant urges, we attach special significance to his use of the word- “plate,” other than as a support for the friction creating devices, then it is imperative, as appellees suggest, that the claims be limited to a plate with an undulated perimeter which cooperates in the braking operation. Appellant’s testimony, however, is not consistent with his contention in this respect. He testified that he began‘work in 1921 on a brake construction involving a supporting plate, which he illustrated with drawings. One was bracket-shaped, one w-as not circular, another was not flat, nor was it in the center line of the structure, and another was in the shape of a keystone, and he referred to all of them as “plates.” The plain language of the claims does not limit the plates to any particular shape, and in bringing this action appellant does not otherwise interpret them, for the accused structures cover a great variety of plate shapes, and none of them are circular, and all of them are copied from, or are equivalent to, the prior art. If, therefore, they are now to be considered infringements, thfey of necessity w'ere anticipatory of appellant’s disclosure. Aside from lack of novelty, the claims in issue must be held void for late assertion. See Chicago & N. W. Railway Co. v. Sayles, 97 U.S. 554, 24 L.Ed. 1053.
With, respect to infringement, little need be said. In none of the accused structures is the cover plate attached to the anchor plate, nor does it support the anchor plate or the brake shoes or the friction devices. It might be removed- and yet the brake would work perfectly, for there is no cooperative relation, between it and the anchor plate. This is not true of appellant’s disclosure, for if his cover plate were removed, the brake would cease to function, because the cover plate is the sole support of the anchor plate.
Appellees’ accused structures closely follow standard constructions of the prior art, which were exhibited in evidence. Baker No. 1,132,541; Schaeffer No. 1,490,-639; Bendix No. 1,689,767; the Panhard practice of. 1911; Olivier No. 1,761,933; and the Huck brake which was in production by appellees in May, 1928. In none of these structures does the cover plate support the anchor plate, and the record discloses no other structure, save Hunyady and Heaslet, wherein the cover plate supports the anchor plate. Hunyady admits that his brake has had no commercial use, and for that reason it must be construed as a mere paper patent. Only one such brake was ever made, and it was exhibited in evidence. It is obvious that when Hunyady filed his application he was interested only in friction creating devices and not in the anchor plate and its support, for he did not file the claims in issue until more than two years afterwards. This was at a time when appellees were using structures closely following, if not actually copying, the prior art which anticipated or clearly taught everything which appellees have since used, or which Hunyady disclosed, excepting the use of the cover plate as a support for the anchor plate.
It is true that Hunyady submitted his brake to General Motors in February, 1928, but this was before the claims in-suit were made and filed. His application then contained only claims directed to his anchor plate with the undulated perimeter, and appellees then had no reason to” regard the means for supporting the anchor plate as a part of Hunyady’s invention. If so, that fact constitutes no basis for this action, for appellees have never used it.
Appellant’s submission of his brake to General Motors in February, 1928, constitutes the basis upon- which he claims unfair use. The record discloses that the patent was not submitted, but merely the disk with the undulating perimeter, the undulating band, and the lug members which cause the relative displacement of the two to cause setting of the brake band upon the brake drum. At that time, the patent had not issued, nor had the claims in issue been asserted. Within a short time, the General Motors Corporation returned appellant’s brake construction to him and notified him that it could not use it. The record discloses no appropriation by appellees of any part of the structure. We are only concerned, however, with that part of it which was subsequently covered by claims 19 and 20, and it is obvious that appellees have never infringed either of them.
We find no error in the record and the decree is
Affirmed.
“19. A brake mechanism for wheels of motor vehicles comprising a brake-drum, a cover-member for the open side thereof, supporting means extending from said cover-member intd said drum, a plate secured to said means, and friction creating devices mounted on said plate and including elements adapted to co-act with said drum.
“20.' A brake mechanism for wheels of motor vehicles comprising a rotatable brake-drum, an axle-member upon which the wheel is mounted, a cover for the open side of said drum and extending around said axle-member, annular supporting means extending from said cover into said drum around th.e axle-member, a plate secured to said supporting means within the drum and having an opening through which the axle-member extends, and friction creating devices connected to said plate and including elements adapted to coact with said drum.”
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
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.
INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS, BLACKSMITHS, FORGERS AND HELPERS, AFL-CIO v. HARDEMAN
No. 123.
Argued December 16, 1970
Decided February 24, 1971
BreNNAN, J., delivered the opinion of the Court, in which Burger, C. J., and BlacK, HarlaN, Stewart, White, Marshall, and Blacicmun, JJ., joined. White, J., filed a concurring opinion, post, p. 247. Douglas, J., filed a dissenting opinion, post, p. 247.
Louis Sherman argued the cause for petitioner. With him on the brief were Blihu I. Leifer and Bernard Cushman.
Robert E. McDonald, Jr., argued the cause and filed a brief for respondent.
J. Albert Woll, Laurence Gold, and Thomas E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations, AFL-CIO, as amicus curiae urging reversal.
Mr. Justice Brennan
delivered the opinion of the Court.
Section 102 of the Labor-Management Reporting and Disclosure Act (hereafter LMRDA) provides that a union member who charges that his union violated his rights under Title I of the Act may bring a civil action against the union in a district court of the United States for appropriate relief. Respondent was expelled from membership in petitioner union and brought this action under § 102 in the District Court for the Southern District of Alabama. He alleged that in expelling him the petitioner violated § 101 (a) (5) of the Act, 73 Stat. 523, 29 U. S. C. § 411 (a) (5) which provides: “No member of any labor organization may be fined, suspended, expelled, or otherwise disciplined except for nonpayment of dues by such organization or by any officer thereof unless such member has been (A) served with written specific charges; (B) given a reasonable time to prepare his defense; (C) afforded a full and fair hearing.” A jury awarded respondent damages of $152,150. The Court of Appeals for the Fifth Circuit affirmed. 420 F. 2d 485 (1969). We granted certiorari limited to the questions whether the subject matter of the suit was pre-empted because exclusively within the competence of the National Labor Relations Board and, if not pre-empted, whether the courts below had applied the proper standard of review to the union proceedings, 398 U. S. 926 (1970). We reverse.
The case arises out of events in the early part of October 1960. Respondent, George Hardeman, is a boilermaker. He was then a member of petitioner’s Local Lodge 112. On October 3, he went to the union hiring hall to see Herman Wise, business manager of the Local Lodge and the official responsible for referring workmen for jobs. Hardeman had talked to a friend of his, an employer who had promised to ask for him by name for a job in the vicinity. He sought assurance from Wise that he would be referred for the job. When Wise refused to make a definite commitment, Hardeman threatened violence if no work was forthcoming in the next few days.
On October 4, Hardeman returned to the hiring hall and waited for a referral. None was forthcoming. The next day, in his words, he “went to the hall . . . and waited from the time the hall opened until we had the trouble. I tried to make up my mind what to do, whether to sue the Local or Wise or beat hell out of Wise, and then I made up my mind.” When Wise came out of his office to go to a local jobsite, as required by his duties as business manager, Hardeman handed him a copy of a telegram asking for Hardeman by name. As Wise was reading the telegram, Hardeman began punching him in the face.
Hardeman was tried for this conduct on charges of creating dissension and working against the interest and harmony of the Local Lodge, and of threatening and using force to restrain an officer of the Local Lodge from properly discharging the duties of his office. The trial committee found him "guilty as charged,” and the Local Lodge sustained the finding and voted his expulsion for an indefinite period. Internal union review of this action, instituted by Hardeman, modified neither the verdict nor the penalty. Five years later, Hardeman brought this suit alleging that petitioner violated § 101 (a) (5) by denying him a full and fair hearing in the union disciplinary proceedings.
I
We consider first the union’s claim that the subject matter of this lawsuit is, in the first instance, within the exclusive competence of the National Labor Relations Board. The union argues that the gravamen of Harde-man’s complaint — which did not seek reinstatement, but only damages for wrongful expulsion, consisting of loss of income, loss of pension and insurance rights, mental anguish and punitive damages — is discrimination against him in job referrals; that any such conduct on the part of the union is at the very least arguably an unfair labor practice under §§8 (b)(1)(A) and 8 (b)(2) of the National Labor Relations Act, 61 Stat. 141, as amended, 29 U. S. C. §§ 158 (b)(1)(A), 158 (b)(2); and that in such circumstances, “the federal courts must defer to the exclusive competence of the National Labor Relations Board if the danger of . . . interference with national policy is to be averted.” San Diego Building Trades Council v. Garmon, 359 U. S. 236, 245 (1959); see Local 100, Journeymen v. Borden, 373 U. S. 690 (1963).
We think the union’s argument is misdirected. Harde-man’s complaint alleged that his expulsion was unlawful under §101 (a)(5), and sought compensation for the consequences of the claimed wrongful expulsion. The critical issue presented by Hardeman’s complaint was whether the union disciplinary proceedings had denied him a full and fair hearing within the meaning of § 101 (a) (5) (C) . Unless he could establish this claim, Harde-man would be out of court. We hold that this claim was not within the exclusive competence of the National Labor Relations Board.
“ ‘The doctrine of 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. Co., 352 U. S. 59, 63-64. The doctrine is based on the principle ‘that in cases raising issues of fact not within the conventional experience of judges or cases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over,’ Far East Conference v. United States, 342 U. S. 570, 574, and ‘requires judicial abstention in cases where protection of the integrity of a regulatory scheme dictates preliminary resort to the agency which administers the scheme,’ United States v. Philadelphia Nat. Bank, 374 U. S. 321, 353.” Local 189, Amalgamated Meat Cutters v. Jewel Tea Co., 381 U. S. 676, 684-685 (1965) (opinion of White, J., announcing judgment).
Those factors suggesting that resort must be had to the administrative process are absent from the present case. The fairness of an internal union disciplinary proceeding is hardly a question beyond “the conventional experience of judges,” nor can it be said to raise issues “within the special competence” of the NLRB. See NLRB v. Allis-Chalmers Mfg. Co., 388 U. S. 175, 181, 193-194 (1967). As we noted in that case, the 86th Congress which enacted § 101 (a) (5) was “plainly of the view” that the protections embodied therein were new material in the body of federal labor law. 388 U. S., at 194. And that same Congress explicitly referred claims under § 101 (a)(5), not to the NLRB, but to the federal district courts. This is made explicit in the opening sentence of § 102: “Any person whose rights secured by the provisions of this title have been infringed by any violation of this titlA may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate.” Of course, “[t]he purpose of Congress is the ultimate touchstone.” Retail Clerks Local 1625 v. Schermerhorn, 375 U. S. 96, 103 (1963). And in § 102 Congress has clearly indicated a purpose to refer claims regarding violation of § 101 (a) (5) to the district courts.
The union argues that Hardeman’s suit should nevertheless have been dismissed because he did not seek an injunction restoring him to membership, and because he did seek damages for loss of employment said to be the consequence of his expulsion from the union. Taken together, these factors are said to shift the primary focus of the action from a review of Hardeman’s expulsion to a review of alleged union discrimination against him in job referrals. Since this is a matter normally within the exclusive competence of the NLRB, see Local 100, Journeymen v. Borden, 373 U. S., at 695-696, the union argues that Hardeman’s suit was beyond the competence of the district court.
The argument has no merit. To begin with, the language of § 102 does not appear to make the availability of damages turn upon whether an injunction is requested as well. If anything, § 102 contemplates that damages will be the usual, and injunctions the extraordinary form of relief. Requiring that injunctive relief be sought as a precondition to damages would have little effect other than to force plaintiffs, as a matter of course, to add a few words to their complaints seeking an undesired injunction. We see no reason to import into § 102 so trivial a requirement.
Nor are our prior cases authority for such a result. We have repeatedly held, of course, that state law may not regulate conduct either protected or prohibited by the National Labor Relations Act. Local 100, Journeymen v. Borden, supra; San Diego Building Trades Council v. Garmon, 359 U. S., at 244; Weber v. Anheuser-Busch, Inc., 348 U. S. 468, 480-481 (1955); Garner v. Teamsters Union, 346 U. S. 485, 490-491 (1953). Where it has not been clear whether particular conduct is protected, prohibited, or left to state regulation by that Act, we have likewise required courts to stay their hand, for “courts are not primary tribunals to adjudicate such issues. It is essential to the administration of the Act that these determinations be left in the first instance to the National Labor Relations Board.” Building Trades Council v. Garmon, supra, at 244-245. Nor may courts intervene in such matters even to apply the National Labor Relations Act, except by the normal mechanism of review of actions of the NLRB. For recognizing that “[a] multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law,” Garner v. Teamsters Union, supra, at 490-491, Congress confided to the NLRB the primary power of interpretation and application of the Act. See Guss v. Utah Labor Relations Board, 353 U. S. 1 (1957).
The present case, however, implicates none of the principles discussed above. There is no attempt, in this lawsuit, to apply state law to matters pre-empted by federal authority. Nor is there an attempt to apply federal law of general application, which is limited in the particular circumstances by the National Labor Relations Act. Nor is there an attempt to have the District Court enforce the provisions of the National Labor Relations Act itself, without guidance from the NLRB. As we have said, the critical question in this action is whether Hardeman was afforded the rights guaranteed him by § 101 (a) (5) of the LMRDA. If he was denied them, Congress has said that he is entitled to damages for the consequences of that denial. Since these questions are irrelevant to the legality of conduct under the National Labor Relations Act, there is no danger of conflicting interpretation of its provisions. And since the law applied is federal law explicitly made applicable to such circumstances by Congress, there is no danger that state law may come in through the back door to regulate conduct that has been removed by Congress from state control. Accordingly, this action was within the competence of the District Court.
II
Two charges were brought against Hardeman in the union disciplinary proceedings. He was charged with violation of Art. XIII, § 1, of the Subordinate Lodge Constitution, which forbids attempting to create dissension or working against the interest and harmony of the union, and carries a penalty of expulsion. He was also charged with violation of Art. XII, § 1, of the Subordinate Lodge By-Laws, which forbids the threat or use of force against any officer of the union in order to prevent him from properly discharging the duties of his office; violation may be punished “as warranted by the offense.” Hardeman’s conviction on both charges was upheld in internal union procedures for review.
The trial judge instructed the jury that “whether or not he [respondent] was rightfully or wrongfully discharged or expelled is a pure question of law for me to determine.” He assumed, but did not decide, that the transcript of the union disciplinary hearing contained evidence adequate to support conviction of violating Art. XII. He held, however, that there was no evidence at all in the transcript of the union disciplinary proceedings to support the charge of violating Art. XIII. This holding appears to have been based on the Fifth Circuit’s decision in Boilermakers v. Braswell, 388 F. 2d 193 (CA5 1968). There the Court of Appeals for the Fifth Circuit had reasoned that “penal provisions in union constitutions must be strictly construed,” and that as so construed Art. XIII was directed only to “threats to the union as an organization and to the effective carrying out of the union’s aims,” not to merely personal altercations. 388 F. 2d, at 199. Since the union tribunal had returned only a general verdict, and since one of the charges was thought to be supported by no evidence whatsoever, the trial judge held that Harde-man had been deprived of the full and fair hearing guaranteed by § 101 (a) (5) . The Court of Appeals affirmed, simply citing Braswell. 420 F. 2d 485 (CA5 1969).
We find nothing in either the language or the legislative history of § 101 (a)(5) that could justify such a substitution of judicial for union authority to interpret the union’s regulations in order to determine the scope of offenses warranting discipline of union members. Section 101 (a)(5) began life as a floor amendment to S. 1555, the Kennedy-Ervin Bill, in the 86th Congress. As proposed by Senator McClellan, and as adopted by the Senate on April 22, 1959, the amendment would have forbidden discipline of union members “except for breach of a published written rule of [the union].”. 105 Cong. Rec. 6476, 6492-6493. But this language did not long survive. Two days later, a substitute amendment was offered by Senator Kuchel, who explained that further study of the McClellan amendment had raised “some rather vexing questions.” Id., at 6720. The Kuchel substitute, adopted the following day, deleted the requirement that charges be based upon a previously published, written union rule; it transformed Senator McClellan’s amendment, in relevant part, into the present language of § 101 (a)(5). Id., at 6720, 6727. As so amended, S. 1555 passed the Senate on April 25. Id., at 6745. Identical language was adopted by the House, id., at 15884, 15891, and appears in the statute as finally enacted.
The Congress understood that Senator Kuchel’s amendment was intended to make substantive changes in Senator McClellan’s proposal. Senator Kennedy had specifically objected to the McClellan amendment because
“In the case of . . . the . . . official who bribed a judge, unless there were a specific prohibition against bribery of judicial officers written into the constitution of the union, then no union could take disciplinary action against [an] officer or member guilty of bribery.
“It seems to me that we can trust union officers to run their affairs better than that.” Id., at 6491.
Senator Kuchel described his substitute as merely providing “the usual reasonable constitutional basis” for union disciplinary proceedings: union members were to have “constitutionally reasonable notice and a reasonable hearing.” Id., at 6720. After the Kuchel amendment passed the Senate, Senator Goldwater explained it to the House Committee on Labor and Education as follows:
“[T]he bill of rights in the Senate bill requires that the union member be served with written specific charges prior to any disciplinary proceedings but it does not require that these charges, to be valid, must be based on activity that the union had proscribed prior to the union member having engaged in such activity.” Labor-Management Reform Legislation, Hearings before a Joint Subcommittee of the House Committee on Education and Labor, 86th Cong., 1st Sess., pt. 4, p. 1595 (1959).
And Senator McClellan’s testimony was to the same effect. Id., pt. 5, pp. 2235-2236, 2251, 2285.
We think that this is sufficient to indicate that § 101 (a)(5) was not intended to authorize courts to determine the scope of offenses for which a union may discipline its members. And if a union may discipline its members for offenses not proscribed by written rules at all, it is surely a futile exercise for a court to construe the written rules in order to determine whether particular conduct falls within or without their scope.
Of course, § 101 (a) (5) (A) requires that a member subject to discipline be “served with written specific charges.” These charges must be, in Senator McClellan’s words, “specific enough to inform the accused member of the offense that he has allegedly committed.” Where, as here, the union’s charges make reference to specific written provisions, § 101 (a) (5) (A) obviously empowers the federal courts to examine those provisions and determine whether the union member had been misled or otherwise prejudiced in the presentation of his defense. But it gives courts no warrant to scrutinize the union regulations in order to determine whether particular conduct may be punished at all.
Respondent does not suggest, and we cannot discern, any possibility of prejudice in the present case. Although the notice of charges with which he was served does not appear as such in the record, the transcript of the union hearing indicates that the notice did not confine itself to a mere statement or citation of the written regulations that Hardeman was said to have violated: the notice appears to have contained a detailed statement of the facts relating to the fight that formed the basis for the disciplinary action. Section 101 (a)(5) requires no more.
Ill
There remains only the question whether the evidence in the union disciplinary proceeding was sufficient to support the finding of guilt. Section 101 (a)(5)(C) of the LMRDA guarantees union members a “full and fair” disciplinary hearing, and the parties and the lower federal courts are in full agreement that this guarantee requires the charging party to provide some evidence at the disciplinary hearing to support the charges made. This is the proper standard of judicial review. We have repeatedly held that conviction on charges unsupported by any evidence is a denial of due process, Thompson v. Louisville, 362 U. S. 199, 206 (1960); Schware v. Board of Bar Examiners, 353 U. S. 232, 246-247 (1957); Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 106 (1927); Tisi v. Tod, 264 U. S. 131, 133-134 (1924); and we feel that § 101 (a) (5) (C) may fairly be said to import a similar requirement into union disciplinary proceedings. Senator Kuchel, who first introduced the provision, characterized it on the Senate floor as requiring the “usual reasonable constitutional basis” for disciplinary action, 105 Cong. Rec. 6720, and any lesser standard would make useless § 101 (a)(5)(A)’s requirement of written, specific charges. A stricter standard, on the other hand, would be inconsistent with the apparent congressional intent to allow unions to govern their own affairs, and would require courts to judge the credibility of witnesses on the basis of what would be at best a cold record.
Applying this standard to the present case, we think there is no question that the charges were adequately supported. Respondent was charged with having attacked Wise without warning, and with continuing to beat him for some time. Wise so testified at the disciplinary hearing, and his testimony was fully corroborated by one other witness to the altercation. Even Hardeman, although he claimed he was thereafter held and beaten, admitted having struck the first blow. On such a record there is no question but that the charges were supported by "some evidence.”
Reversed.
Section 102 of the Act, 73 Stat. 523, 29 U. S. C. § 412, provides:
“Any person whose rights secured by the provisions of this title have been infringed by any violation of this title may bring a civil action in a district court of the United States for such relief (including injunctions) as may be appropriate. Any such action against a labor organization shall be brought in the district court of the United States for the district where the alleged violation occurred, or where the principal office of such labor organization is located.”
The affirmance was on the basis of Boilermakers v. Braswell, 388 F. 2d 193 (CA5 1968).
Article XIII, § 1, of the Subordinate Lodge Constitution then in force provided:
“Any member who endeavors to create dissension among the members; or who works against the interest and harmony of the International Brotherhood or of any District or Subordinate Lodge; who advocates or encourages a division of the funds, or the dissolution of any District or Subordinate Lodge, or the separation of any District or Subordinate Lodge from the International Brotherhood; who supports or becomes a member of any dual or subversive organization which shall be hostile to the International Brotherhood or to any of its Subordinate Lodges, or which is antagonistic to the principles and purposes of the International Brotherhood, shall upon conviction thereof be punished by expulsion from the International Brotherhood.”
Article XII, § 1, of the Subordinate Lodge By-Laws then in force provided that: “It shall be a violation of these By-Laws for any member through the use of force or violence or the threat of the use of force or violence to restrain, coerce or intimidate, or attempt to restrain, coerce or intimidate any official of this International Brotherhood or Subordinate Lodge to prevent or attempt to prevent him from properly discharging the duties of his office.” Violators of Art. XII are to “be punished as warranted by the offense.”
Hardeman’s complaint did not claim that the charges were insufficiently specific, or that he did not have adequate time to prepare his defense in the union proceedings.
See Boilermakers v. Braswell, 388 F. 2d, at 195-197. Accord, Rekant v. Shochtay-Gasos Local 446, 320 F. 2d 271, 273-275 (CA3 1963); Parks v. Electrical Workers, 314 F. 2d 886, 922-923 (CA4 1963); Addison v. Machinists, 300 F. 2d 863 (CA9 1962); Machinists v. King, 335 F. 2d 340, 346-347 (CA9 1964).
See n. 3, supra.
See n. 4, supra.
388 F. 2d, at 198, quoting Allen v. Theatrical Employees, 338 F. 2d 309, 316 (CA5 1964).
This reasoning was noted but not specifically endorsed in Braswell, 388 F. 2d, at 198.
State law, in many circumstances, may go further. See Summers, The Law of Union Discipline: What the Courts Do in Fact, 70 Yale L. J. 175 (1960). But Congress, which preserved state law remedies by § 103 of the LMRDA, 29 U. S. C. § 413, was well aware that even the broad language of Senator McClellan’s original proposal was more limited in scope than much state law. See 105 Cong. Rec. 6481-6489.
Labor-Management Reform Legislation, Hearings before a Joint Subcommittee of the House Committee on Education and Labor, 86th Cong., 1st Sess., pt. 5, p. 2285 (1959).
See tr. of union disciplinary hearing 26-28, 76.
Vars v. Boilermakers, 320 F. 2d 576 (CA2 1963); Rosen v. Painters, 198 F. Supp. 46 (SDNY 1961), appeal dismissed, 326 F. 2d 400 (CA2 1964); Lewis v. American Federation of State Employees, 407 F. 2d 1185 (CA3 1969); Boilermakers v. Braswell, 388 F. 2d 193 (CA5 1968); Burke v. Boilermakers, 417 F. 2d 1063 (CA9 1969), affirming 302 F. Supp. 1345 (ND Cal. 1967).
Although a transcript was made of the union proceedings in the present case, we have no reason to believe that this is a universal practice,
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_numresp
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99
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
PORTER v. SHIBE et al. SAME v. DARLINGTON, Inc., et al.
Nos. 3393, 3403.
Circuit Court of Appeals, Tenth Circuit.
Nov. 5, 1946.
Irving M. Gruber, Chief, Gen. Litigation Branch, of Washington, D. C. (George Moncharsh, Dep. Admin, for Enforcement, David London, Director, Litigation Div., Leanora S. Gruber, Atty., Jacob W. Rosenthal, Atty., Office of Price Administration, all of Washington, D. C., Max D. Melville and William W. McNeill, Regional Litigation Attys., both of Denver, Colo., Office of Price Administration, and Glen V. Graf, Atty., of Kansas City, Mo., Office of Price Administration, on the brief), for appellant.
Paul L. Thomas and Walter G. Klamm both of Kansas City, Kan., for appellees Agnes and Arthur Shibe.
Victor A. Miller, of Denver, Colo., for appellees Darlington, Inc., and others.
Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.
PHILLIPS, Circuit Judge.
In No. 3393 the facts are these:
The Shibes are the owners of premises, commonly known as 1412 Freeman Avenue, Kansas City, Kansas. A two-room apartment on the first floor of such premises was occupied by A. Miller and his wife, as tenants from week to week. On July 9, 1946, Arthur Shibe personally served upon Miller a written notice „to terminate the tenancy on July 22, 1946. The rent was due on that date. The Millers did not vacate the premises. On July 27, 1946, the Shibes served upon Miller a three-day notice, in compliance with the laws of Kansas, that a peaceable entry and forcible detainer action would be filed against them. On August 1, 1946, the Shibes filed such action against the Millers in the City Court of Kansas City, Kansas. The cause came on for trial on August 7, 1946. Both the Shibes and Millers were represented by counsel at the trial, and John Clark, Junior Area Rent Attorney for the Office of Price Administration, appeared in behalf of the Area Rent Office. The City Court found that the Shibes had complied with the laws of Kansas, and that under such laws the Shibes were entitled to possession, and entered a judgment awarding them possession.
Thereafter, the Office of Price Administration instituted proceedings in the United States District Court for the District of Kansas, seeking an injunction against the Shibes’ evicting the Millers from the apartment. The trial court denied the preliminary injunction. A judge of this court granted a temporary restraining order. The Administrator appealed from the order denying the temporary injunction.
In No. 3403 the facts are these:
The Darlington, Inc., is the owner of the Darlington Apartment Building situated in Denver, Colorado. Prior to June 30, 1946, C. B. King and his wife were tenants in an apartment in the building. The maximum rent for the apartment was $40 per month, which included the furnishing of cooking gas by the landlord. On July 5, 1946, Darlington served a notice on the tenants terminating the rental agreement on July 15, 1946, and demanding that the tenants leave the premises on. or before that date. The rental agreement contained the following provision: “Tenant agrees that upon failure to vacate in due time, upon rightful and legal notice from the Owner so to do, or upon abandonment, or in order to take possession of property above liened, Owner or its agent may reenter and take possession without suit, using such force as may be necessary for that purpose without liability, and without impairing any security or present or future right of action held by Owner for rent.”
Under Colorado law, where a lease contains such a provision, the landlord may enter and remove the tenant upon covenant broken if he uses no unnecessary force to accomplish the purpose. Representatives of Darlington undertook.to evict the Kings upon the expiration of the notice period. King physically resisted eviction. On the morning of July 25, 1946, the maintenance man for Darlington found the valve in the gas line to the apartment leaking and in need of repairs, and turned off the gas. On August 6, 1946, the Administrator brought this action for a mandatory injunction restraining Darlington from decreasing or eliminating the services provided on the date determining the maximum rent applicable to the apartment and from removing or attempting to remove the Kings from the apartment. A temporary restraining order requiring Darlington to restore the gas service was issued on August 9, 1946, and pursuant thereto Darling-ton turned the gas on again. The restraining order was vacated and a preliminary injunction denied on August 20. Darling-ton, however, agreed to allow the gas to remain on until the decision on this appeal. The Administrator has appealed from the order denying the preliminary injunction.
The Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 901 et seq., expired on June 30, 1946. By Public Law 548, approved July 25, 1946, it was extended to June 30, 1947. Section 18 of that Act in part provides: “Sec. 18. (1) The provision of this Act shall take as effect of June 30, 1946, and (2) • all regulations, orders, price schedules, and requirements under the Emergency Price Control Act of 1942, as amended * * * and the Stabilization Act of 1942, as amended, which were in effect on June 30, 1946, shall be in effect in the same manner and to the same extent as if this Act had been enacted on June 30, 1946, * * *: Provided further, That no act or transaction, or omission or failure to act, occurring subsequent to June 30, 1946, and prior to the date of enactment of this Act shall be deemed to be a violation of the Emergency Price Control Act of 1942, as amended, or the stabilization Act of 1942, as amended, or of any regulation, order, price schedule, or requirement under either of such Acts: * * 50 U.S.C.A.Appendix, § 901a note.
It is clear from this section that Congress intended to make such Acts, and the Regulations which had been promulgated thereunder, retroactive to June 30, 1946, with the proviso that there should be no civil or criminal liability for any act, transaction, omission, or failure to act, occurring subsequent to June 30, 1946, and prior to July 25, 1946.
It is clear that in both cases, the tenants, in the interim between June 30, 1946, and July 25, 1946, lost their right to continue in the occupancy of the leased premises under their leases and under state law.
The applicable Regulations made effective from June 30, 1946, are set forth in the margin.
It will be observed that, under such Regulations, the landlord, where there is an immediate compelling necessity, may recover possession of the housing accommodations for use and occupancy as a dwelling for himself, and that a purchaser may acquire possession of the housing accommodations, and that the landlord may evict the tenant for failure to pay rent, for the tenant’s refusal of access to the landlord, for violation of an obligation of his tenancy, for the commission of nuisance by the tenant, or for permitting the housing accommodations to be used for an illegal or immoral purpose. .
The standard laid down by the Act is fair and equitable rent, and where the rent fixed is not fair and equitable, the landlord has administrative remedies open to him. We must assume, therefore, that the maximum rentals fixed for the housing accommodations here involved are fair and equitable.
Of course, we cannot pass on the validity of the Regulations per se. But we can pass on the validity of the Act of Congress which made 'the Regulations effective retroactively.
Thé Act of July 25, 1946, was enacted by the Congress in the exercisé of its war power. The war power is a broad and comprehensive grant. It is “well-nigh limitless.” It embraces those powers necessary to maintain our national defense and security. It is essential to the preservation of our country as an independent nation and the perpetuity of our liberties. While the war power is subject to the limitations of the Fifth Amendment, the courts must guard against impairing its essential attributes or endangering the ability of the nation to maintain its defense and security and its status as a' free and independent state.
Under the Regulations, unless the landlord seeks recovery of possession of the leased premises for use and occupancy as a dwelling for himself, ór a purchaser of the leased premises from the landlord seeks occupancy thereof for himself, the landlord must continue to rent to his former tenant although the latter’s lease has expired, his right to occupancy has expired, or he is subject to removal from the premises under state law, so long as the tenant pays the rent fixed by the Administrator and does none of the things affording ground for eviction under the provisions of the Regulations. Thus, it will be seen that the effect of the Regulations is to deprive the owner of the right of possession of the leased premises to which he would otherwise be entitled, except in case he desires possession for his own occupancy, or a purchaser thereof desires them for his own occupancy. For that deprivation, the Regulations provide for the payment of fair and equitable rent to the owner and afford protection to the owner’s interest against wrongful acts of the tenant.
We do not see any material difference in cases where the Regulations operate retrospectively and where they apply prospectively to a tenant whose lease has expired, or who has otherwise lost his right to occupancy under the terms of the lease or of state law. In either case, the question is whether the Regulations deprive the landlord of his right of possession without due process of law and without just compensation in violation of the Fifth Amendment.
For the use of the housing accommodation, fair and equitable rent is just compensation.
The due process guaranty of the Fifth Amendment demands only that the law shall not be unreasonable, arbitrary, or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained.
If the statute is an appropriate means to a permitted end, there is little scope for the operation of the due process clause.
The Regulations here involved adequately protect the landlord’s interests. They are not unreasonable, arbitrary, or capricious, and they have a real and substantial relation to the object sought to be attained, namely, the protection of the national defense and security by preventing inflation and its consequences, and the making of housing accommodations available in defense-rental areas at non-inflationary rentals.
Hence, we conclude that the Regulations do not deprive the landlord of his right of possession, without due process of law or without just compensation.
Rent Regulation § 3 in part reads; “ * * * every landlord shall, as a minimum, provide with housing accommodations the same essential services, * * * as those provided on the date determining the maximum rent, * *
May Darlington be required to restore the cooking gas service?
It is suggested by counsel in No. 3403 that, under Colorado law, Darlington might lawfully have removed the doors and windows in the apartment, or even have tom down the apartment during the period between June 30, and July 25, 1946, and had it done so, it could not now be constitutionally required to restore the leased premises. Obviously, a requirement that would involve substantial outlays by Dar-lington, and for which it would receive no compensation, differs materially from the situation here presented. The turning on of the gas involves merely the opening of a valve in the supply line and the cost thereof, if any, to Darlington would be trivial.
When applied to the facts here presented, to construe Regulation § 3 as applicable to a service discontinued between June 30, and July 25, 1946, would not, in our opinion, render the Act of July 25, 1946, unconstitutional.
A law is not unconstitutional merely because it results in financial injury to a citizen where it is reasonably necessary to preserve important public interests. Neither is it unconstitutional because it preserves one interest over another if there is a preponderant public concern in the preservation of the one over the other. Here, the important national interest is the making available to tenants of housing accommodations in important defense-rental areas at non-inflationary rentals in furtherance of the national defense and security.
Many of the lawful demands made on the citizen in the exercise of the war power result in financial loss to the citizen. Individual suffering and sacrifice are inevitable concomitants of war. Moreover, here the financial injury is nominal only and not substantial.
The causes, are reversed and' remand.ed, with instructions to vacate the orders denying injunctive relief and to proceed further in accordance with the views herein expressed.
Goshen v. People, 22 Colo. 270, 44 P. 503.
Sections 6(a) and (b) of the Rent Regulations, which were made retroactive by the Act of July 25, 1946, in part provide:
“§ 6. Removal of tenant — (a) Restrictions on removal of tenant. So long as the tenant continues to pay the rent to which the landlord is entitled, no tenant shall be removed fi’om any housing accommodations, by action to evict or to recover possession, by exclusion from possession, or otherwise, nor shall any person attempt such removal or exclusion from possession, notwithstanding that such tenant has no lease or that his lease or other rental agreement has expired or otherwise terminated, * * * unless:
“(1) Tenant’s refusal to renew lease. The tenant, who had a written lease or other written rental agreement, has refused upon demand of the landlord to execute a written extension or renewal thereof for a further term of like duration, or if the lease was for a term of less than one year but more than three months and was non-seasonal in character, for a term of not more than one year, for a rent not in excess of the maximum rent, but otherwise on the same terms and conditions as the previous lease or agreement, except insofar as such terms and conditions are inconsistent with this regulation; or
“(2) Tenant’s refusal of access to landlord,. The tenant has unreasonably refused the landlord’s access to the housing accommodations for the purpose of inspection or of showing the accommodations to a prospective purchaser, mortgagee, or prospective mortgagee, or other person having a legitimate interest therein: * * *
“(3) Violating obligation of tenancy or committing nuisance. The tenant (i) has violated a substantial obligation of his tenancy, other than an obligation to pay rent, and has continued, or failed to cure, such violation after written notice by the landlord that the violation cease, or (ii) is committing or permitting a nuisance or is using or permitting a use of the housing accommodations for an immoral or illegal purpose; * _ * *
“(6) Occupancy, by landlord. The landlord owned, or acquired an enforceable right to buy or the right to possession of, the housing accommodations prior to the effective date of regulation (or prior to October 20, 1942 where the effective date of regulation is prior to that date, * * *),' and has an immediate compelling necessity to recover possession of such accommodations for use and occupancy as a dwelling for himself, or has served during the period of the war emergency in the armed forces of the United States and in good faith seeks possession for his own occupancy. & * *
“(b) Administrator’s certificate — (1) Removals wot inconsistent icith Act or regulation. No tenant shall be removed or evicted on grounds other than those stated above unless, on petition of the landlord, the Administrator certifies that the landlord may pursue his remedies in accordance with the requirements of the local law. The Administrator shall so certify if the landlord establishes that removals or evictions of the character proposed are not inconsistent with the purposes of the Act or this regulation and would not be likely to result in the circumvention or evasion thereof. * * *
“(2) Occupancy by purchaser. A certificate shall be issued authorizing the pursuit of local remedies to remove or evict a tenant of the vendor, for occupancy by a purchaser who has acquired his rights in the housing accommodations on or after the effective date of regulation (or on or after October 20, 1942 where the effective date of regulation is prior to that date, * * *), only as provided in this paragraph (b) (2) * * * »
Lockerty v. Phillips, 319 U.S. 182, 187-189, 63 S.Ct. 1019, 87 L.Ed. 1339; Yakus v. United States, 321 U.S. 414, 429, 64 S.Ct. 660, 88 L.Ed. 834.
Case v. Bowles, 327 U.S. 92, 98, 66 S.Ct. 438; Yakus v. United States, 321 U.S. 414, 431, 64 S.Ct. 660, 88 L.Ed. 834.
See United States v. Macintosh, 283 U.S. 605, 622, 51 S.Ct. 570, 574, 75 L.Ed. 1302, where the court said: “From its very nature, the war power, when necessity calls for its exercise, tolerates no qualifications or limitations, unless found in the Constitution or in applicable principles of international law.- In the words of John Quincy Adams, — ‘This power is tremendous; it is strictly constitutional; but it breaks down every barrier so anxiously erected for the protection of liberty, property and of life.’ To the end that war may not result in defeat, freedom of speech may, by act of Congress, be curtailed or denied so that the morale of the people and the spirit of the army may not be broken by seditious utterances; freedom of the press curtailed to preserve our military plans and movements from the knowledge of the enemy; deserters and spies put to death without indictment or trial by jury; ships and supplies requisitioned; property of alien enemies, theretofore under the protection of the Constitution, seized without process and converted to the public use without compensation and without due process of law in the ordinary sense of that term; prices of food and other necessities of life fixed or regulated; railways taken over and operated by the government; and other drastic powers, wholly inadmissible in time of peace, exercised to meet the emergencies of war.”
Henderson v. Kimmel, D.C.Kan., 47 F.Supp. 635, 641; United States v. L. Cohen Grocery Co., 255 U.S. 81, 88, 41 S.Ct. 298, 65 L.Ed. 516, 14 A.L.R. 1045.
Nebbia v. People of State of New York, 291 U.S. 502, 525, 54 S.Ct. 505, 78 L.Ed. 940, 89 A.L.R. 1469; North American Co. v. Securities and Exchange Commission, 2 Cir., 133 F.2d 148, 154.
Virginian R. v. System Federation No. 40, 300 U.S. 515, 558, 57 S.Ct. 592, 81 L.Ed. 789.
Cf. People v. La Fetra, 230 N.Y. 429, 130 N.E. 601, 16 A.L.R. 152; Guttag v. Shatzkin, 230 N.Y. 647, 130 N.E. 929.
See Howe v. Frith, 43 Colo. 75, 95 P. 603, 605, 17 L.R.A.,N.S., 672, 127 Am.St.Rep. 79, 15 Ann.Cas. 1069; Cf. Page v. Yool, 28 Colo. 464, 65 P. 636.
Yakus v. United States, 321 U.S. 414, 439, 440, 64 S.Ct. 660, 88 L.Ed. 834; Miller v. Schoene, 276 U.S. 272, 279, 280.
See Henderson v. Kimmel, D.C.Kan., 47 F.Supp. 635, 642.
Henderson v. Kimmel, D.C.Kan., 47 F.Supp. 635, 643.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_appbus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
SINCLAIR REFINING CO. v. JENKINS PETROLEUM PROCESS CO.
No. 3318.
Circuit Court of Appeals, First Circuit.
Sept. 27, 1938.
Nathan L. Miller, of New York City (Frank E. Barrows, of New York City, and Robert Hale, of Portland, Me., on the brief), for appellant.
Howard A. Hartman and David Fox, both of Milwaukee, Wis. (Henry Herrick Bond, of Boston, Mass., Philip G. Clifford and Richard S. Chapman, both of Portland, Me., John Howley, of New York City, Frederick Schafer and Russell C. Jewell, both of Washington, D. C., and John JT. McKeague, of Chicago, 111., on the brief), for appellee.
Before WILSON and MORTON, Circuit Judges, and McLELLAN, District Judge.
Writ of certiorari denied 59 S.Ct. 362, 83 L.Ed. —.
WILSON, Circuit Judge.
This is an appeal from the District Court of Maine in an action at law to recover for an alleged breach of a contract under date of. October 2, 1916, under which the defendant agreed to cause its employees to execute applications for patents for any improvements which it or its engineers and experts might develop in a certain apparatus or process claimed to have been invented by. the plaintiff for cracking crude petroleum oils for the recovery of the lighter oils, including.gasoline, and to assign said applications, together with the improvements they were intended to protect, to the plaintiff.
'A suit in equity was originally brought in January,.1921, to compel a specific performance of the contract. Specific performance was denied by the District Court for lack of sufficient evidence to warrant such a decree and the bill was dismissed, On appeal to this court the decree of the District Court was in part affirmed, but the appeal was dismissed without prejudice and the case was remanded to the District Court with directions to transfer it to the law side, and with permission to the plaintiff to amend its bill of complaint within thirty days by filing a declaration at law for a breach of contract.
The history of the litigation over this contract, prior to the judgment at law from which this appeal was taken, will be found in D.C., 273 F. 527; D.C., 32 F.2d 247; 1 Cir., 32 F.2d 252; D.C., 38 F2d 820; D.C., 56 F.2d 272; 1 Cir., 62 F.2d 663; 289 U.S. 689, 53 S.Ct. 736, 77 L.Ed. 1449, 88 A.L.R. 496; D.C., 6 F.Supp. 67.
Following the mandate in the equity suit, a declaration at law was filed, and a motion by the defendant to strike out and dismiss on the ground that the proposed declaration at law set forth a different cause of action from that described in the complaint in equity. The motion of the defendant was denied and an exception taken.
On May 15, 1930, a third count as an amendment to the declaration at law was proposed and objected to and exceptions taken to the allowance.
^,,,.. Defendant then filed a plea of general issue with _ a brief statement of defense, on which issue was joined, and the case was continued from term to term until ferm> D)36. On Maich 29, 1937 the case went to trial before a jury. T t J C7, JCnCe onApr!1 23’ \937’ *e deJíenda“t. ®led a “otxon for a directed verdict, which was denied and exceptions taken. Whereupon the jury rendered a verdict for the plaintiff for $2,000,-qqq
A motion for a new trial by the defendant was overruled. From a judgment on the verdict the present appeal was taken to this court. The defendant filed twenty-five assignments of error.
The case was carefully tried during a trial of five weeks, but with astute and experienced counsel on both sides, by whom every point involving a question of law was strenuously contested, it would be unusual if some error did not appear, either in the admission or exclusion of evidence, or in instructions to the jury, either requested or refused. ’
An attempt to analyze the mass of evidence pro and con in the case would of necessity be futile within reasonable limits 0f an opinion,
_.,.. * a ^cessary to consider assign“s of error numbered 4, 5, 8, 9, 10 and 12.
We find it unnecessary to discuss assignments 1, 2 and 3 which raise some doubtful questions of pleading under the state practice. We shall first consider assignments of error relating to the admission and exclusion of evidence, viz., 5, 8, 9, 10 and 12.
The District Judge excluded evidence of the Prl0r art bearing on the construction and scope of the Jenkins and Isom patents, and Qn the question of whether was an improvement in Jenkins, which was assigned as error under assignment No. 5; on the question of damages he excluded evidence bearing on the validity of the Isom patent, and its anticipation by the patent issued to the Russians, Schuchow and Gavrilow, in 1891, and received in the United States Patent Office on March 3, 1897, which was assigned as error under assignments 8 and 9; he also excluded the facts relating to an interference between the Isom patent and an application of one Dubbs, which was filed before the application of Isom and assigned as error under assignment No. 10. the testimony of R w_ Igom in the action o£ the sinclair Refini Company v. Globe Oil & Refining Company; D.C., 20 F.Supp. 681, was admitted, which related to the amount of Hne extracted during a given period ‘by the Isom stills, which was assigned as error under assignment No. 12.
,, We think the evidence relating to the SC0Pe and validity of the Isom patent should have been received, notwithstanding the stills constructed under the Isom pa^en^ }latl been in use by the defendant £or many years without objection or claim 0| infringement. Isom obtained the paterd; Qn jjjs still by claiming that vertical tubes were new. The Russian patent was not called to the attention of the Patent Office, when the application for the apparatas patent of Isom was pending, but when his divisional process patent was under consideration the Russian patent was
cited, and the process patent was refused on- the ground of anticipation by the Russian patent.
The jury was instructed that prima facie the Isom patent was a valid patent, and the jury must have weighed the evidence in view of this instruction. In cross-examination the plaintiff’s expert, Darnell, testified as follows: “Q. Then wouldn’t you think as an expert qualifying to pass judgment on the value of a patent that you would need to take into account whether or not the particular pat-tent- you1 were evaluating was one which would enable its owner to exclude other people from practicing the same thing? A. Certainly that would he a factor.” “ Q. But you didn’t do it.? A. No, I assumed this was a valid patent.”
The excluded evidence of the Russian patent of Schuchow and Gavrilow and the other prior art patents offered and. ex-eluded would have shown, if admitted, that Isom’s vertical tubes on which his patent was based and forced mechanical circulation were anticipated by more than twenty years, and- were in the public domain, Jenkins was free to use them as well as tkc defendant.
■ "This appeared when Isom applied for a. divisional process patent for oil cracking and. the Russian patent was cited against it. A process patent was denied, The Court of Appeals of the District of Columbia in the Dubbs interference case, Isom v. Dubbs, 58 App.D.C. 25, 24 F.2d 467, stated in its opinion that the Isom apparatus patent had been inadvertently issued, no doubt in view of the Russian patent, which was not cited when Isom’s application for an apparatus patent was considered.
This evidence, if it had been admitted, would have shown that Isom’s parallel vertical tubes and the mechanical forced circulation of oil through tubes and tank had all been anticipated. The two features in the Isom patent which were claimed by the plaintiff to be an improvement in Jenkins, viz., vertical tubes and a balanced stuffing bo^;, were both old and left nothing of value in the Isom patent to be assigned to the plaintiff under the letter-contract in suit hereinafter, referred to. Therefore, even if the improvements claimed by the plaintiff had been assigned in accordance with the letter-contract, they could have added nothing of value to- the Jenkins patent, and the. failure to assign them deprived the plaintiff of nothing of value. The effect of' the contract of October, 1916, was merely to assign any patent obtained by the defendant on improvements in the Jenkins process, if within the contract, for whatever it might be worth. Hence the actual damage suffered by the plaintiff through the failure to assign to it the Isom alleged improvements in accordance with the letter-contract of October, 1916, could not have been more ]han nominal, even assuming the so-called improvements claimed by the plaintiff were the result of the Isom engineers and experts familiarizing themselves with the Jenkins still under the contract of October> 1916.
The testimony of E. W. Isom in the case of Sinclair Refining Co. v. Globe Oil & Refining Co., 20 F.Supp 681, should have been excluded. The case against the Globe Oil & Refining Co. involved a claim of infringement of certain patents issued to one Bell and assigned to the defendant, by which continuous operation of the Sinclair still was greatly increased and consequently the production of gasoline. The District Court ruled in the law action that special profitable uses of the Isom patent could not be considered on the question of damages, but in the Globe Oil & Refining Co. Case evidence given by E. W. Isom as to the éfficiency of the Isom patent, with the addition of the Bell inventions, was admitted as bearing on its commercial use.
The defendant did not deny the usefulness of its invention, but utility and invention are not alone sufficient to warrant the issuance of a patent. There must also be novelty. Paramount Publix Corp. v. American Tri-Ergon Corp., 294 U.S. 464, 474, 55 S.Ct. 449, 453, 79 L.Ed. 997; Walker on Patents (6th Ed.), Sec. 91
The District Judge expressed doubt as to the admissibility of this evidence at the time it was offered. The plaintiff, however, was permitted to put in the testimony of E. W. Isom as to the output of the lsom stills in 1927. Judge Nields stated i*1 his opinion in that case:
“His (Bell’s) inventions are effective in surmounting the carbon carrier when used in practice, either (with) the batch process or the continuous process. The plaintiff (the Sinclair Company) turned at once to continuous cracking with the Bell patents. In the latter part of 1920 a battery of stills was equipped with the Bell inventions. For the first time in history continuous cracking to produce gasoline was practiced commercially. All subsequent commercial cracking has been continuous.”
Judge Nields found that these Bell inventions were finally embodied in all of the defendant’s commercial cracking stills, and that the large increased output of the defendant’s stills was due, not to the Isom patent alone, but to the added improvements by Bell.
The figures of the production of these stills in 1927 were used by the plaintiff’s expert, Darnell, in his estimates of the damages suffered by the plaintiff due to the defendant’s alleged breach of the letter-contract of October, 19.16. Such evidence of profitable use the District Judge and this court had ruled were inadmissible on the question of damages. Jenkins Petroleum Process Co. v. Sinclair Refining Co., supra, 62 F.2d page 665. The District Court, in accordance with the ruling of this court in Sinclair Refining Co. v. Sinclair Refining Co., supra, 62 F.2d page 665, instructed the jury: You are not authorized to consider any damages based on profits Sinclair might or could have made. These are recoverable only in infringement suits and not in this form of action.” No exception was taken by the plaintiff to this instruction. The jury was bound by it and its soundness under all circumstances is not before this court.
It further appeared that E. W. Isom was available as a witness. If it be assumed, without so deciding, that where a corporate officer is available as a witness, his testimony in a different case may ever be received as in the nature of a corporate admission, this is not such a case.
Unless the plaintiff has some effective reply, which we do not find in the record, to the defendant’s contention that the use of vertical tubes and forced mechanical circulation had long been anticipated by the Schuchow and Gavrilow patent and was in the public domain, the Isom patent must be held invalid. It also appeared in evidence that E. W. Isom, prior to October, 1916, was familiar with the several patents issued to Smith, Cross, Clark, Edwards, Waxier and Sapp, which related to the cracking of crude oils and the distillation of gasoline, and showed a tank and tubes with forced mechanical circulation, in which tubes the crude oil was subjected to cracking heat, though the tubes in the last named patents wefe not verti-' cal. The exception to the exclusion of this evidence of the prior art must be-sustained.
While some evidence of the prior art was admitted for the purpose of showing the state of the art in 1916, if all the evidence of the prior art offered by the defendant had been admitted showing anticipation of the vertical tubes and balanced stuffing box of the Isom patent, and to show the scope of the Isom patent, the prima facie evidence of validity of the Isom patent would have been destroyed and the District Court must then have instructed the jury tfmt _ the Isom patent' issued in 1918 was invalid,
The only reply the plaintiff makes to the defendant’s claim of admissibility of this evidence is that the defendant is estopped to set up invalidity of his patent. But this is not a case of assignor and assignee, or licensor and licensee, where the assignor or licensor is presumed to represent the validity of that which he assigns or licenses.
There is obviously no estoppel by deed, nor are elements present to constitute an estoppel in pais, or equitable estoppel, >p0 constitute such an estoppel all the essential elements must be present, among which is ignorance 0f the true facts on part 0f tjje person claiming the estoppej_ The generaj[ ruje js that one may not t0 the prejudice of the other party deny any position taken in a prior judicial proceeding between the same parties or their privies involving the same subject matter, if successfully maintained. Gordon v. Hutchins, 118 Me. 6, 105 A. 356; Pratt v. Paris Gas Light & Coke Co., 168 U.S. 255, 18 S.Ct. 62, 42 L.Ed. 458.
But m the_ event of a dismissal of the action in which the position was taken without any binding judgment, as in case °f a non-suit or dismissal without prejudice, the fact that such a position was taken in a prior action may be admissible as evidence between the parties, but is not conclusive. Waterman v. Merrow, 94 Me. 237, 47 A. 157; Pratt v. Paris Gas Light & Coke Co., supra; Carleton v. Bird, 94 Me. 182, 47 A. 154; Jackson v. Allen, 120 Mass. 64.
There is no claim that the plaintiff was ignorant of the prior art, and the legal presumption is that all patentees and all patent owners are presumed to be,familiar with the prior art. Adams v. Gabon Iron Works & Mfg. Co., 6 Cir., 42 F.2d 395, 397; John T. Riddell, Inc., v. P. Goldsmith Sons Co., 6 Cir., 92 F.2d 353, 356. There was no evidence that the plaintiff was injured by an unexpected claim' of Isom in the law case that his patent, in view of the prior art, was invalid.
The issue raised in the prior equity case was not one of valuation of the Isom patent and of damages, but whether the plaintiff was entitled to a specific performance of the contract of October 2, 1916. The District Court and this court held the evidence did not warrant such a decree. The issues not being the same, ence the issue of the validity of the Isom patent was not raised by the equity pleadings nor determined in that case, and the equity case being dismissed without prejudice, there was no estoppel in pais, or equitable estoppel, against the defendant raising the question of validity of the Isom patent on the question of damages in a law action for breach of the contract, Therefore, the evidence of the prior art bearing on the scope and validity of the Isom patent, and the facts and decision in the Dubbs interference case bearing on the validity of the two claims of the Isom patent, should have been received on the question of damages.
But notwithstanding these errors in the admission and.exclusion of evidence which would -alone require the granting of a new trial, the exception to the denial of the motion of the defendant for a directed verdict after the evidence was all in, which was assigned as error under assignment of error No. 4, goes deeper into the real issue of the case, namely, the proper construction of the contract entered into between these parties under date of October- 2, 1916, and whether there was any evidence of information obtained by or imparted to the defendant, or to any of its engineers and experts under the contract, which enabled ‘E. W. Isom to conceive the claimed improvements in the Jenkins patent.
In stating the facts bearing upon the question whether a verdict for the defendant should have been directed, we recognize a jury’s right to reject testimony as not entitled to credit, but it must also be understood that disbelief of testimony does not constitute affirmative evidence of the contrary.
The material part of the letter-contract of October 2, 1916, reads as follows:
“Pursuant to our, conversations and conferences relative to the Jenkins process of treating petroleum, it is understood that we (the plaintiff) are to loan you our experimental still to be shipped to Coffey-ville, Kansas, so that your experts and engineers may have apparatus immediately available upon which to carry out experiments uPon the Jenkins improved process uPon 70ur Petroleum products,
“It is further understood that Mr. Ulysses S. Jenkins, of Chicago will go to-Coffeyville, Kansas, to install the still and will remain in an advisory capacity throughout the entire course of experimental work carried on by your experts,, Mr. Jenkins’ salary being $150.00 a month,, and all expenses, including railroad ex-penses incurred by him in making trips to Chicago, rendered necessary by said ex-perimental work, this to be paid by you.
«it ;s further definitely understood and agreed between us that any improvements, whether of a mechanical nature, or in the-process, which may be -developed as the result of the work of your engineers and experts in familiarizing themselves with the jenkins apparatus and process, shall accrue to the Jenkins Petroleum Process Company, and that you shall, so far as y0U are af,je to do, cause your employees carrying on such experimental work to execute applications for patents for the United States and any other countries to protect any such improvements, blit at the expense of Jenkins Petroleum Process Company, and to assign said applications,, together with the improvements they are intended to protect, to the Jenkins Petroleum Process Company. This provision is of course rendered necessary by the fact that in development of a process of this character, and particularly in its application to particular oils, many short cuts and improvements necessarily are developed by the experts entrusted with the carrying out of the process, which belong by right to their employer, and under the-circumstances here involved, of course, to-the Jenkins Petroleum Process Company,, inasmuch as they are_ loaning you not only their experimental still, but also the services of Mr. Jenkins, the inventor himself,
* * * - * * *
“As soon as your engineers and experts have carried on sufficient work with this-still to thoroughly familiarize themselves. with the process and discover the best conditions under which to apply the proc~ ess to your petroleum products, the still will be returned in good condition to us.” (Italics supplied.)
The particular improvements in Jenleins claimed by the plaintiff’s witnesses as a result of the defendant’s engineers and experts familiarizing themselves with the Jenkins still under the contract of October, 1916, were the use of vertical tubes and a balanced stuffing box.
There was a difference of view between the parties as to the proper construction of the contract, which was for the court to determine.
In the equity case the court ruled that a broad construction was to be given the contract because of a claim by the plaintiff of confidential disclosures. D.C., 32 F.2d 247, 250, 251. The claim of confidential disclosures being abandoned in the law action, the broad construction contended for by the plaintiff m the equity case was not pressed m the law action.
The construction put upon the contract in the law action by the District Judge in his charge to the jury was that improvements resulting from disclosures prior to the date the contract was executed, which was sometime between October 2, 1916, and October 9, 1916, were not within the contract and also that any disclosures in connection with the negotiations for the sale of the stock of the Jenkins Company after October 2-9, 1916, were not covered by it; but he also instructed the jury “that any information gained by the defendant’s engineers and experts while so familiarizing themselves under the opportunity given them under the contract at Coffeyville, was proper to be shown in support of the plaintiff’s contention.” His instruction on this point «.,, was as follows.
. At the outset the question arises as to construction of contract m respect of the source of information chargeable to the defendant and the time m ^ w uch it must have been received. Strictly construed the contract would be hrmted to information gained by experimentation. If that a one is covered by the contract, there could scarcely be any recovery because no experiments were ever made or witnessed by the defendant’s people after they received the still. However, I prefer to give more effect to the words ‘familiarizing themselves with the Jenkins apparatus and process’. And I rule that any information gained by defendant’s engineers and experts while so familiarizing themselves under the opportunity given them under the contract and as a result thereof is proper to be shown in support of the plaintiff’s contention. The defend-ant claims that disclosures made by the plaintiff to the defendant before the date °f the contract, that is, before October 2> 1916> cannot he considered as having been made under the contract; and that any disclosures made by plaintiff to defendant in the course of the negotiations baving ¿o do with the license or sale agreement were wholly unrelated to the contract and that, therefore, no improvements made by defendant as the result of its familiarity with the plaintiff’s process gained from such disclosures are covered by the contract.
eqf the Qnl information given the de_ fendant by the Iaint¡ff and the Qnl in. formation obtained by the defendant was that mentionedj that is before the contract was entered into and while negotiations for a license or sale and solely as a part 0f such negotiations, in the way information was freely given to others by the plaintiff in connection with proposed license agreements about that time, then it would be apparent that defendant gained no familiarity with the Jenkins apparatus and process through any action of the plaintiff under the contract, and it would have no ground for recovery in this suit.”
.,,,,,. an?“ “ t?.w^t m' te“ded *e ^ords fam^arizing themselves with the Jenkins apparatus and pro«jess*, and the District Court instructed íhe }ur7 ^,lfconstrued strictly as be-limited to information obtained by ex-Penmentation, the plaintiff could not recover, as no experiments were made at Coffeyville under the contract; but added: «j prefer t0 gjve more effect to the words ‘familiarizing themselves with the Jenkins apparatus and process.’ And I rule that any jnformati0n gained by defendant’s engjneers and experts while so familiarizing themselves under the opportunity given them under the contract and ag a result thereof is to be shown in support of the plaintiff’s contention.”
The contract is clear, at least, as to the purpose and the object of the shipment of the still to Coffeyville, and should'be interpreted in the light of the circumstances under which it was entered into.
•Jenkins and his associates, A. 'G. Maguire, W. H. Black and T. S. Black, sometime in the summer of 1916, advanced a small amount of money to construct an experimental still to test out an idea of Jenkins for cracking crude petroleum oils and extracting therefrom gasoline, which, with the advent of automobiles and the demand caused by the great war, was much sought for by the refining and producing oil companies, especially in the period from 1912 to 1917. The chief difficulty encountered before had been' the deposit of carbon in the cracking.stills ■ through applying the heat necessary to break down the atoms of hydrocarbon contained in the crude oil. Jenkins’ theory was that rapid circulation £ i. z a. «. t., f j •of oil, subjected to cracking heat, would ’ j r -.. ’ prevent.the deposit of carbon in any considerable quantity, and his experimental still consisted of a tank containing a sup-. £.. j. j j* ply of oil and descending and ascending. L..it_ 11 i • i- j A u pipes connected with parallel inclined tubes x.». a.. 4 ■.... _ 4 • T subjected to great heat, with a mechanical-. J£ j r 1 4.4 j ly forced circulation through tank and /.. £ *.. tubes by means of a screw propeller. J r r
E. W. Isom, a son of W. H. Isom, president of the Cudahy Refining Company, was a trained engineer, having graduated from a scientific mining school, and in 1912 became assistant to his father and at once took up the problem of the study of cracking crude oil for the purpose of increasing the production of gasoline in addition do other duties.
His studies of the subject and investígation extended from 19Í2 to 1917. During this time he investigated every patent issued which had any relation to the subject, read all the literature published in connection with it, including the Rittman Publication, so called, issued by the Bureau of Mines of the Department of the Interior, giving the state.of the prior art and from which Jenkins evidently received a suggestion for his claimed invention. In midsummer of 1916, one of the Blacks called W. H. Isom’s attention to the Jenkins process,-and Maguire, one of the organizers and promoters of the Jenkins Company, on July 7, 1916, wrote W. H. Isom that “W. C. Black will see you and explain the principles and show you the prints of our cracking process.!’ The prints which he referred to in this letter were the patent prints. i W. C. Black testilled that, during, the summer of 1916, '“I.; very frankly explained' to Mr. Isom everything T learned about the ’ operation from my visits to the little still. * * * Mr. Isom was anxious to have his son, Edward, come up and make his own investigation, make his own determinations, He wanted a real oil man up there that understood oil technology and oil refining, So after a few runs we felt that we had gotten far enough to where it would be interesting and we announced to him that our people were perfectly willing to let Edward (Isom) come up, go out and see for himself, make whatever determinations he cared to. That was sometime around the middle of August.”
,*•.,, ■....,.. T 1 mi£. Magmre also testified that m July, 1916,'f exP M^e 0 • • som m,e m e theory of the Jenkins patent and process. -A 4 „, ^ v. W. H. Isom called his son s attention to y. •.,... Al_ -. e ^,.n.^a en, an, su®es,.e,,a e as always did when a new idea was presented. E. W. Isom was,,.,. 5. then investigating other processes and, m...... -y ^ ’ - addition, had charge of the erection of......, ® ^.. -, commercial stills for the cracking of crude.... oils: but, as the record shows, was even.4 ’,.,...,. then making plans in his own mind from his investigation of the prior 'art for a process and still which was later perfected with the help of Professor John E. Bell, who also invented a so-called lobe pump for forcing circulation. Patents for Bell's improvements were issued and assigned to the defendant.
• Maguire ¡n mó assured w H_ ^.*. ^ <..,...4 ^ T that they had experimented w^ith the Jen— kins still and found that it did all they claimed for it, and before it had even. been demonstrated to the Isoms he had tried to interest W. H. Isom in the purchase of it, or to take licenses under the patent. W. H. Isom replied that his son would first want a demonstration of the Jenkins still and its ability, to produce gasoline from the products of the Cudahy Company, which Jenkins then undertook to do at his garage in Chicago. E. W. Isom came to Chicago in the latter part of August, 1916, to witness a demonstration of the Jenkins still and its operation, but apparently for lack of a proper stuffing " box, or some other defect, it failed to work. E. W.'Isom as an engineer saw at once this lack óf a proper stuffing, box, while watching the attempted demonstration,. and suggested that an-expert Stillman might'remedy.the'trouble,'or could assist Jenkins in. the demonstration of his still, and agreed to.send an expert Stillman from the Cudahy plant at Coffeyville to Chicago to assist Jenkins in demonstrating his experimental still, which he did.
In making another attempt to operate the still, it caught fire from some defect in the apparatus and burned up the garage in which it was kept.
.. Prior to this time sketches, blueprints, and a copy of the specifications and cuts contained m his applications for his patent of the Jenlans still had been furnished the Isoms, showing in detail the construction of the Jenkins still and the theory on which it was supposed to work. lhe Isoms, however, wanted a practical demonstration of the Jenkins still and its ability to produce 100 percent gasoline from crude oil and to determine whether it would work with the oil produced by the defendant company. Black and Jenkins were in doubt as to its condition after going through the fire, but Maguire evidently did not think that the fire had damaged it beyond repair, and W. H. Isom told him that their expert welder at their plant at Coffeyville could probably weld any leak that had developed by reason of the fire. W. H. Isom suggested that the still be shipped to Coffeyville, where they had every convenience for making a test and their welder could repair any damage rancid hv thp fire
Maguire, however, after conferring with the Blacks and Jenkins, decided that some'agreement should first be drawn up that would protect them in case any improvements in the apparatus or process were made by the engineers or experts of the Cudahy Company while the experiments were going on, and would assure the Jenkins Company of the benefit of any such improvements. In consequence, it was agreed among the promoters that a contract should be drawn up setting forth the purpose for which the still was shipped to Coffeyville, and that any improvements due to the defendant’s engineers and experts familiarizing themselves with the Jenkins still should belong to the plaintiff, and that the engineers and experts conducting the experiments should apply for patents and assign such applications and improvements to the plaintiff company. Maguire, without further consultation with W. H. ‘Isom, had a lawyer draft the letter-contract in the case dated Octoher -2, 1916, which, sometime after its date, was signed and approved by W. H. Isom, president of the Cudahy Company.
The still was shipped on October 9, 1916, and was set up on foundations which kad been prepared for it. On a test with cold oil> but n°t under pressure, it was found to leak, and three or four attempts were made to weld it by an expert welder of the Cudahy Company; but he failed to tight, and no tests thereafter, with QÜ or even water> were or could be made under pressure_ It was fmally aban. jonecj jn November
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:
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sc_authoritydecision
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D
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
COMMUNIST PARTY, U. S. A., et al. v. CATHERWOOD, INDUSTRIAL COMMISSIONER.
No. 495.
Argued May 4, 1961.
Decided June 12, 1961.
John J. Abt argued the cause and filed a brief for petitioners.
Julius L. Sackman argued the cause for respondent. With him on the brief were Louis J. Lefkowitz, Attorney-General of New York, Paxton Blair, Solicitor General, and Samuel Stern, Assistant Attorney General.
Mr. Justice Harlan
delivered the opinion of the Court.
We here review the upholding by the New York Court of Appeals of the action of the New York State Industrial Commissioner terminating petitioners’ registration and liability to state taxation as employers under the New York State Unemployment Insurance Law. N. Y. Labor Law, §§ 511-512, 517-518, 570, 577, 581. This determination was effected under what was conceived to be the compulsion of a federal statute, the Communist Control Act of 1954, 68 Stat. 775, 50 U. S. C. §§ 841-844, which provides, in pertinent part:
“Section 2. The Congress hereby finds and declares that the Communist Party of the United States, although purportedly a political party, is in fact an instrumentality of a conspiracy to overthrow the Government of the United States .... Therefore the Communist Party should be outlawed.
“Section 3. The Communist Party of the United States, or any successors of such party regardless of the assumed name, whose object or purpose is to overthrow the Government of the United States, or the government of any State, Territory, District, or possession thereof, or the government of any political subdivision therein by force and violence, are not entitled to any of the rights, privileges, and immunities attendant upon legal bodies created under the jurisdiction of the laws of the United States or any political subdivision thereof; and whatever rights, privileges, and immunities which have heretofore been granted to said party or any subsidiary organization by reason of the laws of the United States or any political subdivision thereof, are hereby terminated: Provided, however, That nothing in this section shall be construed as amending the Internal Security Act of 1950, as amended.” (Emphasis supplied.)
New York has an “experience rating” scheme whereby employers with consistent records of high employment levels are taxed at a lower rate than would otherwise obtain. Under the Federal Unemployment Tax Act, 26 U. S. C. §§ 3301-3308, an employer is entitled to a federal tax credit for the amount paid in state unemployment taxes. If the state taxing structure allows for a reduction in tax rate to employers with good employment records under a federally certified “experience rating” system, the federal tax is nevertheless reduced by the highest rate imposed by the State, so that the employer retains the full benefit of his experience rating reduction. Thus, before the termination of their New York registration the combined federal and state tax rate of the petitioner, Communist Party, U. S. A., was 1%, and that of the petitioner, Communist Party of New York State, was, according to its representations, 1.1%. The effect of the registration termination as to both was to increase the rate to 3%, the rate provided in the federal statute.
We granted certiorari, 364 U. S. 918, to consider the petitioners’ claims that New York has mistakenly construed the Communist Control Act of 1954 to require termination of their status as employers under the New York statute, and, contrariwise,, that both § 3 of the Communist Control Act, so construed, and New York’s termination of registration infringed the Constitution of the United States.
We must reject at the outset respondent’s contention that the Court of Appeals’ decision rested on a determination, based on judicial notice which was not displaced by any proof, that petitioners were not employers within the meaning of § 512 of the New York Labor Law, but a criminal conspiracy. It is entirely clear that the Industrial Commissioner and the Unemployment Insurance Referee, the Unemployment Insurance Appeal Board, and the Court of Appeals all based their determination squarely on what they conceived to be the compulsion of the Communist Control Act. The Court of Appeals’ amended remittitur, which states that the questions of the construction and constitutionality of the Communist Control Act “were presented and necessarily passed upon,” puts the matter beyond doubt.
Following the familiar rule that decision of Constitutional questions should be avoided wherever fairly possible, we turn at once to the federal statute which this Court has not heretofore had occasion to construe. Apart from unrevealing random remarks during the course of debate in the two Houses, there is no legislative history which in any way serves to give content to the vague terminology of § 3 of the Communist Control Act. The statute contains no definition, and neither committee reports nor authoritative spokesmen attempt to give any definition, of the clause “rights, privileges, and immunities attendant upon legal bodies created under the jurisdiction of the United States or any political subdivision thereof.” Respondent would have us construe this language to mean that wherever a situation advantageous to the petitioners occurs by reference to the statutory or common law of a State or any other government in the United States, this is to be considered a “right,” “privilege,” or “immunity,” and must be deemed to be withheld by the Act. On this basis New York has reasoned that liability to taxation as an employer, though not a privilege in the ordinary sense of the term, is nonetheless a recognition of the common-law contractual capacity to employ, and as such is advantageous to petitioners; and further, that an employer whose employees are unable to benefit from state and federal unemployment insurance programs will be disadvantaged in finding and keeping employees. Therefore it was thought that the Communist Control Act required termination of the registration of petitioners as employers.
This interpretation, raising as it does novel constitutional questions, the answers to which are not necessarily controlled by decisions of this Court in connection with other legislation dealing with the Communist Party, must, we think, be rejected. Not only does the language of the statute fall far short of compelling such an interpretation, but there are good indications that the particular result of barring petitioners as employers under state and federal unemployment insurance systems was not within the contemplation of this Act. The Internal Revenue Service has continued to collect taxes from petitioners under the Federal Unemployment Tax Act, and Congress in 1956 has dealt in terms with a like matter, excluding from federal old-age, survivors and disability benefits, 42 U. S. C., c. 7, subchapter II, employment with any organization required to register by the Subversive Activities Control Board and removing from the coverage of the Federal Insurance Contributions Act, 26 U. S. C., c. 21, any such organization, thus tying the exclusion to the administrative fact findings and determinations required by the Internal Security Act of 1950, 64 Stat. 987; see Communist Party v. Subversive Activities Control Board, ante, p. 1.
In face of these considerations we should hesitate long before attributing to Congress a purpose to effectuate the similar exclusion in this instance by legislative fiat. Our reluctance to accept a state interpretation which would have that effect is fortified both by the difficult constitutional questions that would result and by the undesirability of having conflicting state and federal administrative interpretations of a federal statute establishing this “coordinated and dual system” (Buckstaff Co. v. McKinley, 308 U. S. 358, 364) of employment insurance. We hold that the Communist Control Act of 1954 does not require exclusion of the petitioners from New York’s unemployment compensation system. Since the New York Court of Appeals’ decision unmistakably rested on the contrary premise, its judgment must be reversed and the case remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Mr. Justice Black concurs in the result.
The basic federal rate was increased to 3.1% by Public Law 86-778, § 523 (c), 74 Stat. 924, 982, effective 1961. 26 U. S. C. § 3301.
Petitioners argue that the Act on its face and as applied violates the Due Process Clause of the Fifth Amendment and Art. I, § 9, cl. 3 of the Federal Constitution, which provides that “no Bill of Attainder or ex post facto Law shall be passed.” Petitioners also contingently assert a Fourteenth Amendment claim, see note 6, infra.
The Referee, in reviewing the administrative action of the Commissioner, stated that “the Commissioner’s representatives . . . urge that Congress has effectively outlawed the Communist Party and thus, by force of law, the Referee is bound to find that . . . there could not have been any valid employment . . . .” (R. 5.) This contention the Referee accepted, holding that “Congress effectively terminated the right of the Parties to enter into contracts of employment . . . .” (R. 7.)
The Board affirmed the Referee’s conclusions of law. (R. 2.)
See 8 N. Y. 2d 77, at 83, 168 N. E. 2d 242, at 245, for the opinion of Chief Judge Desmond, with whom Judge Dye concurred, and 8 N. Y. 2d, at 90-91, 168 N. E. 2d, at 248-249, for the opinion of Judge Van Voorhis, with whom Judge Burke concurred. Two judges of the court dissented, and one judge did not participate.
Petitioners also argue that if the administrative action rested upon some state procedural ground, as respondent contends, then that action violated the Due Process Clause of the Fourteenth Amendment. We do not reach this contention.
The Solicitor General, in a letter to the Clerk of this Court responding to a certification by the Court to the Attorney General of the United States that the constitutionality of a federal statute had been drawn into question in this case, stated that “[t]here is no need to file a brief describing the practice of federal agencies in interpreting the statute [The Communist Control Act of 1954], for this information is already set forth in the opinion of Judge Fuld in the New York Court of Appeals.” The dissenting opinion of Judge Fuld states that “the federal authorities, admittedly aware of the Industrial Commissioner’s position, have taken one diametrically opposed and continue to recognize the Communist Party as an employer subject to the Federal act.”
42 U. S. C. § 410 (a) (17) and 26 U. S. C. § 3121 (b) (17), Act of August 1, 1956, § 121 (c) and (d), 70 Stat. 839. No similar exclusion, however, has been made from the coverage of the Federal Unemployment Tax Act, 26 U. S. C., c. 23, which imposes the federal tax against which the state taxes involved in this case are credited. See p. 391, 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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songer_st_v_st
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A
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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 rule in favor of the appellant on the issue of a conflict of laws ( which laws or rules apply ) other than federal v state or foreign v domestic (e.g., one state vs second state)?" 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".
HUGHES v. COMMISSIONER OF INTERNAL REVENUE.
No. 9033.
Circuit Court of Appeals, Ninth Circuit.
May 29, 1939.
Latham, Watkins & Bouchard, Dana Latham, and A. R. Kimbrough, all of Los Angeles, Cal., for petitioner.
James W. Morris, Asst. Atty. Gen., and Sewall Key, Newton K. Fox, and Clarence C. Dawson, Sp. Assts. to Atty. Gen., for respondent.
Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.
HANEY, Circuit Judge.
This proceeding involves the taxability and extent thereof, of a gift by way of trust.
The taxpayer was, at the time of the creation of the trusts herein mentioned, a resident of California, and was 43 years old. The various parties interested in the trusts, with their ages at the time of creation of the trusts were as follows:
party age
Mother 73
Father 71
Taxpayer 43
Wife 29
First Daughter 1
On June 22, 1933, the taxpayer, by a trust instrument executed at Los Angeles, California, did “transfer, deliver and convey” certain securities having a market value of $55,600 to a bank in Topeka, Kansas, in trust, and empowered the trustee “to hold and retain any of the property coming into its hands hereunder in the same form of investment as that in which it is received by it” and “to sell or exchange the whole or any part of such property upon such terms and conditions as in its discretion may seem best under the circumstances', and to invest and reinvest any of the trust funds hereunder in such securities as Trustee in its discretion may deem wise and prudent”.
The trust instrument provided that the trustee was to pay the entire net income to the grantor’s mother during her life and “such amounts of the principal * * * as Trustee in its sole discretion may deem necessary or advisable for the comfort and support” of said mother. If the father predeceased the mother, then upon the latter’s death, the trust was to terminate, and the principal of the trust estate was to be paid to the taxpayer. The taxpayer had an absolute right to the principal only if he survived both the mother and father. Upon the mother’s death, if both the taxpayer and father were living, one-half of the net income and “such amounts from principal of this trust fund * * * as it in its sole discretion may deem necessary and advisable” was to be paid to each of them. If the taxpayer pre-deceased the mother, and the mother pre-deceased the father, then one-half of the net income, upon the mother’s death, was to be paid to the wife, as it was in the case where the taxpayer survived the mother, but predeceased the father, in either of which events, upon the subsequent death of the father, the entire net income was to be paid to the wife. There were other provisions providing, in general, that the share the wife would receive, in any of the situations mentioned in the preceding sentence, was to be paid to the taxpayer’s children upon the death of the wife.
The trust instrument further provided that “This trust shall be irrevocable”, and it contained no provision for amendment of any of the trust provisions.
On June 29, 1933, taxpayer, by another trust instrument did “sell, transfer, and deliver” to a trust, company in Boston, Massachusetts, certain securities having a market value of $96,088.14, in trust. The trustee had powers which were, probably, broader than those mentioned in the first agreement. The provisions regarding the beneficiaries’ interests were the same as those in the first trust instrument. There was no provision in the second trust instrument for amendment of any of the trust provisions, and it was silent as to whether the trust was or was not revocable.
Based upon mortality tables, the .value of the combined life estate of the mother and father at the time of the conveyances in trust was $45,620.57, and the separate value of the life estate of the father included in that amount was in excess of $5,000. A second daughter was born to the taxpayer on November 25, 1934.
In his gift tax return for the year 1933, the taxpayer reported the value of the gifts as $45,620.57, which was the value of the life estates mentioned. Inasmuch as § 504 of the Revenue Act of 1932, 47 Stats. 169, 247, 26 U.S.C.A. § 553, provided that the first $5,000 of gifts should not be included in the “total amount of gifts”, and since § 505, 47 Stat. 247, 26 U.S.C.A. § 554, permitted a deduction of $50,000 as an exemption, the taxpayer reported no tax due. Respondent determined that the value of the gifts was $151,688.14, which constituted the market value of the securities transferred, and assessed a deficiency.
The taxpayer petitioned the Board of Tax Appeals to redetermine the deficiency. An agreed statement of facts was submitted to the Board. It states that the taxpayer “established a trust” with each of the above-mentioned trustees, and attached thereto copies of the trust instruments. It further stated: “Each trust is irrevocable”. It also stated that two affidavits were attached thereto “which may be taken as evidence”.
It appears from one of the affidavits, which was executed by the mother and father, that they had ample assets to support themselves, that taxpayer was never called on to contribute to their support, and that their income alone was more than sufficient for their own needs. It appeared that their net taxable income for the year 1933 was $11,809.38, and they had additional income from tax-exempt securities; that their total net income from all sources in the year 1934 was $38,866.58; and that “their average outlay for necessary expenses for their combined support and comfort the past several years has not exceeded the sum of $6,500.00 per annum”. The other affidavit was made by the taxpayer, and in it he stated that “he intended in the creation of these trusts to retain the corpus of the trusts; that it was not his intention to make a gift of the entire property, but it was his intention to make a gift of the income from the property, and the agreements were intended to be so worded and provided whereby only a gift of the income would be effected, with the further testamentary disposition of the principal upon his death”.
The Board, by memorandum opinion, upheld respondent’s view, other than an error in computation. Thereafter the taxpayer filed a motion with the Board to vacate its memorandum opinion and to either enter decision for him, or in the alternative, to take testimony as to the value of the interest, in the property transferred, which was retained by the taxpayer. The Board denied the motion, and entered a decision, redetermining the deficiency, in favor of respondent. The taxpayer petitioned us to review that decision.
Section 501(a) of the Revenue Act of 1932 imposes a tax “upon the transfer * * * of property by gift”. Section 501(b) provides that the “tax shall apply whether the transfer is in trust or otherwise, whether the gift is direct or indirect”. Section 501(c) is the provision in question here. So far as is material here, it provides: “The tax shall not apply to a transfer of property in trust where the power to revest in the donor title to such property is vested in the donor * * *26 U.S.C.A. § 550 and note.
Article I, Treasury Regulations 79, promulgated under the act in question provides that the “statute imposes no tax upon property, but subjects to tax transfers of property by gift”. Article 3, provides in part:
“The tax is not imposed upon the receipt of the property by the donee, nor is it necessarily determined by the measure of enrichment resulting to the donee from the transfer * * * On the contrary, the tax is a primary and personal liability of the donor, is an exercise upon his act of making the transfer, is measured by the value of the property passing from the donor * * *
“As to any property, or part thereof or interest therein, of which the donor has so parted with dominion and control as to leave in him no power to cause the beneficial title to be revested in himself, the gift is complete. But a transfer * * * though passing both legal and beneficial title, is still in essence merely formal so long as there remains in the donor a power to cause the revesting of the beneficial title in himself, and the gift, from the standpoint of substance, remains incomplete during the existence of the power * * * ”
As said in Burnet v. Guggenheim, 288 U.S. 280, 286, 53 S.Ct. 369, 371, 77 L.Ed. 748, and as the regulations disclose, the statute “is aimed at transfers of the title that have the quality of a gift, and a gift is not consummate until put beyond recall”.
Here it is obvious that the entire value of the property, less the specific deductions contained in the statute, must be included in the return, because the property was transferred, unless “the power to revest in the donor title to such property is vested in the donor”. The quoted phrase means that if the donor by the terms of his transfer has retained the power to require the title to be returned to him, or such right is vested in him by law, then the transfer is not one which is taxable.
It is contended here that by the second trust agreement, which did not contain the provision that the trust was irrevocable, the taxpayer retained the power to require the trustee to return title to the property. This contention is based on Cal.Civ.Code § 2280, which provides that “Unless expressly made irrevocable by the instrument creating the trust, every voluntary trust shall be revocable by the trustor by writing filed with the trustee”. Thus under the law of California where the trust instruments were made, the second trust was revocable. At common law and in Massachusetts, which was the seat of the trust, the trust was not revocable unless the power of revocation was contained in the declaration of trust instrument, excepting of course the case where the beneficiaries consented. Sands v. Old Colony Trust Co., 195 Mass. 575, 81 N.E. 300, 12 Ann.Cas. 837. Therefore, the question is determined by deciding whether the law of California, or whether the law of Massachusetts should be applied.
Putting aside the rule that local law is not controlling unless the federal statute makes it so because not relied on here, we think the Massachusetts law should be applied. 2 Beale, The Conflict of Laws, §§ 297.1, 297.2, pp. 1023-1025; Restate, of the Law, Conflict of Laws, §§ 297, 299, pp. 379, 381. Applying it, we hold that the second trust was irrevocable.
The taxpayer relies on his affidavit as showing a contrary intention, but in this respect, the trust instrument being unambiguous, controls. Helvering v. Coleman-Gilbert, 296 U.S. 369, 373, 374, 56 S.Ct. 285, 80 L.Ed. 278.
The taxpayer contends that, since § 506, 26 U.S.C.A. § 555, provides that if “the gift is made in property, the value thereof at the date of the gift shall be considered the amount of the gift”, only the value of the interest in the property transferred should be included in the return, and the value of the interest, in the property transferred, which he retained, should be excluded from the amount of the gift. 'Respondent contends that since there was a “spendthrift trust” provision in each instrument prohibiting alienation of the interest of any beneficiary, the taxpayer’s interest could have no value because it could not be transferred. Respondent’s contention is not sound, however, because such a “spendthrift trust” provision, in Massachusetts, California, and generally, is invalid as to the creditors of the trustor. 1 Bogert, Trusts and Trustees, p. 7, 730, § 224; 1 Restatement of the Law of Trusts, p. 386, § 156; 65 C.J. 239, 240, § 27. Therefore, his prospective right to the income upon the occurrence of certain events, was capable of alienation. That particular feature, however, is of little effect, because under the mortality tables, it appears that the taxpayer would outlive both his mother and father. If he did he would be entitled to the corpus of the trust freed from any restraint on alienation, and it is readily conceivable that such possibility had a value.
Such value should have been deducted from the value of the securities transferred, but there was no evidence of such value submitted to the Board.
Section 601 of the Revenue Act of 1928, 45 Stat. 871, empowers the Board to prescribe its “rules iof practice and procedure”. Rule 32 (Rev. to July 1, 1938) provides that the burden of proof shall be on the taxpayer, and Rule 31(f) provides that a failure of proof “will be ground for dismissal”. Rule 19 provides in part: “Motions for rehearing, reconsideration, further hearing, and the like, to be considered timely, shall be made within 30 days after promulgation or entry of the report”. The memorandum opinion was entered on June 10, 1938. The taxpayer’s motion to adduce additional evidence was filed July 13, 1938, and was denied without indication of the reason therefor on July 20, 1938. The reason for the denial may have been because it was not timely filed, or it may have been because such evidence was “available to the petitioner in ample time to present it before the Board had made and filed its ■ findings of fact and opinion”. Bankers Coal Co. v. Burnet, 287 U.S. 308, 313, 55 S.Ct. 150, 77 L.Ed. 325. Whichever it was, we cannot say the Board abused its discretion.
In this connection, the taxpayer relies on Helvering v. Taylor, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623, where it was held that remand to the Board was proper where the taxpayer had shown the Board’s decision to be wrong, but had not submitted evidence to show the correct amount of tax due. That case is not in point here because the taxpayer has not shown that his interest in the trust had a value. While it is conceivable that it might have, it is also conceivable that it might not have. For example, the taxpayer’s health might be in such condition that his expectancy under the mortality tables would not be applicable. In the absence of proof of the value, the rule in Helvering v. Taylor, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623, is not applicable, because it is not shown that the Board’s decision was wrong.
Affirmed.
Heiner v. Mellon, 304 U.S. 271, 279, 58 S.Ct. 926, 82 L.Ed. 1337. Compare the statement in Erie R. Co. v. Tompkins. 304 U.S. 64. 78. 58 S.Ct. 817. 822. 82 L.Ed. 1188, 114 A.L.R. 1487 that there “is no federal general common law”.
Question: Did the court rule in favor of the appellant on the issue of a conflict of laws ( which laws or rules apply ) other than federal v state or foreign v domestic (e.g., one state vs second state)?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_genresp1
|
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.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
CHICAGO & W. I. R. CO. v. CHICAGO & E. R. CO (two cases). GRAND TRUNK WESTERN R. CO. v. CHICAGO & W. I. R. CO. et al. PETTIBONE et al. v. CHICAGO & W. I. R. CO. et al.
Nos. 7875-7877.
Circuit Court of Appeals, Seventh Circuit.
March 17, 1943.
Rehearing Denied Jan. 21, 1944.
See 140 F.2d 130.
John C. Slade, Frank H. Towner, and Bryce L. Hamilton, all of Chicago, 111., and H. V. Spike, of Detroit, Mich., for Grand Trunk Western R. Co.
Elmer W. Freytag, of Chicago, 111., for receivers of Wabash Ry. Co.
K. L. Richmond, Arthur M. Cox, and Frederic H. Stafford, all of Chicago, 111. (A. F. Reichmann and Andrew J. Dallstream, both of Chicago, 111., of counsel),, for Chicago & Eastern 111. R. Co.
J. R. Barse, Ernest S. Ballard, and Francis H. Uriell, all of Chicago, 111., for Chicago & Western Indiana R. Co.
Clyde E. Shorey, Robt. W. Schupp, and Frederic Barth, all of Chicago, 111., for Chicago & Erie R. Co.
Cope J. Hanley, and B. G. Stackhouse, both of Chicago, 111., for Trustees of Chicago, I. & L. Ry. Co.
Before EVANS, SPARKS, and MAJOR, Circuit Judges.
EVANS, Circuit Judge.
These four appeals were consolidated for presentation. They raise somewhat similar questions. Three, Nos. 7875-7, may be disposed of in one opinion. The appeal in No. 7878 must be separately considered and will be treated in a separate opinion. Chicago & Erie R. Co. v. Chicago & Western Indiana R. Co., 140 F.2d 126.
Generally speaking, all the appeals involve the distribution of the obligations and the maintenance and operating expenses of the Chicago and Western Indiana Railroad Company, herein called the Western Indiana, which was organized in 1879, to provide terminal facilities for use by such railroads as might become its lessees. Western Indiana holds the legal title to what is known as the old part of the Dearborn Street passenger station, and general facilities, with the land, and approximately 25 miles of first or main-line railroad tracks and other tracks called second, as well as other property.
It entered into 999 year leases with five lessees: (1) Chicago and Erie Railroad Company, here called the Erie, appellant in No. 7878; (2) The Grand Trunk Western Railroad Company, here called the Grand Trunk, appellant in No. 7875; (3) The Chicago, Indianapolis and Louisville Railway Company, here called the Monon, appellant in No. 7876; (4) The Chicago and Eastern Illinois Railroad, herein called the Eastern Illinois, and (5) The Wabash Railway Company; hereinafter called the Wabash. The two last-named lessees are the real adversary parties to appellants in Nos. 7875 and 7876. The other lessees oppose Erie in its contentions in No. 7878.
Western Indiana is appellant in appeal No. 7877. It seeks instruction and guidance in making its future rental charges.
The litigation started as a so-called friendly suit, brought by Western Indiana, against Erie, to recover what Western Indiana alleges, and Erie denies, is rental due as Erie’s unpaid, proportionate share of certain costs and expenses incurred by Western Indiana during the period, April 1, 1933, to December 31, 1938.
Allegedly due on this amount was $114,-071.14. Erie denied all liability and filed a counterclaim, alleging that it had overpaid its share of the rentals and sought judgment for the amount of said overpayment, amounting to $126,852.72 on the so-called management issue and for $121,-804.97 on the disputed rental issue.
Erie also is a stockholder of plaintiff. It assails Western Indiana’s action in refusing to curtail certain suburban services which it is operating at a loss of $100,000 a year, after five of the six directors of plaintiff’s board voted in favor of curtailment.
Erie’s counterclaim against Western Indiana caused the latter to bring in the Grand Trunk, the Monon, the Eastern Illinois, and the Wabash, and ask the court to adjudge and declare the rights and liabilities of' all such parties with respect to Western Indiana’s operating and working expenses under the various leases to these parties. It also sought a declaratory judgment which would be its guide for distribution of its future rental charges. The new parties defendant deny liability. Grand Trunk and Monon each filed cross claims and counterclaims and asked for an accounting. All the bars were now down. The litigation provided a field day for all parties who entered their favorites, — dark horse grievances.
A further statement of the issues can best be understood if a short resumé of the Western Indiana’s history and activities is given. Organized in 1879, for the purpose of constructing a line of railway from Indiana State Line and also from Dolton, Illinois, into the City of Chicago, and there providing terminal facilities for use in common by Eastern Illinois and such other railroads as might become its lessees, the first stage of its construction was completed in 1880, since which time it has been the owner of a terminal in Chicago and two main lines of tracks between this terminal and the State Line near Hammond, Indiana, and the other at Dolton, Illinois. In addition to these two short main lines, Western Indiana owns “tracks, switches, turnouts, side tracks, yards, stations, appendages, and terminal facilities” comprising what is known as its “common property.”
Since 1880, additions and betterments to the common property in the way of improvements have been made. It has raised its tracks; it has also acquired what is known as the Belt Division and also various tracks, yards, and facilities not included in the “common property.”
Between October, 1879 and December, 1881, Western Indiana granted five, generally similar, leases, each for 999 years to the five above-named lessees, or their predecessors. The first lease was to Eastern Illinois. Each lease granted exclusive right to use certain described portions of the terminal property and also the right to use, in common with Western Indiana and such other company or companies as might obtain from Western Indiana the grant of similar rights, all the specified portions of the main tracks, passenger depot, and appurtenances.
The lease to Eastern Illinois gave it the exclusive right to conduct the entire local business between Chicago and Dolton. The lease to Erie gave Erie a similar right to the local business between Calumet River and Hammond, Indiana.
Each lease provided that each lessee should pay $5 per year, and such sum as would pay the interest upon the Western Indiana’s mortgage and provide sinking funds for the payment of the principal in 35 years from January 1, 1885. Said lease also provided for the lessee’s paying taxes and assessments, as well as all expenses of maintenance, management, and operation.
The different bases of rent payment are what has led to conflicts, disputes, and to litigation. Four times these disputes have reached this court. 131 F.2d 215; In re Chicago & E. I. R. Co., 94 F.2d 296; Chicago & W. I. R. Co. v. Chicago & E. I. R. Co., 86 F.2d 441; Grand Trunk W. R. Co. v. Chicago & E. I. R. Co., 141 F. 785.
Each time a different phase of the ever-hot and burning controversy was involved.
Rental payments were determined in one of two ways: either on the basis of use which was measured by the ratio of engine and car use of the property by one lessee to the total engine and car use of all five lessees. This was called the wheelage basis. The other rental called for payment by each lessee equally.
While the Western Indiana was originated as an independent venture, the stock of the company was soon acquired by the five lessee railways, each of which owned 20%. Such ownership has continued in the same ratio since 1882. About that same date an agreement was made, known as the 1882 Inter-Tenant Agreement, which provided that Western Indiana should exclusively manage and control all the property used by Western Indiana and its five lessees; should furnish at cost all facilities and perform all services required by it and as defined in the Inter-Tenant Agreement. Some expenses were to be distributed on the wheelage basis. Other expenses were to be borne equally by the owner-tenants. For exact coverage, read the provisions hereafter quoted.
The original bond issue was supplemented by a new bond issue when a new passenger station and additional track were constructed and numerous betterments were made which resulted in a new agreement executed in 1902, the terms of which and their effect on the 1882 Inter-Tenant Agreement are of large, if not determinative, importance in the disposition of these appeals. A new consolidated mortgage for $50,000,000 was negotiated. The five lessees executed an agreement which provided for the issuance of the mortgage and bond issue and “for the execution of new contracts of leasing,” all to be embodied in one document. The joint supplemental lease bore date, July 1, 1902, and carried into effect this preliminary agreement of the tenants. It provided for the refunding of the bond issue, the payment of rentals, and other matters of no particular importance in this case.
One paragraph of large importance is No. 33. It is set forth in the margin. Beneath it is paragraph 6 of the Inter-Tenant Agreement of 1882. These two afford the piece de resistance of this suit.
Since 1902, additional bonds have been issued and the lessees have, through additional leases, obligated themselves to pay additional rental, that interest and principal on the bonds may be always paid.
The property of Western Indiana is used in part by other railroads. At the present time they are three in number, — the Belt Railroad, the Atchison, Topeka and Santa Fe Railway Co., and the Elgin, Joliet and Eastern Railway Company. It has also rented properties, nine parcels, paying therefor, $90,084.25 per year.
The business of the five-owner-lessees developed somewhat differently, and the rental payments on the wheelage basis began to vary. As a result, it became a matter of advantage to one tenant to pay its rental on the wheelage basis, while to another, an advantage lay in payment on an equal basis.
A by-law of Western Indiana provided:
“A. In the management and control of the railroad and property of the Company which is used in common by the present five railway company lessees thereof, * * * and in the establishment and enforcement of rules and regulations for the use of said railroad property, it shall be necessary to secure the unanimous approval of said railway company lessees.”
Various efforts to effect a compromise were defeated by the spokesmen of one or more tenants. Auditors and Committees of Advisors made reports as to the correct method of determining whether an item fell within the wheelage proviso, but all reports came to naught for want of unanimous approval. The lessee or lessees who were benefited by the prevailing method of distributing expenses blocked all possible proposed settlements and attempted clarifications. The lessor was not consistent or uniform in its rulings. In one instance a substantial item was allocated first on a wheelage basis, then on an equal basis, then back to the wheelage basis.
The items which are involved in the appeal of Grand Trunk and Monon, are four in number: (1) disputed rentals; (2) the Grand Trunk payment; (3) Western Indiana’s separate railroad operations; (4) miscellaneous charges and expenses.
(1) The Western Indiana leased nine pieces of property and paid rental therefor. The largest rental item was $48,718.-72, paid annually to Santa Fe. For the remaining eight parcels, a rental of $41,-365.72 was paid to the five shareholder-lessees in different amounts.
(2) An annual payment of $20,665.35 by Western Indiana has been made to Grand Trunk since July 1, 1902, and was to continue until “Grand Trunk shall use lessor’s road south of 49th Street.” (Such use by Grand Trunk has not occurred.) This agreement and payment were the result of certain cancelled provisions in the 1891 lease to Grand Trunk.
(3) Lessor incurred expenses for two services — suburban passenger train service and freight switching. Both are conducted on the common property. The expenses have been heretofore paid out of lessor’s income. In other words, they have not been billed separately to and paid by the lessees.
(4) Charges and expenses for “Foreign Freight Cars- — -Per Diems, Reclaims, and Repairs; Illinois Franchise Tax; Federal Income Tax; Miscellaneous Taxes; Work Equipment — Insurance, Depreciation and Repairs; Expenses on Funded Debt; and Taxes on Surplus Property.”
The contested question in each case turns on the query, — How should these expenses be distributed, on a wlieelage basis, or equally ?
Preliminary questions which are advanced by opposing counsel must first be met.
Much weight is given by Grand Trunk and Monon to the decision of this court in a case (94 F.2d 296) brought to determine whether certain capital stock taxes should be distributed upon the wheel-age basis. Without discussion, we accept, not because of any doctrine of stare decisis, but rather because of the strength and merit back of the reasons and conclusions, that part of the opinion which holds that the lessees are not bound or estopped by their payments to the lessor nor is the lessor bound by its construction of the contract and method of distribution of expenses.
The venture of the lessor and lessees was quite similar to, if indeed it was not, a joint venture. The many items of expenses of the lessor necessitated prompt payments by the lessees. Adjustments could be, and were, made by both sides. None of the parties ever made their payments as a settlement of a stated account. In fact, the lessor occupied somewhat the position of a trustee. Grand Trunk Ry. Co. v. Chicago & W. Ind. R. Co., 7 Cir., 131 F.2d 215.
We are also convinced that if the Inter-Tenant Agreement of 1882 governs, the items here in dispute are chargeable to tenants on the usage or wheelage basis.
Supplementing the reasons given by the court in the capital stock tax case, we find much justice and persuasive reason back of such an allocation. When the five roads, which were to use these terminal facilities of Western Indiana, concluded to embark on this enterprise and to purchase the property, each contributed the same sum and each took 20% of its stock and each acquired a lease with the right to use the common property for a period of 999 years. Each was to pay a rental to cover the charges.
The difficult task of distributing the expenses and charges arose. It was to be done as rentals. Being equal owners, the parties might have provided for carrying the burden of all expenses, equally. Likewise, the burden could have been distributed among the owner-tenants on the basis of their use of the property. The parties adopted neither in whole and both in part. This not only would appear to be the fair way, but the parties so believed and settled the matter by their written agreement. This was in 1882.
As the five roads’ businesses increased and the Chicago terminal became more important and valuable, costly improvements and betterments were required. In twenty years this led to the flotation of a $50,000,000 mortgage and the execution of an agreement to give assurance of interest and refunding payments and to make the bonds sufficiently attractive to insure a low rate of interest.
The fundamental basis for distribution of Western Indiana’s costs, however, remained the same. The tenant was to pay in accordance with the extent of his use, save where the investment improvement and some similar items justly required the owners to pay according to their holdings in the company’s equity.
Concluding as we do that all four items, rental, Grand Trunk payments, Western Indiana’s separate railroad operation, and each miscellaneous charge and expense, would, under the agreement of 1882, be items for which the lessees should pay on a user or wheelage basis, we come to the seriously argued question in the case. It is the ground upon which appellees must rely in order to prevail, i. e., the cancellation (or abrogation) of the 1882 agreement by the 1902 agreement.
Appreciating the importance of this fact, the District Court met the question squarely and, by its 3rd conclusion of law, declared provision of paragraph 9 of the Preliminary Proprietary Agreement and paragraph 33 of the Joint Supplemental Lease of July 1, 1902, “superseded and abrogated paragraphs 5 and 6 of the Inter-Tenant Agreement of November 1, 1882,” and the various provisions in prior leases, etc. The District Court concluded that the Inter-Tenant Agreement of 1882 and the 999 year leases, so far as they provided for rental on a wheelage basis, were cancelled and the new agreement narrowed in scope the services for which rental on a use or wheelage basis was payable.
Grand Trunk and Monon contend that this is at variance with the decision of this court in the capital stock tax case. They also argue that this conclusion is in direct contradiction to the provision of paragraph 37 of the 1902 agreement, which reads:
“That nothing herein contained shall in any way alter, impair, or affect said existing leases, or any or either of them, or any matter or thing therein, except as herein otherwise specifically provided.”
It would have been easy for the parties to have expressly cancelled the rent provisions of the leases and particularly paragraphs five and six of the Inter-Tenant Agreement of 1882, if such were the agreement of the parties. Instead, however, the 1902 agreement, which appellees rely on as a cancellation of the 1882 agreement, expressly provides that the existing leases were in no way altered, impaired or affected, “except as. herein otherwise specifically provided.”
An agreement referred to by counsel and by the District Court, which preceded the execution of this 1902 agreement, was called the “Preliminary Proprietary Agreement.” It was executed, January 16, 1902, and obtained its name, Preliminary, because it was the forerunner, — -the basis — of the ultimate agreement into which it merged when the 1902 agreement was executed, July 1, 1902. It added nothing to the terms or the effect of said July 1, 1902 agreement. Consequently there is presented only the effect of the 1902 agreement on existing leases. The same question was before us in the capital stock tax case.
In view of the express provision above quoted, to the effect that no impairment, no alteration, and no effect of existing leases occurred by virtue of this, the 1902 agreement, “except as herein otherwise specifically provided,” we - must reject the contention that there was “a cancellation” or “an abrogation” of paragraphs 5 and 6 of the 1882 agreement by the July 1st, 1902 agreement.
This conclusion being inescapable, we must read and give effect to paragraph 33 to ascertain the extent that the existing leases were by it otherwise specifically superseded.
In describing the working expenses for which the parties were liable on a wheelage basis, paragraph 6 of the 1882 agreement provides:
“The term, ‘working expenses,’ as used in this agreement, shall include * * * all judgments against the Western Indiana Company and the expense of litigation, and all other claims and demands of every name, nature and description, for which the Western Indiana Company may be legally liable, excepting its mortgage debt and the interest thereon, and excepting therefrom, and from all the provisions of this paragraph, such claims and demands as, under tins agreement, or the leases and supplemental leases between the Western Indiana Company and the several parties of the second part, should be paid exclusively by one of the parties of the second part. * * * ” (Italics ours.)
This italicised provision does not appear in paragraph 33 of the 1902 agreement. Specifically, the question is, — Should we, in view of paragraph 37 (1902 agreement) heretofore quoted, which retained in full force and effect every provision of the existing leases (“or matter or thing therein”) not “herein otherwise specifically provided,” hold that this provision of paragraph 6 was cancelled? We had occasion to discuss the same subject in the capital stock tax case and concluded that this agreement, appearing in paragraph 6, remained intact after the 1902 agreement. We can not see how any different conclusion could have been reached. Paragraph 37 of the 1902 agreement expressly covers the situation. The quoted agreement appearing in paragraph 6 does not come within the exception of paragraph 37. It therefore clearly follows that the lessees are all bound by the above-quoted provision of section six and must pay the expenses, such as rent and other items which are the subject of this litigation, on a wheelage basis.
In disposing of this case we have given scant attention to the application of the doctrine of stare decisis. We have expressed our views on the effect to be given to the rules of stare decisis, “law of the case,” and res adjudícala in Luminous Co. v. Freeman Co., 7 Cir., 3 F.2d 577, 578 Counsel for appellants in Nos. 7875-6 have insisted that this case is governed by the decision of this court in In re Chicago & E. I. R. Co., 94 F.2d 296.
It is not to be understood that we are indifferent to the rule of stare decisis. In view of the earnest contention of the parties, their relations to each other, the evident desire of Western Indiana and at least some of the other lessees, to keep this large and important venture operating justly and fairly, we have felt it wise to reconsider the questions and, irrespective of the capital stock tax decision, reach an independent conclusion.
Our conclusion is that paragraph 37 of the 1902 agreement is express and explicit in its terms. That paragraph makes it impossible for us to conclude that the agreement of 1902 abrogated the previous existing agreements or rights of the lessees. On the other hand, that paragraph expressly sustained all existing contract rights not specifically changed. Among such rights was the lessees’ right to have certain expenses paid on the wheelage basis. Included within the terms of the provision which called for payment on wheelage basis was “any and all other claims and demands of every name, nature and description for which the Western Indiana Company may be legally liable.”
The decree of the District Court is reversed with directions to enter one in accordance with the conclusions expressed in this opinion. The Western Indiana should be granted a decree instructing it to allocate expenses in so far as the items here involved are concerned, among the lessees on a wheelage basis. The decree to be entered should provide that Western Indiana should restate its account charging some of the lessees with the difference between what they have paid and what they should pay on a wheelage basis, and crediting others with the difference between what they have paid on an equal basis, and what they should have paid on a wheelage basis. The decree will be subject to a further modification if there be any alteration or change in the method of apportioning expenses to be distributed on a wheelage basis if the appeal in No. 7878, Chicago & Erie Railroad Co. v. Chicago & Western Indiana R. Co., necessitates or directs a modification of existing methods.
“33. Operating Expenses Divided on Wheelage] Eleventh. That after the date hereof the lessor shall exclusively manage, operate and maintain every portion of the common property; and the entire cost of the management, operation, maintenance, repair and renewal of, and of all taxes, liens, water rents and assessments on, said railroad, buildings and facilities, the common use of which is reserved to the parties hereto, and the entire cost of the management, operation, maintenance, repair and renewal of, and all taxes, liens, water rents and assessments on, all enlargements and improvements thereof and additions thereto and on and to any other railroad hereafter acquired by the lessor for the common use of the parties hereto, shall he borne by said lessees in the proportion of their several wheelage uses of the various portions of said railroad to the total wheel-age use thereof; and for the purpose of distributing such cost, the lessor shall divide by lines across and at right angles with its right of way, its said railroad and property, including all appurtenances, into such sections as may be necessary in order to equitably distribute such cost of the management, operation, maintenance, repair and renewal of, and all taxes, liens, water rents and assessments on, said several sections among the parties of the second part in proportion to their respective wheelage uses of such sections; and it may, from time to time, change such sectional divisions the better to subserve the purpose and intent aforesaid.”
“6th. The term, ‘working expenses,’ as used in this agreement, shall include all taxes and assessments, ordinary and extraordinary, against the property of the Western Indiana Company, except that leased as aforesaid to the said Belt Railway Company, and property leased, or that may be leased, exclusively to one of the parties of the second part, or some other company or person; the cost of maintaining, repairing and renewing its railroad, tracks, buildings and other property, in the common use of the parties of the second part; the expense of providing and maintaining gates, signals, semaphores and lights, and of complying with any and all requirements that may be imposed by national, state or municipal authority; the expense of all service which the Western Indiana Company may have to employ; the cost of maintaining its corporate organization, and of protecting and defending its property, including suitable insurance thereof; all judgments against the Western Indiana Company and the expense of litigation, and all other claims and demands of every name, nature amd description, for which the Western Indiana Company may be legally liable, excepting its mortgage debt and the interest thereon, and excepting therefrom, and from all the provisions of this paragraph, such claims and demands as, under this agreement, or the leases and supplemental leases between the Western Indiana Company and the several parties of the second part, should be paid exclusively by one of the parties of the second part. The cost of permanent improvements and of additions to the Western Indiana Company property shall not be deemed to be included in the term ‘working expenses’ as used in this paragraph.” (Italics ours.)
For a telling statement of the reasons why we so conclude, see Judge Findley’s opinion in 94 F.2d 296.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_genapel2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
UNITED STATES of America ex rel. William Lee EVANS, Petitioner-Appellant, v. Harold W. FOLLETTE (successor to Edward M. Fay), as Warden of Green Haven Prison, Stormville, New York, Respondent-Appellee.
No. 439, Docket 30166.
United States Court of Appeals Second Circuit.
Argued June 15, 1966.
Decided July 14, 1966.
Anthony L. Fletcher, New York City (Anthony F. Marra, New York City, on the brief), for appellant.
Barry Mahoney, Asst. Atty. Gen. of the State of New York (Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., Albert O. Marston, Asst. Atty. Gen., on the brief), for appellee.
Before HAYS, ANDERSON and FEINBERG, Circuit Judges.
PER CURIAM:
After a consolidated trial of complaints made by three different persons involving acts committed at different times, appellant Evans was convicted, in the former Court of General Sessions of New York County, of two counts of robbery, two counts of sodomy, three counts of assault with intent to commit sodomy and two counts of assault with intent to commit robbery. Appellant now claims that his detention is unconstitutional because the due process clause of the Fourteenth Amendment requires separate trials in cases where the crimes charged were of such a sordid nature that allowing the jury to hear evidence as to all acts might prejudice them when considering the specific complaint of each victim.
Section 279 of the New York Code of Criminal Procedure allows for the consolidation of charges of the “same or a similar character,” at the discretion of the trial judge. Compare Rule 8(a) of the Federal Rules of Criminal Procedure. The trial judge charged the jury:
“each count is to be taken as a separate and distinct case; you decide each matter as you wish, but you cannot carry over the testimony from one complainant to another. They are not related in any manner whatsoever. * ■* *»»
We must assume that the jury followed these instructions. See Delli Paoli v. United States, 352 U.S. 232, 242, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957); Op-per v. United States, 348 U.S. 84, 94-95, 75 S.Ct. 158, 99 L.Ed. 101 (1954).
At most we are presented with an abuse of discretion by a state trial judge in granting the motion for consolidation. Compare United States v. Lotsch, 102 F.2d 35 (2d Cir.), cert. denied, 307 U.S. 622, 59 S.Ct. 793, 83 L.Ed. 1500 (1939) with Note, Joint and Single Trials Under Rules 8 and 14 of the Federal Rules of Criminal Procedure, 74 Yale L.J. 553, 556-60 (1965). Appellant has cited no ease which indicates that this is an issue of constitutional dimensions. Neither United States ex rel. Scoleri v. Banmiller, 310 F.2d 720 (3d Cir. 1962), cert. denied, 374 U.S. 828, 83 S.Ct. 1866, 10 L.Ed.2d 1051 (1963), which concerned the wholly unrelated question of a unitary trial of the issues of guilt and penalty pursuant to a statutory mandate, nor any of the other cases cited by appellant, hold that joinder in such a situation is constitutionally invalid.
The court wishes to express to Anthony L. Fletcher its gratitude for his conscientious and able handling of this appeal.
Affirmed.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_respondent
|
137
|
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.
KUMHO TIRE CO., LTD., et al. v. CARMICHAEL et al.
No. 97-1709.
Argued December 7, 1998
Decided March 23, 1999
Breyer, J., delivered the opinion of the Court, Parts I and II of which were unanimous, and Part III of which was joined by Rehnquist, C. J., and O’Connor, Scaua, Kennedy, Souter, Thomas, and Ginsburg, JJ. Scalia, X, filed a concurring opinion, in which O’Connor and Thomas, JX, joined, post, p. 158. Stevens, X, filed an opinion concurring in part and dissenting in part, post, p. 159.
Joseph P. H. Babington argued the cause for petitioners. With him on the briefs were Warren C. Herlong, Jr., John T Dukes, Kenneth S. Getter, and Alan E. Untereiner.
Jeffrey P. Minear argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Waxman, Assistant Attorney General Hunger, Deputy Solicitor General Wallace, Anthony J. Steinmeyer, and John P. Schnitker.
Sidney W. Jackson III argued the cause for respondents. With him on the brief were Robert J. Hedge, Michael D. Hausfeld, Richard S. Lewis, Joseph M. Setters, and Anthony Z. Roisman.
Briefs of amici curiae urging reversal were filed for the American Automobile Manufacturers Association et al. by Michael Hoenig, Phillip D. Brady, and Charles H. Lockwood II; for the American Insurance Association et al. by Mark F. Horning and Craig A Berrington; for the American Tort Reform Association et al. by Victor E. Schwartz, Patrick W. Lee, Robert P. Charrow, Mark A Behrens, Jan S. Amundson, and Quentin Riegel; for the Product Liability Advisory Council, Inc., et al. by Mary A Wells, Robin S. Conrad, and Donald D. Evans; for the Rubber Manufacturers Association by Bert Black, Michael S. Truesdale, and Michael L. McAllister; for the Washington Legal Foundation et al. by Arvin Maskin, Theodore E. Tsekerides, Daniel J. Popeo, and Paul D. Kamenar; for John Allen et al. by Carter G. Phillips and David M. Levy; and for Stephen N. Bobo et al. by Martin S. Kaufman.
Briefs of amici curiae urging affirmance were filed for the Association of Tidal Lawyers of America by Jeffrey Robert White and Mark S. Man-dell; for the Attorneys Information Exchange Group, Inc., by Bruce J. McKee and Francis H. Hare, Jr.; for Bona Shipping (U. S.), Inc., et al. by Robert L. Klawetter and Michael F. Sturley; for the International Association of Arson Investigators by Kenneth M. Suggs; for the National Academy of Forensic Engineers by Alvin S. Weinstein, Larry E. Coben, and David V. Scott; for Trial Lawyers for Public Justice, P. C., et al. by Gerson H. Smoger, Arthur H. Bryant, Sarah Posner, William A Rossbach, and Brian Wolfman; and for Margaret A. Berger et al. by Kenneth J. Chese- bro, Edward J. Imwinkelried, Ms. Berger, pro se, Stephen A. Saltzburg, David G. Wirtes, Jr., Don Howarth, Suzelle M. Smith, Edward M. Ricci, C. Tab Turner, James L. Gilbert, and David L. Perry.
of amici curiae were filed for the Defense Research Institute by Lloyd H. Milliken, Jr., Julia Blackwell Gelinas, Nelson D. Alexander, and Sandra Boyd Williams; for the National Academy of Engineering by Richard A. Meserve, Elliott Schulder, and Thomas L. Cubbage III; and for Neil Vidmar et al. by Ronald Simon, Turner W. Branch, Ronald Motley, Robert Habush, and M. Clay Alspaugh.
Justice Breyer
delivered the opinion of the Court.
In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U. S. 579 (1993), this Court focused upon the admissibility of scientific expert testimony. It pointed out that such testimony is admissible only if it is both relevant and reliable. And it held that the Federal Rules of Evidence “assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Id., at 597. The Court also discussed certain more specific factors, such as testing, peer review, error rates, and “acceptability” in the relevant scientific community, some or all of which might prove helpful in determining the reliability of a particular scientific “theory or technique.” Id., at 593-594.
This case requires us to decide how Daubert applies to the testimony of engineers and other experts who are not scientists. We conclude that Dauberfs general holding— setting forth the trial judge’s general “gatekeeping” obligation — applies not only to testimony based on “scientific” knowledge, but also to testimony based on “technical” and “other specialized” knowledge. See Fed. Rule Evid. 702. We also conclude that a trial court may consider one or more of the more specific factors that Daubert mentioned when doing so will help determine that testimony’s reliability. But, as the Court stated in Daubert, the test of reliability is “flexible,” and Dauberfs list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather, the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination. See General Electric Co. v. Joiner, 522 U. S. 136, 143 (1997) (courts of appeals are to apply “abuse of discretion” standard when reviewing district court’s reliability determination). Applying these standards, we determine that the District Court’s decision in this case — not to admit certain expert testimony — was within its discretion and therefore lawful.
H
On July 6,1993, the right rear tire of a minivan driven by Patrick Carmichael blew out. In the accident that followed, one of the passengers died, and others were severely injured. In October 1993, the Carmichaels brought this diversity suit against the tire’s maker and its distributor, whom we refer to collectively as Kumho Tire, claiming that the tire was defective. The plaintiffs rested their case in significant part upon deposition testimony provided by an expert in tire failure analysis, Dennis Carlson, Jr., who intended to testify in support of their conclusion.
Carlson’s upon technology that are not in dispute. A steel-belted radial tire like the Carmichaels’ is made up of a “carcass” containing many layers of flexible cords, called “plies,” along which (between the cords and the outer tread) are laid steel strips called “belts.” Steel wire loops, called “beads,” hold the cords together at the plies’ bottom edges. An outer layer, called the “tread,” encases the carcass, and the entire tire is bound together in rubber, through the application of heat and various chemicals. See generally, e. g., J. Dixon, Tires, Suspension and Handling 68-72 (2d ed. 1996). The bead of the tire sits upon a “bead seat,” which is part of the wheel assembly. That assembly contains a “rim flange,” which extends over the bead and rests against the side of the tire. See M. Mavrigian, Performance Wheels & Tires 81,83 (1998) (illustrations).
Carlson’s testimony also accepted certain background facts about the tire in question. He assumed that before the blowout the tire had traveled far. (The tire was made in 1988 and had been installed some time before the Carmi-chaels bought the used minivan in March 1993; the Carmi-chaels had driven the van approximately 7,000 additional miles in the two months they had owned it.) Carlson noted that the tire’s tread depth, which was % of an inch when new, App. 242, had been worn down to depths that ranged from %2 of an inch along some parts of the tire, to nothing at all along others. Id., at 287. He conceded that the tire tread had at least two punctures which had been inadequately repaired. Id., at 258-261, 322.
Despite the tire’s age and history, Carlson concluded that a defect in its manufacture or design caused the blowout. He rested this conclusion in part upon three premises which, for present purposes, we must assume are not in dispute: First, a tire’s carcass should stay bound to the inner side of the tread for a significant period of time after its tread depth has worn away. Id., at 208-209. Second, the tread of the tire at issue had separated from its inner steel-belted carcass prior to thé accident. Id., at 336. Third, this “separation” caused the blowout. Ibid.
Carlson’s conclusion that a defect caused the separation, however, rested upon certain other propositions, several of which the defendants strongly dispute. First, Carlson said that if a separation is not caused by a certain kind of tire misuse called “overdeflection” (which consists of underinflat-ing the tire or causing it to carry too much weight, thereby generating heat that can undo the chemical tread/carcass bond), then, ordinarily, its cause is a tire defect. Id., at 193-195, 277-278. Second, he said that if a tire has been subject to sufficient overdeflection to cause a separation, it should reveal certain physical symptoms. These symptoms include (a) tread wear on the tire’s shoulder that is greater than the tread wear along the tire’s center, id., at 211; (b) signs of a “bead groove,” where the beads have been pushed too hard against the bead seat on the inside of the tire’s rim, id., at 196-197; (e) sidewalls of the tire with physical signs of deterioration, such as discoloration, id., at 212; and/or (d) marks on the tire’s rim flange, id., at 219-220. Third, Carlson said that where he does not find at least two of the four physical signs just mentioned (and presumably where there is no reason to suspect a less common cause of separation), he concludes that a manufacturing or design defect caused the separation. Id., at 223-224.
Carlson added that he had inspected the tire in question. He conceded that the tire to a limited degree showed greater wear on the shoulder than in the center, some signs of “bead groove,” some discoloration, a few marks on the rim flange, and inadequately filled puncture holes (which can also cause heat that might lead to separation). Id., at 256-257, 258-261, 277, 303-304, 308. But, in each instance, he testified that the symptoms were not significant, and he explained why he believed that they did not reveal overdeflection. For example, the extra shoulder wear, he said, appeared primarily on one shoulder, whereas an overdeflected tire would reveal equally abnormal wear on both shoulders. Id., at 277. Carlson concluded that the tire did not bear at least two of the four overdefleetion symptoms, nor was there any less obvious cause of separation; and since neither overde-flection nor the punctures caused the blowout, a defect must have done so.
Kumho Tire moved the District Court to exclude Carlson’s testimony on the ground that his methodology failed Rule 702’s reliability requirement. The court agreed with Kumho that it should act as a Daubert-type reliability “gatekeeper,” even though one might consider Carlson’s testimony as “technical,” rather than “scientific.” See Carmichael v. Samyang Tires, Inc., 923 F. Supp. 1514, 1521-1522 (SD Ala. 1996). The court then examined Carlson’s methodology in light of the reliability-related factors that Daubert mentioned, such as a theory’s testability, whether it “has been a subject of peer review or publication,” the “known or potential rate of error,” and the “degree of acceptance... within the relevant scientific community.” 923 F. Supp., at 1520 (citing Daubert, 509 U. S., at 589-595). The District Court found that all those factors argued against the reliability of Carlson’s methods, and it granted the motion to exclude the testimony (as well as the defendants’ accompanying motion for summary judgment).
The plaintiffs, arguing that the court’s application of the Daubert factors was too “inflexible,” asked for reconsideration. And the court granted that motion. Carmichael v. Samyang Tires, Inc., Civ. Action No. 93-0860-CB-S (SD Ala., June 5, 1996), App. to Pet. for Cert. 1c. After reconsidering the matter, the court agreed with the plaintiffs that Daubert should be applied flexibly, that its four factors were simply illustrative, and that other factors could argue in favor of admissibility. It conceded that there may be widespread acceptance of a “visual-inspection method” for some relevant purposes. But the court found insufficient indications of the reliability of
“the component of Carlson's tire failure analysis which most concerned the Court, namely, the methodology employed by the expert in analyzing the data obtained in the visual inspection, and the scientific basis, if any, for such an analysis.” Id., at 6c.
It consequently affirmed its earlier order declaring Carlson’s testimony inadmissible and granting the defendants’ motion for judgment.
The Eleventh Circuit reversed. See Carmichael v. Samyang Tire, Inc., 131 F. 3d 1433 (1997). It “reviewed]... de novo” the “district court’s legal decision to apply Daubert Id., at 1485. It noted that “the Supreme Court in Daubert explicitly limited its holding to cover only the ‘scientific context,’ ” adding that “a Daubert analysis” applies only where an expert relies “on the application of scientific principles,” rather than “on skill- or experience-based observation.” Id., at 1435-1436. It concluded that Carlson’s testimony, which it viewed as relying on experience, “falls outside the scope of Daubert,” that “the district court erred as a matter of law by applying Daubert in this case,” and that the case must be remanded for further (non-Daubert-type) consideration under Rule 702. 131 F. 3d, at 1436.
mine whether a trial court “may” consider Dauberts specific “factors” when determining the “admissibility of an engineering expert’s testimony.” Pet. for Cert. i. We granted certiorari in light of uncertainty among the lower courts about whether, or how, Daubert applies to expert testimony that might be characterized as based not upon “scientific” knowledge, but rather upon “technical” or “other specialized” knowledge. Fed. Rule Evid. 702; compare, e. g., Watkins v. Telsmith, Inc., 121 F. 3d 984, 990-991 (CA5 1997), with, e. g., Compton v. Subaru of America, Inc., 82 F. 3d 1513, 1518-1519 (CA10), cert. denied, 519 U. S. 1042 (1996).
II
A
In Daubert, this Court held that Federal Rule of Evidence 702 imposes a special obligation upon a trial judge to “ensure that any and all scientific testimony... is not only relevant, but reliable.” 509 U. S., at 589. The initial question before us is whether this basic gatekeeping obligation applies only to “scientific” testimony or to all expert testimony. We, like the parties, believe that it applies to all expert testimony. See Brief for Petitioners 19; Brief for Respondents 17.
For one thing, Rule 702 itself says:
“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”
This language makes no relevant distinction between “scientific” knowledge and “technical” or “other specialized” knowledge. It makes clear that any such knowledge might become the subject of expert testimony. In Daubert, the Court specified that it is the Rule’s word “knowledge,” not the words (like “scientific”) that modify that word, that “establishes a standard of evidentiary reliability.” 509 U. S., at 589-590. Hence, as a matter of language, the Rule applies its reliability standard to all “scientific,” “technical,” or “other specialized” matters within its scope. We concede that the Court in Daubert referred only to “scientific” knowledge. But as the Court there said, it referred to “scientific” testimony “because that [wa]s the nature of the expertise” at issue. Id., at 590, n. 8.
Neither is the evidentiary Court’s basic Daubert “gatekeeping” determination limited to “scientific” knowledge. Daubert pointed out that Federal Rules 702 and 708 grant expert witnesses testimonial latitude unavailable to other witnesses on the “assumption that the expert’s opinion will have a reliable basis in the knowledge and experience of his discipline.” Id., at 592 (pointing out that experts may testify to opinions, including those that are not based on firsthand knowledge or observation). The Rules grant that latitude to all experts, not just to “scientific” ones.
Finally, it would prove difficult, if not impossible, for judges to administer evidentiary rules under which a gate-keeping obligation depended upon a distinction between “scientific” knowledge and “technical” or “other specialized” knowledge. There is no clear line that divides the one from the others. Disciplines such as engineering rest upon scientific knowledge. Pure scientific theory itself may depend for its development upon observation and properly engineered machinery. And conceptual efforts to distinguish the two are unlikely to produce clear legal lines capable of application in particular cases. Cf. Brief for National Academy of Engineering as Amicus Curiae 9 (scientist seeks to understand nature while the engineer seeks nature’s modification); Brief for Rubber Manufacturers Association as Amicus Curiae 14-16 (engineering, as an “‘applied science,’” relies on “scientific reasoning and methodology”); Brief for John Allen et al. as Amici Curiae 6 (engineering relies upon “scientific knowledge and methods”).
Neither is there a convincing need to make such distinctions. Experts of all kinds tie observations to conclusions through the use of what Judge Learned Hand called “general truths derived from... specialized experience.” Hand, Historical and Practical Considerations Regarding Expert Testimony, 15 Harv. L. Rev. 40, 54 (1901). And whether the specific expert testimony focuses upon specialized observations, the specialized translation of those observations into theory, a specialized theory itself, or the application of such a theory in a particular case, the expert’s testimony often will rest “upon an experience confessedly foreign in kind to [the jury’s] own.” Ibid. The trial judge’s effort to assure that the specialized testimony is reliable and relevant can help the jury evaluate that foreign experience, whether the testimony reflects scientific, technical, or other specialized knowledge.
We conclude that Daubert’s general principles apply to the expert matters described in Rule 702. The Rule, in respect to all such matters, “establishes a standard of evidentiary reliability.” 509 U. S., at 590. It “requires a valid... connection to the pertinent inquiry as a precondition to admissibility.” Id., at 592. And where such testimony’s factual basis, data, principles, methods, or their application are called sufficiently into question, see Part III, infra, the trial judge must determine whether the testimony has “a reliable basis in the knowledge and experience of [the relevant] discipline.” 509 U. S., at 592.
B
Petitioners ask more specifically whether a trial judge determining the “admissibility of an engineering expert’s testimony” may consider several more specific factors that Daubert said might “bear on” a judge’s gatekeeping determination. Brief for Petitioners i. These factors include:
—Whether a “theory or technique... can be (and has been) tested”;
—Whether it “has been subjected to peer review and publication”;
—Whether, in respect to a particular technique, there is a high “known or potential rate of error” and whether there are “standards controlling the technique’s operation”; and
—Whether the theory or technique enjoys “ ‘general acceptance’” within a “‘relevant scientific community.’”
509 U. S., at 592-594.
Emphasizing the word “may” in the question, we answer that question yes.
Engineering upon the reliability of which will be at issue in some eases. See, e. g., Brief for Stephen N. Bobo et al. as Amici Curiae 23 (stressing the scientific bases of engineering disciplines). In other cases, the relevant reliability concerns may focus upon personal knowledge or experience. As the Solicitor General points out, there are many different kinds of experts, and many different kinds of expertise. See Brief for United States as Amicus Curiae 18-19, and n. 5 (citing eases involving experts in drug terms, handwriting analysis, criminal modus operandi, land valuation, agricultural practices, railroad procedures, attorney’s fee valuation, and others). Our emphasis on the word “may” thus reflects Dauberfs description of the Rule 702 inquiry as “a flexible one.” 509 U. S., at 594. Daubert makes clear that the factors it mentions do not constitute a “definitive checklist or test.” Id., at 593. And Daubert adds that the gatekeeping inquiry must be “ ‘tied to the facts’ ” of a particular “case.” Id., at 591 (quoting United States v. Downing, 758 F. 2d 1224, 1242 (CA3 1985)). We agree with the Solicitor General that “[t]he factors identified in Daubert may or may not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular expertise, and the subject of his testimony.” Brief for United States as Amicus Curiae 19. The conclusion, in our view, is that we can neither rule out, nor rule in, for all cases and for all time the applicability of the factors mentioned in Daubert, nor can we now do so for subsets of eases categorized by category of expert or by kind of evidence. Too mueh depends upon the particular circumstances of the particular case at issue.
Daubert itself is not to the contrary. It made clear that its list of factors was meant to be helpful, not definitive. Indeed, those factors do not all necessarily
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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sc_partywinning
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
TEXAS v. JOHNSON
CERTIORARI TO THE COURT OF CRIMINAL APPEALS OF TEXAS
No. 88-155.
Argued March 21, 1989
Decided June 21, 1989
Kathi Alyce Drew argued the cause for petitioner. With her on the briefs were John Vance and Dolena T. Westergard.
William M. Kunstler argued the cause for respondent. With him on the brief was David D. Cole.
Briefs of amici curiae urging reversal were filed for the Legal Affairs Council by Wyatt B. Durrette, Jr., and Bradley B. Cavedo; and for the Washington Legal Foundation by Daniel J. Popeo and Paul D. Kamenar.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Peter Linzer, James C. Harrington, and Steven R. Shapiro; for the Christie Institute et al. by James C. Goodale; and for Jasper Johns et al. by Robert G. Sugarman and Gloria C. Phares.
Justice Brennan
delivered the opinion of the Court.
After publicly burning an American flag as a means of political protest, Gregory Lee Johnson was convicted of desecrating a flag in violation of Texas law. This case presents the question whether his conviction is consistent with the First Amendment. We hold that it is not.
I
While the Republican National Convention was taking place in Dallas in 1984, respondent Johnson participated in a political demonstration dubbed the “Republican War Chest Tour.” As explained in literature distributed by the demonstrators and in speeches made by them, the purpose of this event was to protest the policies of the Reagan administration and of certain Dallas-based corporations. The demonstrators marched through the Dallas streets, chanting political slogans and stopping at several corporate locations to stage “die-ins” intended to dramatize the consequences of nuclear war. On several occasions they spray-painted the walls of buildings and overturned potted plants, but Johnson himself took no part in such activities. He did, however, accept an American flag handed to him by a fellow protestor who had taken it from a flagpole outside one of the targeted buildings.
The demonstration ended in front of Dallas City Hall, where Johnson unfurled the American flag, doused it with kerosene, and set it on fire. While the flag burned, the' protestors chanted: “America, the red, white, and blue, we spit on you.” After the demonstrators dispersed, a witness to the flag burning collected the flag’s remains and buried them in his backyard. No one was physically injured or threatened with injury, though several witnesses testified that they had been seriously offended by the flag burning.
Of the approximately 100 demonstrators, Johnson alone was charged with a crime. The only criminal offense with which he was charged was the desecration of a venerated object in violation of Tex. Penal Code Ann. § 42.09(a)(3) (1989). After a trial, he was convicted, sentenced to one year in prison, and fined $2,000. The Court of Appeals for the Fifth District of Texas at Dallas affirmed Johnson’s conviction, 706 S. W. 2d 120 (1986), but the Texas Court of Criminal Appeals reversed, 755 S. W. 2d 92 (1988), holding that the State could not, consistent with the First Amendment, punish Johnson for burning the flag in these circumstances.
The Court of Criminal Appeals began by recognizing that Johnson’s conduct was symbolic speech protected by the First Amendment: “Given the context of an organized demonstration, speeches, slogans, and the distribution of literature, anyone who observed appellant’s act would have understood the message that appellant intended to convey. The act for which appellant was convicted was clearly ‘speech’ contemplated by the First Amendment.” Id., at 95. To justify Johnson’s conviction for engaging in symbolic speech, the State asserted two interests: preserving the flag as a symbol of national unity and preventing breaches of the peace. The Court of Criminal Appeals held that neither interest supported his conviction.
Acknowledging that this Court had not yet decided whether the Government may criminally sanction flag desecration in order to preserve the flag’s symbolic value, the Texas court nevertheless concluded that our decision in West Virginia Board of Education v. Barnette, 319 U. S. 624 (1943), suggested that furthering this interest by curtailing speech was impermissible. “Recognizing that the right to differ is the centerpiece of our First Amendment freedoms,” the court explained, “a government cannot mandate by fiat a feeling of unity in its citizens. Therefore, that very same government cannot carve out a symbol of unity and prescribe a set of approved messages to be associated with that symbol when it cannot mandate the status or feeling the symbol purports to represent.” 755 S. W. 2d, at 97. Noting that the State had not shown that the flag was in “grave and immediate danger,” Barnette, supra, at 639, of being stripped of its symbolic value, the Texas court also decided that the flag’s special status was not endangered by Johnson’s conduct. 755 S. W. 2d, at 97.
As to the State’s goal of preventing breaches of the peace, the court concluded that the flag-desecration statute was not drawn narrowly enough to encompass only those flag burnings that were likely to result in a serious disturbance of the peace. And in fact, the court emphasized, the flag burning in this particular case did not threaten such a reaction. “‘Serious offense’ occurred,” the court admitted, “but there was no breach of peace nor does the record reflect that the situation was potentially explosive. One cannot equate ‘serious' offense’ with incitement to breach the peace. ” Id., at 96. The court also stressed that another Texas statute, Tex. Penal Code Ann. §42.01 (1989), prohibited breaches of the peace. Citing Boos v. Barry, 485 U. S. 312 (1988), the court decided that §42.01 demonstrated Texas’ ability to prevent disturbances of the peace without punishing this flag desecration. 755 S. W. 2d, at 96.
Because it reversed Johnson’s conviction on the ground that §42.09 was unconstitutional as applied to him, the state court did not address Johnson’s argument that the statute was, on its face, unconstitutionally vague and over-broad. We granted certiorari, 488 U. S. 907 (1988), and now affirm.
II
Johnson was convicted of flag desecration for burning the flag rather than for uttering insulting words. This fact somewhat complicates our consideration of his conviction under the First Amendment. We must first determine whether Johnson’s burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment in challenging his conviction. See, e. g., Spence v. Washington, 418 U. S. 405, 409-411 (1974). If his conduct was expressive, we next decide whether the State’s regulation is related to the suppression of free expression. See, e. g., United States v. O’Brien, 391 U. S. 367, 377 (1968); Spence, supra, at 414, n. 8. If the State’s regulation is not related to expression, then the less stringent standard we announced in United States v. O’Brien for regulations of noncommuni-cative conduct controls. See O’Brien, supra, at 377. If it is, then we are outside of O’Brien’s test, and we must ask whether this interest justifies Johnson’s conviction under a more demanding standard. See Spence, supra, at 411. A third possibility is that the State’s asserted interest is simply not implicated on these facts, and in that event the interest drops out of the picture. See 418 U. S., at 414, n. 8.
The First Amendment literally forbids the abridgment only of “speech,” but we have long recognized that its protection does not end at the spoken or written word. While we have rejected “the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea,” United States v. O’Brien, supra, at 376, we have acknowledged that conduct may be “sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments,” Spence, supra, at 409.
In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether “[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.” 418 U. S., at 410-411. Hence, we have recognized the expressive nature of students’ wearing of black armbands to protest American military involvement in Vietnam, Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 505 (1969); of a sit-in by blacks in a “whites only” area to protest segregation, Brown v. Louisiana, 383 U. S. 131, 141-142 (1966); of the wearing of American military uniforms in a dramatic presentation criticizing American involvement in Vietnam, Schacht v. United States, 398 U. S. 58 (1970); and of picketing about a wide variety of causes, see, e. g., Food Employees v. Logan Valley Plaza, Inc., 391 U. S. 308, 313-314 (1968); United States v. Grace, 461 U. S. 171, 176 (1983).
Especially pertinent to this case are our decisions recognizing the communicative nature of conduct relating to flags. Attaching a peace sign to the flag, Spence, supra, at 409-410; refusing to salute the flag, Barnette, 319 U. S., at 632; and displaying a red flag, Stromberg v. California, 283 U. S. 359, 368-369 (1931), we have held, all may find shelter under the First Amendment. See also Smith v. Goguen, 415 U. S. 566, 588 (1974) (White, J., concurring in judgment) (treating flag “contemptuously” by wearing pants with small flag sewn into their seat is expressive conduct). That we have had little difficulty identifying an expressive element in conduct relating to flags should not be surprising. The very purpose of a national flag is to serve as a symbol of our country; it is, one might say, “the one visible manifestation of two hundred years of nationhood.” Id., at 603 (Rehnquist, J., dissenting). Thus, we have observed:
“[T]he flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to symbolize some system, idea, institution, or personality, is a short cut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design.” Barnette, supra, at 632.
Pregnant with expressive content, the flag as readily signifies this Nation as does the combination of letters found in “America.”
We have not automatically concluded, however, that any action taken with respect to our flag is expressive. Instead, in characterizing such action for First Amendment purposes, we have considered the context in which it occurred. In Spence, for example, we emphasized that Spence’s taping of a peace sign to his flag was “roughly simultaneous with and concededly triggered by the Cambodian incursion and the Kent State tragedy.” 418 U. S., at 410. The State of Washington had conceded, in fact, that Spence’s conduct was a form of communication, and we stated that “the State’s concession is inevitable on this record.” Id., at 409.
The State of Texas conceded for purposes of its oral argument in this case that Johnson’s conduct was expressive conduct, Tr. of Oral Arg. 4, and this concession seems to us as prudent as was Washington’s in Spence. Johnson burned an American flag as part — indeed, as the culmination — of a political demonstration that coincided with the convening of the Republican Party and its renomination of Ronald Reagan for President. The expressive, overtly political nature of this conduct was both intentional and overwhelmingly apparent. At his trial, Johnson explained his reasons for burning the flag as follows: “The American Flag was burned as Ronald Reagan was being renominated as President. And a more powerful statement of symbolic speech, whether you agree with it or not, couldn’t have been made at that time. It’s quite a just position [juxtaposition]. We had new patriotism and no patriotism.” 5 Record 656. In these circumstances, Johnson’s burning of the flag was conduct “sufficiently imbued with elements of communication,” Spence, 418 U. S., at 409, to implicate the First Amendment.
1 — I I — I
The government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word. See O’Brien, 391 U. S. at 376-377; Clark v. Community for Creative Non-Violence, 468 U. S. 288, 293 (1984); Dallas v. Stanglin, 490 U. S. 19, 25 (1989). It may not, however, proscribe particular conduct because it has expressive elements. “[W]hat might be termed the more generalized guarantee of freedom of expression makes the communicative nature of conduct an inadequate basis for singling out that conduct for proscription. A law directed at the communicative nature of conduct must, like a law directed at speech itself, be justified by the substantial showing of need that the First Amendment requires.” Community for Creative Non-Violence v. Watt, 227 U.. S. App. D. C. 19, 55-56, 703 F. 2d 586, 622-623 (1983) (Scalia, J., dissenting) (emphasis in original), rev’d sub nom. Clark v. Community for Creative Non-Violence, supra. It is, in short, not simply the verbal or nonverbal nature of the expression, but the governmental interest at stake, that helps to determine whether a restriction on that expression is valid.
Thus, although we have recognized that where “‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms,” O’Brien, supra, at 376, we have limited the applicability of O’Brien’s relatively lenient standard to those cases in which “the governmental interest is unrelated to the suppression of free expression.” Id., at 377; see also Spence, supra, at 414, n. 8. In stating, moreover, that O’Brien’s test “in the last analysis is little, if any, different from the standard applied to time, place, or manner restrictions,” Clark, supra, at 298, we have highlighted the requirement that the governmental interest in question be unconnected to expression in order to come under O’Brien’s less demanding rule.
In order to decide whether O’Brien’s test applies here, therefore, we must decide whether Texas has asserted an interest in support of Johnson’s conviction that is unrelated to the suppression of expression. If we find that an interest asserted by the State is simply not implicated on the facts before us, we need not ask whether O’Brien’s test applies. See Spence, supra, at 414, n. 8. The State offers two separate interests to justify this conviction: preventing breaches of the peace and preserving the flag as a symbol of nationhood and national unity. We hold that the first interest is not implicated on this record and that the second is related to the suppression of expression.
A
Texas claims that its interest in preventing breaches of the peace justifies Johnson’s conviction for flag desecration. However, no disturbance of the peace actually occurred or threatened to occur because of Johnson’s burning of the flag. Although the State stresses the disruptive behavior of the protestors during their march toward City Hall, Brief for Petitioner 34-36, it admits that “no actual breach of the peace occurred at the time of the flagburning or in response to the flagburning.” Id., at 34. The State’s emphasis on the protestors’ disorderly actions prior to arriving at City Hall is not only somewhat surprising given that no charges were brought on the basis of this conduct, but it also fails to show that a disturbance of the peace was a likely reaction to Johnson’s conduct. The only evidence offered by the State at trial to show the reaction to Johnson’s actions was the testimony of several persons who had been seriously offended by the flag burning. Id., at 6-7.
The State’s position, therefore, amounts to a claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace and that the expression may be prohibited on this basis. Our precedents do not countenance such a presumption. On the contrary, they recognize that a principal “function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Terminiello v. Chicago, 337 U. S. 1, 4 (1949). See also Cox v. Louisiana, 379 U. S. 536, 551 (1965); Tinker v. Des Moines Independent Community School Dist. 393 U. S., at 508-509; Coates v. Cincinnati, 402 U. S. 611, 615 (1971); Hustler Magazine, Inc. v. Falwell, 485 U. S. 46, 55-56 (1988). It would be odd indeed to conclude both that “if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection,” FCC v. Pacifica Foundation, 438 U. S. 726, 745 (1978) (opinion of Stevens, J.), and that the government may ban the expression of certain disagreeable ideas on the unsupported presumption that their very disagreeableness will provoke violence.
Thus, we have not permitted the government to assume that every expression of a provocative idea will incite a riot, but have instead required careful consideration of the actual circumstances surrounding such expression, asking whether the expression “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U. S. 444, 447 (1969) (reviewing circumstances surrounding rally and speeches by Ku Klux Klan). To accept Texas’ arguments that it need only demonstrate “the potential for a breach of the peace,” Brief for Petitioner 37, and that every flag burning necessarily possesses that potential, would be to eviscerate our holding in Brandenburg. This we decline to do.
Nor does Johnson’s expressive conduct fall within that small class of “fighting words” that are “likely to provoke the average person to retaliation, and thereby cause a breach of the peace.” Chaplinsky v. New Hampshire, 315 U. S. 568, 574 (1942). No reasonable onlooker would have regarded Johnson’s generalized expression of dissatisfaction with the policies of the Federal Government as a direct personal insult or an invitation to exchange fisticuffs. See id., at 572-573; Cantwell v. Connecticut, 310 U. S. 296, 309 (1940); FCC v. Pacifica Foundation, supra, at 745 (opinion of Stevens, J.).
We thus conclude that the State’s interest in maintaining order is not implicated on these facts. The State need not worry that our holding will disable it from preserving the peace. We do not suggest that the First Amendment forbids a State to prevent “imminent lawless action.” Brandenburg, supra, at 447. And, in fact, Texas already has a statute specifically prohibiting breaches of the peace, Tex. Penal Code Ann. §42.01 (1989), which tends to confirm that Texas need not punish this flag desecration in order to keep the peace. See Boos v. Barry, 485 U. S., at 327-329.
B
The State also asserts an interest in preserving the flag as a symbol of nationhood and national unity. In Spence, we acknowledged that the government’s interest in preserving the flag’s special symbolic value “is directly related to expression in the context of activity” such as affixing a peace symbol to a flag. 418 U. S., at 414, n. 8. We are equally persuaded that this interest is related to expression in the case of Johnson’s burning of the flag. The State, apparently, is concerned that such conduct will lead people to believe either that the flag does not stand for nationhood and national unity, but instead reflects other, less positive concepts, or that the concepts reflected in the flag do not in fact exist., that is, that we do not enjoy unity as a Nation. These concerns blossom only when a person’s treatment of the flag communicates some message, and thus are related “to the suppression of free expression” within the meaning of O’Brien. We are thus outside of O’Brien’s test altogether.
H-i <
It remains to consider whether the State s interest m preserving the flag as a symbol of nationhood and national unity justifies Johnson’s conviction.
As in Spence, “[w]e are confronted with a case of prosecution for the expression of an idea through activity,” and “[a]c-cordingly, we must examine with particular care the interests advanced by [petitioner] to support its prosecution.” 418 U. S., at 411. Johnson was not, we add, prosecuted for the expression of just any idea; he was prosecuted for his expression of dissatisfaction with the policies of this country, expression situated at the core of our First Amendment values. See, e. g., Boos v. Barry, supra, at 318; Frisby v. Schultz, 487 U. S. 474, 479 (1988).
Moreover, Johnson was prosecuted because he knew that his politically charged expression would cause “serious offense.” If he had burned the flag as a means of disposing of it because it was dirty or torn, he would not have been convicted of flag desecration under this Texas law: federal law designates burning as the preferred means of disposing of a flag “when it is in such condition that it is no longer a fitting emblem for display,” 36 U. S. C. § 176(k), and Texas has no quarrel with this means of disposal. Brief for Petitioner 45. The Texas law is thus not aimed at protecting the physical integrity of the flag in all circumstances, but is designed instead to protect it only against impairments that would cause serious offense to others. Texas concedes as much: “Section 42.09(b) reaches only those severe acts of physical abuse of the flag carried out in a way likely to be offensive. The statute mandates intentional or knowing abuse, that is, the kind of mistreatment that is not innocent, but rather is intentionally designed to seriously offend other individuals.” Id., at 44.
Whether Johnson’s treatment of the flag violated Texas law thus depended on the likely communicative impact of his expressive conduct. Our decision in Boos v. Barry, supra, tells us that this restriction on Johnson’s expression is content based. In Boos, we considered the constitutionality of a law prohibiting “the display of any sign within 500 feet of a foreign embassy if that sign tends to bring that foreign government into ‘public odium’ or ‘public disrepute.’” Id., at 315. Rejecting the argument that the law was content neutral because it was justified by “our international law obligation to shield diplomats from speech that offends their dignity,” id., at 320, we held that “[t]he emotive impact of speech on its audience is not a ‘secondary effect’ ” unrelated to the content of the expression itself. Id., at 321 (plurality opinion); see also id., at 334 (Brennan, J., concurring in part and concurring in judgment).
According to the principles announced in Boos, Johnson’s political expression was restricted because of the content of the message he conveyed. We must therefore subject the State’s asserted interest in preserving the special symbolic character of the flag to “the most exacting scrutiny.” Boos v. Barry, supra, at 321.
Texas argues that its interest in preserving the flag as a symbol of nationhood and national unity survives this close analysis. Quoting extensively from the writings of this Court chronicling the flag’s historic and symbolic role in our society, the State emphasizes the “'special place’” reserved for the flag in our Nation. Brief for Petitioner 22, quoting Smith v. Goguen, 415 U. S., at 601 (Rehnquist, J., dissenting). The State’s argument is not that it has an interest simply in maintaining the flag as a symbol of something, no matter what it symbolizes; indeed, if that were the State’s position, it would be difficult to see how that interest is endangered by highly symbolic conduct such as Johnson’s. Rather, the State’s claim is that it has an interest in preserving the flag as a symbol of nationhood and national unity, a symbol with a determinate range of meanings. Brief for Petitioner 20-24. According to Texas, if one physically treats the flag in a way that would tend to cast doubt on either the idea that nationhood and national unity are the flag’s referents or that national unity actually exists, the message conveyed thereby is a harmful one and therefore may be prohibited.
If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. See, e. g., Hustler Magazine, Inc. v. Falwell, 485 U. S., at 55-56; City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 804 (1984); Bolger v. Youngs Drug Products Corp., 463 U. S. 60, 65, 72 (1983); Carey v. Brown, 447 U. S. 455, 462-463 (1980); FCC v. Pacifica Foundation, 438 U. S., at 745-746; Young v. American Mini Theatres, Inc., 427 U. S. 50, 63-65, 67-68 (1976) (plurality opinion); Buckley v. Valeo, 424 U. S. 1, 16-17 (1976); Grayned v. Rockford, 408 U. S. 104, 115 (1972); Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95 (1972); Bachellar v. Maryland, 397 U. S. 564, 567 (1970); O’Brien, 391 U. S., at 382; Brown v. Louisiana, 383 U. S., at 142-143; Stromberg v. California, 283 U. S., at 368-369.
We have not recognized an exception to this principle even where our flag has been involved. In Street v. New York, 394 U. S. 576 (1969), we held that a State may not criminally punish a person for uttering words critical of the flag. Rejecting the argument that the conviction could be sustained on the ground that Street had “failed to show the respect for our national symbol which may properly be demanded of every citizen,” we concluded that “the constitutionally guaranteed ‘freedom to be intellectually... diverse or even contrary,’ and the ‘right to differ as to things that touch the heart of the existing order,’ encompass the freedom to express publicly one’s opinions about our flag, including those opinions which are defiant or contemptuous.” Id., at 593, quoting Barnette, 319 U. S., at 642. Nor may the government, we have held, compel conduct that would evince respect for the flag. “To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual’s right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.” Id., at 634.
In holding in Barnette that the Constitution did not leave this course open to the government, Justice Jackson described one of our society’s defining principles in words deserving of their frequent repetition: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” Id., at 642. In Spence, we held that the same interest asserted by Texas here was insufficient to support a criminal conviction under a flag-misuse statute for the taping of a peace sign to an American flag. “Given the protected character of [Spence’s] expression and in light of the fact that no interest the State may have in preserving the physical integrity of a privately owned flag was significantly impaired on these facts,” we held, “the conviction must be invalidated.” 418 U. S., at 415. See also Goguen, supra, at 588 (White, J., concurring in judgment) (to convict person who had sewn a flag onto the seat of his pants for “contemptuous” treatment of the flag would be “[t]o convict not to protect the physical integrity or to protect against acts interfering with the proper use of the flag, but to punish for communicating ideas unacceptable to the controlling majority in the legislature”).
In short, nothing in our precedents suggests that a State may foster its own view of the flag by prohibiting expressive conduct relating to it. To bring its argument outside our precedents, Texas attempts to convince us that even if its interest in preserving the flag’s symbolic role does not allow it to prohibit words or some expressive conduct critical of the flag, it does permit it to forbid the outright destruction of the flag. The State’s argument cannot depend here on the distinction between written or spoken words and nonverbal conduct. That distinction, we have shown, is of no moment where the nonverbal conduct is expressive, as it is here, and where the regulation of that conduct is related to expression, as it is here. See supra, at 402-403. In addition, both Bar-nette and Spence involved expressive conduct, not only verbal communication, and both found that conduct protected.
Texas’ focus on the precise nature of Johnson’s expression, moreover, misses the point of our prior decisions: their enduring lesson, that the government may not prohibit expression simply because it disagrees with its message, is not dependent on the particular mode in which one chooses to express an idea. If we were to hold that a State may forbid flag burning wherever it is likely to endanger the flag’s symbolic role, but allow it wherever burning a flag promotes that role — as where, for example, a person ceremoniously burns a dirty flag — we would be saying that when it comes to impairing the flag’s physical integrity, the flag itself may be used as a symbol — as a substitute for the written or spoken word or a “short cut from mind to mind” — only in one direction. We would be permitting a State to “prescribe what shall be orthodox” by saying that one may burn the flag to convey one’s attitude toward it and its referents only if one does not endanger the flag’s representation of nationhood and national unity.
We never before have held that the Government may ensure that a symbol be used to express only one view of that symbol or its referents. Indeed, in Schacht v. United States, we invalidated a federal statute permitting an actor portraying a member of one of our Armed Forces to “‘wear the uniform of that armed force if the portrayal does not tend to discredit that armed force.’” 398 U. S., at 60, quoting 10 U. S. C. § 772(f). This proviso, we held, “which leaves Americans free to praise the war in Vietnam but can send persons like Schacht to prison for opposing it, cannot survive in a country which has the First Amendment.” Id., at 63.
We perceive no basis on which to hold that the principle underlying our decision in Schacht does not apply to this case. To conclude that the government may permit designated symbols to be used to communicate only a limited set of messages would be to enter territory having no discernible or defensible boundaries. Could the government, on this theory, prohibit the burning of state flags? Of copies of the Presidential seal? Of the Constitution? In evaluating these choices under the First Amendment, how would we decide which symbols were sufficiently special to warrant this unique status? To do so, we would be forced to consult our own political preferences, and impose them on the citizenry, in the very way that the First Amendment forbids us to do. See Carey v. Brown, 447 U. S., at 466-467.
There is, moreover, no indication — either in the text of the Constitution or in our cases interpreting it — that a separate juridical category exists for the American flag alone. Indeed, we would not be surprised to learn that the persons who framed our Constitution and wrote the Amendment that we now construe were not known for their reverence for the Union Jack. The First Amendment does not guarantee that other concepts virtually sacred to our Nation as a whole— such as the principle that discrimination on the basis of race is odious and destructive — will go unquestioned in the marketplace of ideas. See Brandenburg v. Ohio, 395 U. S. 444 (1969). We decline, therefore, to create for the flag an exception to the joust of principles protected by the First Amendment.
It is not the State’s ends, but its means, to which we object. It cannot be gainsaid that there is a special place reserved for the flag in this Nation, and thus we do not doubt that the government has a legitimate interest in making efforts to “presence] the national flag as an unalloyed symbol of our country.” Spence, 418 U. S., at 412. We reject the suggestion, urged at oral argument by counsel for Johnson, that the government lacks “any state interest whatsoever” in regulating the manner in which the flag may be displayed. Tr. of Oral Arg. 38. Congress has, for example, enacted precatory regulations describing the proper treatment of the flag, see 36 U. S. C. §§ 173-177, and we cast no doubt on the legitimacy of its interest in making such recommendations. To say that the government has an interest in encouraging proper treatment of the flag, however, is not to say that it may criminally punish a person for burning a flag as a means of political protest. “National unity as an end which officials may foster by persuasion and example is not in question. The problem is whether under our Constitution compulsion as here employed is a permissible means for its achievement.” Barnette, 319 U. S., at 640.
We are fortified in today’s conclusion by our conviction that forbidding criminal punishment for conduct such as Johnson’s will not endanger the special role played by our flag or the feelings it inspires. To paraphrase Justice Holmes, we submit that nobody can suppose that this one gesture of an unknown man will change our Nation’s attitude towards its flag. See Abrams v. United States, 250 U. S. 616, 628 (1919) (Holmes, J., dissenting). Indeed, Texas’ argument that the burning of an American flag “ ‘is an act having a high likelihood to cause a breach of the peace,’ ” Brief for Petitioner 31, quoting Sutherland v. DeWulf, 323 F. Supp. 740, 745 (SD Ill. 1971) (citation omitted), and its statute’s implicit assumption that physical mistreatment of the flag will lead to “serious offense,” tend to confirm that the flag’s special role is not in danger; if it were, no one would riot or take offense because a flag had been burned.
We are tempted to say, in fact, that the flag’s deservedly cherished place in our community will be strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of criticism such as Johnson’s is a sign and source of our strength. Indeed, one of the proudest images of our flag, the one immortalized in our own national anthem, is of the bombardment it survived at Fort McHenry. It is the Nation’s resilience, not its rigidity, that Texas sees reflected in the flag — and it is that resilience that we reassert today.
The way to preserve the flag’s special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong. “To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer:
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songer_genapel1
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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 is to determine the nature of the first listed appellant.
Abraham BENJAMINS, as Personal Representative of the Estate of Hilde Ben-jamins, Deceased, Plaintiff-Appellant, v. BRITISH EUROPEAN AIRWAYS, Hawker Siddeley Aviation, Ltd., and Hawker Siddeley Group, Ltd., Defendants-Appel-lees.
No. 111, Docket 77-7201.
United States Court of Appeals, Second Circuit.
Argued Oct. 21, 1977.
Decided March 6, 1978.
Van Graafeiland, Circuit Judge, filed dissenting opinion.
Ronald L. M. Goldman, Marina del Rey, Cal. (Ronald L. M. Goldman & Associates, Marina del Rey, Cal., on brief), for plaintiff-appellant.
George N. Tompkins, Jr., New York City (Condon & Forsyth, Ronald E. Pace and Michael J. Holland, New York City, on brief), for defendant-appellee British European Airways.
James J. Finnerty, Jr., New York City (Mendes & Mount, New York City, on brief), for defendant-appellee Hawker Siddeley Aviation, Ltd.
Before LUMBARD, FEINBERG and VAN GRAAFEILAND, Circuit Judges.
LUMBARD, Circuit Judge:
This appeal, arising out of the death of Hilde Benjamins in the air crash disaster at Staines, England, on June 18, 1972, once again presents us with the much-discussed question whether the Warsaw Convention creates a cause of action. The District Court for the Eastern District dismissed the complaint herein, believing itself bound by our prior decisions to answer that question in the negative. We reverse.
I
On June 18, 1972, a Trident 1 Jet Aircraft — designed and manufactured by Hawker Siddeley Aviation, Ltd. [“HSA”], and owned and operated by British European Airways [“BEA”] — took off for Brussels from London’s Heathrow Airport. Soon thereafter, the plane stalled and crashed into a field, killing all 112 passengers, including Hilde Benjamins. Hilde Benjamins was survived by her husband Abraham; both were Dutch citizens permanently residing in California. BEA and HSA are British corporations with their principal places of business in the United Kingdom. The ticket on which Hilde Benjamins was travelling had been purchased in Los Ange-les, and clearly provided “international transportation” within the meaning of Article 1 of the Convention. Therefore, since the United States and the United Kingdom are both High Contracting Parties, the Convention is applicable to this proceeding.
This suit for wrongful death and baggage loss was brought in April of 1974 in the Eastern District of New York by Abraham Benjamins, as representative of his widow’s estate, on behalf of himself and the children of the marriage. Benjamins’ action was consolidated with a number of others arising out of the same incident, and assigned to Judge Weinstein. In re Air Crash Disaster at Staines, England, MDL No. 147 (J.P. M.D.L.). The major allegations in the complaint invoked Articles 17 and 18 of the Convention. These read, in relevant part, as follows:
Article 17. The carrier shall be liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking. Article 18(1). The carrier shall be liable for damage sustained in the event of the destruction or loss of, or of damage to, any checked baggage or any goods, if the occurrence which caused the damage so sustained took place during the transportation by air.
Dismissed once for lack of subject matter jurisdiction — only diversity was originally alleged — the complaint was amended to invoke 28 U.S.C. §§ 1331 and 1350 as well. After both sides had submitted briefs, Judge Weinstein ruled that this suit did not “arise” under a treaty of the United States, as § 1331 requires; he relied on Second Circuit precedent indicating that the Convention does not create a cause of action, but only establishes conditions for a cause of action created by domestic law. This appeal followed.
II
The first question we address is whether any court in this country has jurisdiction in the “international or treaty sense.” Smith v. Canadian Pacific Airways, Ltd., 452 F.2d 798, 800 (2d Cir. 1971). Only then may we consider “the power of a particular United States court, under federal statutes and practice, to hear a Warsaw Convention case — jurisdiction in the domestic law sense.” Id.
Jurisdiction in the treaty sense is determined by Article 28(1) of the Convention, which provides that
[a]n action for damages must be brought, at the option of the plaintiff, in the territory of one of the High Contracting Parties, either before the court of the domicile of the carrier or of his principal place of business, or where he has a place of business through which the contract has been made, or before the court at the place of destination.
The third alternative of Article 28(1) is satisfied in this case: the ticket which constituted the contract of carriage was purchased in Los Angeles, through BEA. The fourth alternative appears also to fit, as decedent’s round-trip ticket provided for an ultimate destination in the United States.
Nonetheless, courts in the United States, and particularly the federal courts, are not the only possible forum for Abraham Benjamins. The courts of England are open to his suit — permitted by the first and second alternatives of Article 28(1) — as are the state courts of California. Plaintiff’s burden is not met by a showing that Article 28(1) permits some court of this country to hear his complaint; he must further show that some jurisdictional statute permits a federal court to do so.
Ill
The two bases for federal jurisdiction pleaded in Benjamins’ amended complaint are the Alien Tort Claims Act, 28 U.S.C. § 1350, and a general federal question “arising under” a treaty.
The Alien Tort Claims Act does not provide a basis for jurisdiction over this action. Without having to discuss the question of whether the wrongful death action against a carrier is essentially one in tort or in contract, we are satisfied that Benjamins’ complaint alleges a violation of neither the law of nations nor any treaty of the United States.
The Convention itself does not seek to outlaw accidents, crashes and other events causing death, injury or property loss. Rather, it sets forth the terms under which victims of such events may recover their damages. Airlines do not “violate” the Convention when they crash — even if their negligence was “wilful” — but only when they fail to compensate victims who are adjudged to be appropriate recipients of damages. The fact that a claimant must bring an action to recover does not constitute a violation by the carrier of its obligations.
Nor do the acts alleged violate the law of nations under the standards we set in IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975) : “a violation ... of those standards, rules or customs (a) affecting the relationship between states or between an individual and a foreign state, and (b) used by those states for their common good and/or in dealings inter se.” See Dreyfus v. Von Finck, 534 F.2d 24, 30-31 (2d Cir. 1976) . This law does not include a prohibition of air crashes.
IV
Accordingly, we must determine whether any of the causes of action pleaded by Benjamins “arise under” the Warsaw Convention. It is true that in the past we have said that the Warsaw Convention does not create a cause of action. We believe, however, that a re-examination of the question requires a different answer.
A
At the time the United States adhered to the Convention, it seemed obvious to all that the Convention created causes of action for wrongful death or personal injury (Article 17), and for damage to baggage (Article 18). One court went so far as to say, “If the Convention did not create a cause of action in Art. 17, it is difficult to understand just what Art. 17 did do.” Salamon v. Koninklijke Luchtvaart Maatschappij, N.V., 107 N.Y.S.2d 768, 773 (Sup. Ct.1951), aff’d mem., 281 App.Div. 965, 120 N.Y.S.2d 917 (1st Dept. 1953).
The view that the Convention does not create a cause of action is, in large part, attributable to two cases we decided in the 1950s, Komlos v. Compagnie Nationale Air France, 209 F.2d 436 (2d Cir. 1953), rev’g on other grounds, 111 F.Supp. 393 (S.D.N.Y. 1952), cert. denied, 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954), and Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957):
The Second Circuit had spoken twice, the Supreme Court had denied certiorari, and in all subsequent American Warsaw cases it was either assumed or decided that the claim must be founded on some law other than the Convention itself.
Lowenfeld & Mendelsohn, The United States and the Warsaw Convention, 80 Harv.L.Rev. 497, 519 (1967).
The analysis on which this structure of holding rests is to be found in Judge Lei-bell’s opinion for the district court in Kom-los. In determining whether a cause of action had been assigned to an insurer or remained the property of an estate, Judge Leibell held that the action envisioned by Article 17 was one created by domestic law, except in cases where the forum provided no analogous action. Ill F.Supp. at 401-02.
Judge Leibell relied heavily on a letter sent by Secretary of State Cordell Hull to President Roosevelt on March 31, 1934, recommending adherence to the Convention. In the course of a lengthy discussion of the benefits of adherence, Hull wrote:
The effect of article 17 (ch. Ill) of the Convention is to create a presumption of liability against the aerial carrier on the mere happening of an accident occasioning injury or death of a passenger subject to certain defenses allowed under the Convention to the aerial carrier.
[1934] U.S.Av.Rep. 240, 243. This was seen by Judge Leibell as clear evidence that the Convention created only presumptions, not new causes of action.
In reversing Judge Leibell on another issue, we did not refer to the portion of his opinion discussed above, or, indeed, even mention the Warsaw Convention. 209 F.2d at 438-40. Nonetheless, in Noel, we followed our opinion in Komios, which, we said, had “impliedly agreed” with Judge Leibell. 247 F.2d at 679. Though most of our opinion in Noel was devoted to disapproving Judge Leibell’s suggestion that Article 17 might create a cause of action for wrongful death where domestic law did not, it is apparent that — however founded— Noel, as the law of this circuit, stands for the proposition that the Convention does not create a cause of action. See, e. g., Husserl v. Swiss Air Transport Co., 388 F.Supp. 1238, 1251-52 (S.D.N.Y.1975).
Recently, an inconsistency has developed between this rule and another line of Warsaw cases we have decided. For example, in Reed v. Wiser, 555 F.2d 1079 (2d Cir.), cert. denied, 434 U.S. 922, 98 S.Ct. 399, 54 L.Ed.2d 279 (1977), we indicated — without addressing the question in the instant case — that “the Convention was intended to act as an international uniform law,” id. at 1083, and that the substantive law of the Convention was binding on the forum, id. at 1092. The time has come to examine the question whether our view of the Convention as an internationally binding body of uniform air law permits us any longer to deny that a cause of action may be founded on the Convention itself, rather than on any domestic law.
B
1. The minutes and documents of the meetings, held in 1925 and 1929, which led to the adoption of the Convention do not specifically indicate whether the parties contemplated that an action for damages under the Convention would arise under the terms of the treaty or those of domestic law. What is made quite clear is the extent to which the delegates were concerned with creating a uniform law to govern air crashes, with absolutely no reference to any national law (except for the questions of standing to sue for wrongful death, effects of contributory negligence and procedural matters; see Articles 21, 24(2), 28(2)).
The delegates were concerned lest major air crash cases be brought before courts of nations whose courts were not (according to current Western standards) well organized, nor whose substantive law (according to the same standards) progressive. To avoid the “prospect of a junglelike chaos,” Reed v. Wiser, supra, 555 F.2d at 1092, the Convention laid down rules that were to be universally applicable. While it is not literally inconsistent with this universal applicability to insist that a would-be plaintiff first find an appropriate cause of action in the domestic law of a signatory authorized by Article 28 to hear his claim, it is inconsistent with its spirit. This inconsistency is an argument against the rule of Noel and Komlos, for the Convention is to be so construed as to further its purposes to the greatest extent possible, even if that entails rejecting a literal reading. Eck v. United Arab Airlines, Inc., 360 F.2d 804, 812 (2d Cir. 1966).
2. Other articles of the Convention throw some light on the question whether Articles 17 and 18 create causes of action. Article 30(3) provides that in the case of transportation by several carriers constituting one undivided transportation,
[a]s regards baggage or goods, the passenger or consignor shall have a right of action against the first carrier, and the passenger or consignee who is entitled to delivery shall have a right of action against the last carrier, and further, each may take action against the carrier who performed the transportation during which the destruction, loss, damage, or delay took place. .
The most reasonable interpretation of this section is that Articles 18 and 30(3) create a cause of action against the appropriate carrier when more than one carrier is involved. See Seth v. British Overseas Airways Corp., 329 F.2d 302, 305 (1st Cir.), cert. denied, 379 U.S. 858, 85 S.Ct. 114, 13 L.Ed.2d 61 (1964): “Thus the Convention not only imposes liability on an air carrier for the loss of checked baggage but also gives a passenger whose baggage is lost a right of action to enforce that liability. Seth’s action, therefore, seems clearly to be one arising under a treaty of the United States.” There is no reason to believe that the Convention’s effect is any different when only one carrier is involved.
Article 24 has been cited by proponents of both views of the Convention. In the French version — the only official version— the Article reads:
(1) Dans les cas prévus aux articles 18 et 19 toute action en responsabilité, á quelque titre que ce soit, ne peut étre exercée que dans les conditions et limites prévues par la présente Convention.
(2) Dans les cas prévus á l’article 17, s’ap-pliquent également les dispositions de l’alinéa précédent .
The unofficial translation reads:
(1) In the cases covered by articles 18 and 19 any action for damages, however founded, can only be brought subject to the conditions and limits set out in this convention.
(2) In the cases covered by article 17 the provisions of the preceding paragraph shall also apply. .
The crucial phrases, of course, are “however founded” (“a quelque titre que ce soit”), and “conditions” (“conditions”). There is no internal evidence to indicate whether “however founded” was intended to refer to a number of possible domestic law sources or to a number of possible factual bases for the envisioned action.
As to “conditions,” that term in English does imply that the source of the action must be sought elsewhere than the Convention, which supplies only conditions and limits. Nonetheless, there is some evidence for the view that the French has not been so translated here as to provide the best interpretation of the delegates’ meaning, and that “basis” or “terms” would be a closer translation in this context of “conditions.” Calkins, supra, 26 J. Air L. & Comm, at 225-26. The arguments as to Article 24 are not conclusive either way.
3. More compelling is the evidence of how other signatories of the Convention have interpreted its provisions. The clearest picture is found in other common-law jurisdictions. In the statute enacting the original 1929 Convention in the United Kingdom, it was provided that
[a]ny liability imposed by Article seventeen of the said [Warsaw Convention] on a carrier in respect of the death of a passenger shall be in substitution for any liability of the carrier in respect of the death of that passenger either under any statute or at common law . ...
Carriage by Air Act, 1932, 22 & 23 Geo. 5, c. 36, § 1(4). When the Convention was reenacted as amended at the Hague in 1955, Carriage by Air Act, 1962, 9 & 10 Eliz. 2, c. 27, this language was omitted, but there is no indication that any change of substantive law was intended. No case law since 1962 has demonstrated that the source of carrier liability lies anywhere but in the Convention. See also Carriage by Air Act, 1939, 3 Geo. 6, c. 12 (Canada).
V
The fact that a proposition of law has been accepted for some twenty years is evidently a sign that circumspection is needed in seeking to overturn that proposition. We recognize that our holdings in Komlos and Noel have become the rule not of this circuit alone, but of others as well. See, e. g., Maugnie v. Compagnie Nationale Air France, 549 F.2d 1256, 1258 (9th Cir.), cert. denied, 431 U.S. 974, 97 S.Ct. 2939, 53 L.Ed.2d 1072 (1977). Nonetheless, we are convinced that — in light of both the paucity of analysis that accompanied the creation of the rule and the strong arguments in favor of the opposite rule — the Komlos/Noel rule ought no longer to be followed.
We do not believe that the passing remark of Secretary Hull in a lengthy letter was intended to state the total of what Article 17 might provide; we do not see what there was about our decision in Kom-los that constituted implicit agreement with Judge Leibell, and compelled the result in Noel; we do not find technical and disputable interpretations of the language of other articles of the Convention conclusive in determining this important question of policy.
We do, on the other hand, believe that the desirability of uniformity in international air law can best be recognized by holding that the Convention, otherwise universally applicable, is also the universal source of a right of action. We do see that uniformity of development can better be achieved by making federal as well as state courts accessible to Convention litigation. We do find the opinions of our sister signatories to be entitled to considerable weight.
One factor which makes federal jurisdiction peculiarly appropriate in large air crash cases was not present at. the time Komlos and Noel were decided. Section 1407 of 28 U.S.C., enacted by Pub.L.No.90-296, 90th Cong., 2d Sess., 82 Stat. 109 (April 29,1968), created the Judicial Panel on Mul-tidistrict Litigation, and authorized the creation of the procedures found in the Manual for Complex Litigation. These procedures, such as consolidation and assignment to one expert judge, can — by reducing expenses and expediting dispositions — benefit all parties to air disaster actions, in which the plaintiff/victims may come from many different parts of the country. Obviously, these procedures are unavailable among the courts of the several states.
Finally, we do not anticipate any large increase in the volume of federal litigation as a result of our holding. Most cases will fall under 28 U.S.C. § 1332, as they do today; only when plaintiffs and defendants are all aliens, but the United States is a nation with treaty jurisdiction, will it be necessary to invoke 28 U.S.C. § 1331.
VI
Accordingly, we reverse Judge Wein-stein’s order of dismissal. We leave it to his discretion to determine, in a manner consistent with our opinion, which of Benja-mins’ causes of action he may decide and which, if any, he may not; in particular, we leave to him the question whether to take-pendent jurisdiction over the claims against HSA.
Reversed and remanded for further proceedings consistent with our opinion.
. Convention for the Unification of Certain Rules Relating to International Transportation by Air, 49 Stat. 3000, T.S. No. 876 (concluded Oct. 12, 1929; adhered to by United States June 27, 1934) [hereinafter referred to as “Convention”; “Article(s) ......” means Article(s) ......of the Convention].
. Judge Weinstein cited Husserl v. Swiss Air Transport Co., 485 F.2d 1240 (2d Cir. 1973), aff’g 351 F.Supp. 702 (S.D.N.Y.1972); Noel v. Linea Aeropostal Venezolana, 247 F.2d 677 (2d Cir.), cert. denied, 355 U.S. 907, 78 S.Ct. 334, 2 L.Ed.2d 262 (1957); and Komlos v. Compagnie Nationale Air France, 111 F.Supp. 393 (S.D.N. Y.1952), rev’d on other grounds, 209 F.2d 436 (2d Cir. 1953), cert. denied, 348 U.S. 820, 75 S.Ct. 31, 99 L.Ed. 646 (1954). He indicated, however, that he thought the matter not free from doubt, and commended the question to our careful attention.
. Jurisdiction over HSA is alleged under principles of pendent jurisdiction.
. Personal jurisdiction is not an issue in this case, as each defendant has submitted to the in personam jurisdiction of the court.
. Smith v. Canadian Pacific Airways, Ltd., supra, indicates that venue is no concern of Article 28(1), 452 F.2d at 800-01. It answers only the question “whether suit may be brought at all in the courts of the United States,” whether state or federal and regardless of location. Id. at 800 n. 3.
. The District Courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.
. But see Wyman v. Pan American Airways, 181 Misc. 963, 43 N.Y.S.2d 420 (Sup.Ct.1943), aff’d, 267 App.Div. 947, 48 N.Y.S.2d 459 (1st Dept.), aff'd, 293 N.Y. 878, 59 N.E.2d 785, cert. denied, 324 U.S. 882, 65 S.Ct. 1029, 89 L.Ed. 1432 (1944).
. Some commentators, at least, have attributed this to its being taken for granted that the Convention itself supplied the cause of action. E. g., Lowenfeld & Mendelsohn, supra, 80 Harv. L.Rev. at 517. A stronger statement comes from the Chairman of the United States Delegation to the Hague Conference to Amend the Warsaw Convention, G. Nathan Calkins:
[T]he author is convinced that the draftsmen of the Convention intended to create a right-of-action based on the contract of carriage; that the draftsmen did in fact carry this intention out in the Convention as signed; that it is self-executing; and therefore the supreme law of the land today.
Calkins, The Cause of Action Under the Warsaw Convention, 26 J. Air L. & Comm. 217, 218 (1959).
. We note that, after Noel, not even the total lack of an appropriate cause of action at domestic law would permit an action to be founded on the Convention itself.
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:
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songer_civproc1
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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 federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited.
UNITED STATES of America, Appellee, v. John MUSACCHIA and Joseph Gambino, Defendants-Appellants.
Nos. 967, 968, Dockets 88-1491, 88-1495.
United States Court of Appeals, Second Circuit.
Argued March 6, 1989.
Decided March 21, 1990.
Paula Schwartz Frome (James 0. Druker, Kase & Druker, Garden City, N.Y., of counsel), for defendant-appellant John Mu-sacchia.
Charles L. Weintraub (John L. Pollok, Hoffman & Pollok, New York City, of counsel), for defendant-appellant Joseph Gambino.
Alan Hechtkopf, Tax Div., Dept, of Justice (James I.K. Knapp, Acting Asst. Atty. Gen., Shirley D. Peterson, Asst. Atty. Gen., Washington, D.C., Robert E. Lindsay, Atty., Tax Div., Dept, of Justice, Washington, D.C., and Andrew J. Maloney, U.S. Atty., E.D.N.Y., of counsel), for appellee U.S.
Before CARDAMONE and PRATT, Circuit Judges, and LASKER, District Judge.
Honorable Morris E. Lasker, United States District Judge for the Southern District of New York, sitting by designation.
LASKER, District Judge:
John Musacchia and Joseph Gambino appeal their convictions on one count of conspiracy to defraud the United States by willfully failing to pay gasoline excise taxes in violation of 18 U.S.C. § 371 (1988) and 26 U.S.C. §§ 7201, 7202 and 7206(2) (1982). Musacchia appeals his conviction on six additional counts of aiding and abetting evasion of such taxes.
Appellants contend that it was reversible error for the prosecution to bolster the testimony of three witnesses by eliciting testimony on direct examination that their cooperation agreements with the government required them to tell the truth. Mu-sacchia also asserts that the statute of limitations bars his prosecution on the six counts charging aiding and abetting of substantive tax evasion offenses under §§ 7201 and 7202. In supplemental briefing following the Supreme Court’s holding in Gomez v. United States, — U.S. -, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989) (holding jury selection by magistrates not authorized under the Federal Magistrates Act), appellants urge reversal because they did not consent to jury selection by a magistrate. For the reasons discussed below, we conclude that the appeals are without merit and affirm.
BACKGROUND
Musacchia owned and operated O.K. Petroleum (“O.K.”), a corporation that sold gasoline and heating oil through retail and wholesale outlets in New York State. During the period at issue federal law imposed an excise tax of nine cents on gasoline sold by producers and certain wholesale distributors. In December 1982, O.K. applied for a Registration for Tax-Free Transactions (“Form 637”) from the Internal Revenue Service (“IRS”), which would exempt the company from the excise tax. O.K.’s application was never approved. Thereafter O.K. made large purchases of gasoline from two distributors but refused to pay the distributors the money due for federal excise taxes, representing first that the purchases were tax-exempt because O.K. was about to receive, and then that it had received, a Form 637. O.K. also purchased gasoline from General Oil Distributors, Inc. (“General Oil”) in 1983 and failed to pay $270,000 in excise taxes by representing that it held a valid Form 637. When General Oil discovered that O.K. lacked a Form 637 it barred all tax-exempt sales to O.K.
Musacchia subsequently devised a “daisy chain scheme” to purchase untaxed gasoline. Under this scheme Rappaport Fuel Company (“Rappaport”), which held a valid Form 637, would purchase tax-exempt gasoline from various suppliers and then create fictitious invoices for sales to transient front companies that were not controlled by appellants, but which they formed for the specific purpose of evading excise taxes. These companies had valid Forms 637 and operated only long enough to allow Rappaport to document the fictitious sales. Rappaport would in fact distribute the gasoline to Musacchia. Two companies that Musacchia controlled, AKA Petroleum (“AKA”) and CWM Petroleum (“CWM”) paid the distributors for the gasoline purchased by Rappaport. Through this scheme Musacchia purchased more than 8 million gallons of gasoline on which he failed to pay taxes of more than $777,000.
Gambino assisted Musacchia in forming AKA and concealing Musacchia’s involvement in the company. Gambino solicited Joseph J. Ribando, Gambino’s brother-in-law, to sign on as president of AKA and Luis Cuomo to act as Treasurer. Ribando opened a bank account and mail drop for AKA and signed checks at Gambino’s request. He had virtually no other involvement with the company. Cuomo, the treasurer, had even less involvement than Ri-bando. Both ultimately resigned. Gambi-no also helped Musacchia to operate the front companies and to persuade Herman DeJonge, the owner of Rappaport, to make untaxed sales to Musacchia.
I. BOLSTERING
During direct examination of Arthur Williams (a principal in CWM), Cuomo, Ri-bando and DeJonge, the government elicited testimony that cooperation agreements between the witnesses and the government required the witnesses to tell the truth and provided that if they lied on the witness stand they would be subject to prosecution for perjury. Appellants first objected, without stating grounds, to the prosecutor’s questions to Ribando and Williams about these “truth-telling” provisions but these objections were overruled by the judge. After the judge overruled Musacc-hia’s objection to the prosecutor’s question to DeJonge about the requirement in his agreement that he testify truthfully, defense counsel moved for a mistrial on the ground that the government had improperly bolstered the testimony of Williams, Cuomo and Siegal prior to any defense attack on their credibility. The judge denied the motion but gave the following curative instruction to the jury:
The government has brought out testimony from several witnesses that I’ve decided should not have been brought out concerning the possibility of being prosecuted for testifying falsely. So the testimony concerning testifying falsely, I am instructing you to disregard those statements.
Appellants now claim that, despite this curative instruction, the government’s deliberate and improper questioning of Williams, Cuomo and Ribando about the truth-telling provisions of their agreements and the court’s failure to sustain appellants’ timely objections constitute reversible error. The government concedes that the defense did not attack the credibility of Ribando, Cuomo and Williams before they testified but argues that even if subject to review, the error alleged by appellants was harmless because: 1) the judge gave a curative jury instruction; 2) defense counsel conceded during their argument for a mistrial that the entire testimony of Ribando and Williams was truthful, and therefore any bolstering was not prejudicial; and 3) Williams’ statement was rendered harmless by a subsequent attack on his credibility by Musacchia’s counsel and by the peripheral nature of his testimony.
The government argues at the outset that appellants’ claim of error resulting from the admission of the cooperation agreement testimony is reversible only if it was plain error, because appellants raised only general objections to the testimony at trial. Appellants reply that their objections were “apparent from the context” under Fed.R.Evid. 103(a)(1), which states that a specific ground for objection need be raised only “if the specific ground was not apparent from the context.” Based on a review of the trial transcript, it is clear that appellants’ objections were apparent from the context. Defense counsel specifically objected to questions about the truth-telling provisions of the agreements and not to the testimony that the cooperation agreements were entered into by the witnesses. Accordingly, the objections were preserved for review.
This court has consistently held that:
Because of the bolstering potential of cooperation agreements... we have permitted such agreements to be admitted in their entirety only after the credibility of the witness has been attacked_ [Bolstering aspects [of cooperation agreements] such as promises to testify truthfully or penalties for failure to do so may only be developed to rehabilitate the witness after a defense attack on credibility.
United States v. Cosentino, 844 F.2d 30, 33 (2d Cir.), cert. denied, — U.S. -, 109 S.Ct. 303, 102 L.Ed.2d 322 (1988) (footnote and citations omitted); see United States v. Jones, 763 F.2d 518, 522 (2d Cir.), cert. denied, 474 U.S. 981, 106 S.Ct. 386, 88 L.Ed.2d 339 (1985). However, in United States v. Arroyo-Angulo, 580 F.2d 1137, 1146-47 (2d Cir.), cert. denied, 439 U.S. 913, 99 S.Ct. 285, 58 L.Ed.2d 260 (1978), we held that because defense counsel challenged the credibility of a government witness in the opening statement and later in cross-examination and during summation, such challenge was inevitable, and rendered harmless the error in admitting the witness’s cooperation agreement into evidence during direct examination.
The government concedes that it was error to question the witnesses about the truth-telling provisions prior to defense challenges to credibility but contends that such error was harmless. Appellants argue that because the prosecutor intentionally bolstered the testimony of its witnesses the error cannot be deemed harmless under United States v. Borello, 766 F.2d 46, 56 (2d Cir.1985), in which the court held that the admission of and reading from the truth-telling portions of a cooperation agreement on direct examination were not harmless error even though the defense subsequently challenged part of Borello’s testimony. The Borello court did not find it necessary to engage in harmless error analysis, id. at 58, stating:
[W]e have previously suggested that an Arroyo-Angulo error is harmless if the defendant subsequently attacks the witness’s credibility. [United States v. Barnes, 604 F.2d 121, 151 (2d Cir.1979).] The error, however, cannot always be harmless.... [W]here we have spelled out in a series of cases the procedure for introducing cooperation agreements... [f]or us to disapprove of the... bolstering of the witness’s testimony and then to declare it harmless error would make our remarks in the previous cases purely “ceremonial.” The error cannot be deemed harmless.
Id. at 57-58. Appellants argue that because the prosecutor in this case deliberately questioned the witnesses regarding the truth-telling provisions of the agreements knowing such questioning was improper under the case law of this Circuit, the error in this case cannot be harmless and no harmless error analysis is required under Borello. As evidence of the intentional nature of the error appellants note that, during argument in the robing room on Musacchia’s motion for a mistrial, a member of the prosecution team offered to withdraw the questions about the truth-telling provisions of DeJonge’s agreement.
We disagree with appellants’ assertion that the prosecutor intentionally violated the rule against questioning the witnesses about truth-telling provisions of their agreements on direct examination prior to any defense attack on credibility. Indeed, the government contended during the argument on Musacchia’s motion for a mistrial, that it construed Musacchia’s counsel’s opening statement challenge to DeJonge’s credibility as an attack on the credibility of all witnesses, permitting the challenged questions. By contrast, in Borello, defense counsel did not attack the credibility of the cooperating prosecution witness during the opening statement, leading the court to conclude that the prosecution had intentionally violated the law. Moreover, Borello did not establish a per se rule that such errors can never be deemed harmless but rather that they cannot always be harmless. We conclude that the government had a good faith basis for asking the challenged questions. Accordingly, Borel-lo does not bar an examination of the government’s claims that the error was harmless.
The government contends that, because defense counsel argued during the trial that Ribando and Cuomo were telling the truth, any bolstering of their testimony was irrelevant to the outcome of the trial. During argument on the mistrial motion, Musacchia’s counsel stated:
In fact the defense has been that Williams, Cuomo and Ribando are all telling the truth but that we have an explanation for why they were used in this fashion. Their credibility was not attacked, and at least two of them I didn’t ask questions of.... They weren’t attacked or questioned in any fashion, and as a matter of fact as I’ve stated we adopt their testimony.
Based on this statement the government asserts that the defense conceded the truthfulness of Cuomo’s and Ribando’s testimony and, accordingly, there was no. significant chance that the outcome of the trial was affected by the error. Moreover, according to the government, counsel for Musacchia subsequently attacked Williams’ credibility by arguing in summation that Williams had “lied,” thereby rendering his earlier testimony about the truth-telling portions of the agreement admissible under Arroyo-Angulo.
Appellants assert that accepting the government’s argument — that the error is harmless because Williams’ credibility was challenged and Ribando and Cuomo’s testimony was not challenged — is tantamount to holding that such an error can never be harmless, contrary to the holding in Borel-lo.
However, appellants have not specified how they were prejudiced by the error. Appellants do not dispute that Williams’ testimony was peripheral. Their admission during trial that their strategy involved characterizing the testimony of Cuo-mo and Ribando as truthful lessens the effect of the error with respect to those witnesses. Most importantly, Judge Wex-ler gave a clear curative instruction to the jury not to consider the challenged testimony regarding the truth-telling portions of the cooperation agreements. Given the good faith belief by the prosecutor that the credibility of all the witnesses had been put into question by Musacchia’s opening statement and for the reasons discussed above, we conclude that the admission of testimony regarding the truth-telling requirements of the cooperation agreements on direct examination was harmless error.
II. APPLICABLE STATUTES OF LIMITATION
Musacchia contends that the applicable statutes of limitation bar his prosecution and subsequent conviction for the substantive crimes charged in counts 2 through 7 of the indictment. The indictment in this case was filed nearly four years after the date of the last act relating to counts 2 through 7. Musacchia asserts that the applicable statute of limitations for counts 2 through 7 is three years; the district court held that the applicable limitations period was six years. 696 F.Supp. 1548, 1550 (E.D.N.Y.1988).
The statute of limitations for criminal prosecutions arising under the internal revenue laws is found in 26 U.S.C. § 6531 (1982), which states in relevant part:
No person shall be prosecuted, tried, or punished for any of the various offenses arising under the internal revenue laws unless the indictment is found or the information instituted within 3 years next after the commission of the offense, except that a period of limitation shall be 6 years—
(1) for offenses involving the defrauding or attempting to defraud the United States or any agency thereof, whether by conspiracy or not, and in any manner;
(2) for the offense of willfully attempting in any manner to evade or defeat any tax or the payment thereof;
(3) for the offense of willfully aiding or assisting in, or procuring, counseling, or advising, the preparation or presentation under, or in connection with any matter arising under, the internal revenue laws, of a false or fraudulent return, affidavit, claim, or document (whether or not such falsity or fraud is with the knowledge or consent of the person authorized or required to present such return, affidavit, claim, or document).
The numbered sections above describe offenses carrying a special six-year limitations period rather than the general three-year statute of limitations for internal revenue offenses. Musacchia claims that because § 6531(3) is the only internal revenue offense carrying a six-year statute of limitations which uses the term “aiding, or assisting,” the aiding and abetting of all other substantive internal revenue offenses must carry the general three-year statute of limitation. Accordingly, he argues, counts 2, 4 and 5 of the indictment, under which he was convicted of aiding and abetting violations of 26 U.S.C. §§ 7201 and 7202, must be dismissed as untimely.
In support of this argument, Musacchia notes that other specifically enumerated exceptions to the general three-year statute of limitation explicitly refer to specific offenses under the code by section number. For example, 26 U.S.C. § 6531(7) provides that one of the exceptions is “for offenses described in section 7214(a),” which relates to intimidation of officers and employees of the United States. Musacchia asserts that if Congress had intended, as the government argues, to include a particular substantive offense (in this case § 7202 or § 7201) among those covered by § 6531(3) it could have done so by reference to that offense; because it did not do so with respect to the offense at issue the six-year statute of limitations applies only to the offense of aiding and abetting the filing of a false return and not to aiding and abetting of the offenses defined in 26 U.S.C. §§ 7201 and 7202 (counts 2, 4 and 5).
In United States v. Campbell, 426 F.2d 547, 553 (2d Cir.1970), this court held that the applicable statute of limitations for the offense of aiding and abetting under 18 U.S.C. § 2 is the statute for the substantive offense charged. The court observed:
18 U.S.C. § 2 does not define a crime; rather it makes punishable as a principal one who aids or abets the commission of a substantive crime.... Clearly one can violate [26 U.S.C.] § 7214(a) as an aider and abettor, and the offense, not the persons involved, determines the applicability of the six-year period of limitation.
Id. Musacchia fails to address Campbell but its analysis controls in this case. Accordingly, the statute of limitations for the substantive counts charged in the indictment apply in this case. Counts 2, 4, and 6 charge aiding and abetting violations under 26 U.S.C. § 7201, which carries a six-year limitations period as explicitly provided in 26 U.S.C. § 6531(2). It follows that the statute of limitations does not bar prosecution of these counts.
Counts 3, 5, and 7 charge aiding and abetting under 26 U.S.C. § 7202 — willful failure to account for and pay over gasoline excise taxes. Musacchia argues for the first time on appeal that § 7202 carries a three-year rather than a six-year statute of limitations. Section 6531(4) mandates a six-year statute of limitations “for the offense of willfully failing to pay any tax.” In United States v. Porth, 426 F.2d 519, 521-22 (10th Cir.), cert. denied, 400 U.S. 824, 91 S.Ct. 47, 27 L.Ed.2d 53 (1970), the court held, without analysis, that § 7202 falls within the six-year statute of limitations exception of § 6531(4). Musacchia relies on a more recent district court decision which held to the contrary, United States v. Block, 497 F.Supp. 629 (N.D.Ga.), aff'd, 660 F.2d 1086 (5th Cir.1980). Block held that the language of § 6531(4) does not track the language of § 7202:
It seems unlikely to the Court that Congress would have used the language of so many of the § 7201 et seq. code sections when drafting the subsections of § 6531 but omit use of the key words of § 7202 if it had intended to make failure to “pay over” third party taxes subject to the six-year statute of limitations.
497 F.Supp. at 632. A second factor in the Block court's determination was that
[Section] 6531(4) is directed at “the offense of willfully failing to pay any tax....” (emphasis added), not a class of offenses. It is quite clear that failure to “pay over” third party taxes [under § 7202] is substantively different from failure to pay taxes. See Slodov v. United States, 436 U.S. 238, 248-50, 98 S.Ct. 1778, 1785-1787, 56 L.Ed.2d 251 (1978).
Id. (footnote omitted).
The Block court’s analysis is not convincing. Although § 6531(4) does not track the language of § 7202 precisely, in the Supreme Court’s decision in Slodov v. United States, 436 U.S. 238, 249, 98 S.Ct. 1778, 1786, 56 L.Ed.2d 251 (1978), the terms “pay” and “pay over” were used interchangeably. In Slodov, the Court interpreted 26 U.S.C. § 6672, which applies to “[a]ny person required to collect, truthfully account for, and pay over any tax,” as applying “only to failure to pay taxes.... ” 436 U.S. at 249, 98 S.Ct. at 1786. Although the Court was analyzing a different provision of the code — the significance of the word “any” modifying the word “person” under § 6672 — and did not focus on the distinction argued by appellants in this case, it is still significant that the Court used the terms “pay over” and “pay” synonymously.
The government persuasively argues that it would be inconsistent for Congress to have prescribed a six-year limitation period for the misdemeanor offense defined in 26 U.S.C. § 7203 (failure to file a return or pay a tax) while providing only a three-year limitation period for the felony offense defined in § 7202. Moreover, the language of § 6531(4) — applying the six-year statute of limitations to “the offense of willfully failing to pay any tax, or make any return... at the time or times required by law or regulations” — suggests that it applies to any of several sections of the Code that define such an offense. For these reasons we find the reasoning of Block unpersuasive and conclude that a six-year statute of limitations applies to the offense defined by 26 U.S.C. § 7202 and thus to counts 3, 5 and 7 in the indictment. Accordingly, Musacchia’s prosecution and conviction were not barred by the applicable statutes of limitation.
CARDAMONE, Circuit Judge:
We concur in our colleague Judge Lasker’s thorough discussion of Part I (Bolstering) and Part II (Statute of Limitations), which concludes that nothing occurred during the trial which would warrant reversal of Musacchia’s and Gambino’s convictions on the merits.
III. JURY SELECTION BY A MAGISTRATE
Following oral argument of this appeal on March 6, 1989, we granted a motion on August 80,1989 to withhold decision on the appeal until supplemental briefs could be submitted on the issue of whether the magistrate conducting voir dire of the jury warrants reversal in light of Gomez v. United States, — U.S. -, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989). Having now received and considered the supplemental briefs filed by appellants and the government, we turn to this issue. Appellants argue that their convictions must be reversed. We disagree and vote to affirm.
The Supreme Court in Gomez addressed the question of “whether presiding at the selection of a jury in a felony trial without the defendant’s consent is among those ‘additional duties’ ” permitted a magistrate under 28 U.S.C.A. § 636(b)(3) (West Supp. 1989). Gomez, 109 S.Ct. at 2239. Section 636(b)(3), part of the Federal Magistrates Act, limits the duties that may be assigned a magistrate to those which the magistrate could execute without being “inconsistent with the Constitution and laws of the United States.” Gomez concluded that § 636(b)(3) did not grant magistrates authority to preside over voir dire in a criminal trial. Because “[ajmong those basic fair trial rights that ‘ “can never be treated as harmless” ’ is a defendant’s ‘right to an impartial adjudicator, be it judge or jury,’ ” the Court concluded that “harmless-error analysis does not apply in a felony case in which, despite the defendant's objection and without any meaningful review by a district judge, an officer exceeds his jurisdiction by selecting a jury.” 109 S.Ct. at 2248.
Since the Supreme Court’s holding there have been a number of circuit court opinions addressing the issues of (1) whether Gomez established a jurisdictional bar to magistrates presiding over voir dire, and (2) whether reversal is mandated where a defendant prior to Gomez either consented or failed to object to empanelment before a magistrate. In two cases handed down subsequent to Gomez, we held that Gomez did not create a jurisdictional bar to a magistrate conducting voir dire, and that reversal is not mandated when a defendant, prior to that decision, consented or failed to object to empanelment by a magistrate. See United States v. Vanwort, 887 F.2d 375, 382-83 (2d Cir.) (failure to object), petition for cert. filed (Dec. 21, 1989); United States v. Mang Sun Wong, 884 F.2d 1537, 1546 (2d Cir.1989) (explicit consent), cert. denied, — U.S. -, 110 S.Ct. 1140, 107 L.Ed.2d 1045 (1990).
Here appellants, who were tried before Gomez was filed, neither consented nor objected to voir dire by a magistrate. Under Vanwort, there is no question that we do not find reversal warranted in these circumstances. Appellants contend — and the dissenting opinion concludes — that we may distinguish the instant case from Van-wort because in this case the jury was selected after our holding in United States v. Garcia, 848 F.2d 1324, 1332 (2d Cir.1988), rev’d sub nom. Gomez v. United States, — U.S. -, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), which stated that “even absent a defendant’s consent [and where a defendant explicitly objects] the Federal Magistrates Act permits district courts to delegate the task of jury selection in felony cases to a magistrate.” We think the distinction irrelevant.
In making this argument, appellants rely upon United States v. France, 886 F.2d 223 (9th Cir.1989). There, faced with a factual situation identical to that now before us, the court held that failure to object would not amount to a waiver because two earlier circuit cases “presented [the defendant] with a ‘solid wall of circuit authority’... [that] had already decided, erroneously, that magistrates could conduct voir dire in felony trials. Any objection to the magistrate performing voir dire... would, therefore, clearly have been futile.” Id. at 228. France was predicated on two Ninth Circuit en banc opinions establishing that a defendant was excused from making a contemporaneous objection when there was a “solid wall of authority” that would have' prevented a district court from upholding the defendant’s objection. Id. at 227-28.
Significantly, we have not established an exception to the contemporaneous objection requirement in areas where there is a “solid wall of authority” running contrary to the defendant’s objection. The only authority even suggesting an analogous principle in this Circuit is a footnote, cited in the dissenting opinion, in United States v. Indiviglio, 352 F.2d 276 (2d Cir.1965) (en banc), cert. denied, 383 U.S. 907, 86 S.Ct. 887, 15 L.Ed.2d 663 (1966). The footnote acknowledges that under plain-error analysis “[ajppellate courts often notice error not objected to below when, under the law existing at the time of the trial, objection would have been futile and when error was asserted on review on the basis of a subsequent appellate decision.” Id. at 280 n. 7. This single line cannot be said to establish a circuit wall-of-authority exception similar to that relied upon by the Ninth Circuit.
Nor did Garcia itself create authority sufficient to cause defense counsel to believe any objection to jury empanelment before a magistrate would be futile. The decision in Garcia was promptly appealed to the Supreme Court and reversed a year later. In contrast, the Ninth Circuit already had ruled in two cases decided four years prior to Gomez — certiorari had been denied in both — that magistrates were empowered to conduct voir dire under the Federal Magistrates Act. See United States v. Peacock, 761 F.2d 1313 (9th Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 114 (1985); United States v. Bezold, 760 F.2d 999 (9th Cir.1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 811, 88 L.Ed.2d 786 (1986). Thus, the posture of the issue in our Circuit is more akin to that existing in the First Circuit where “[tjhere was no binding rule... such as necessarily foredoomed an objection to magistrates’ empaneling.” United States v. Lopez-Pena, Nos. 87-2003 through 87-2008, slip op. at 15-16 (1st Cir. Nov. 22, 1989) (rehearing en banc filed Dec. 20, 1989).
Appellants additionally claim that Gomez states that a magistrate is without jurisdiction under the Federal Magistrates Act to conduct voir dire. We disagree. Since Gomez was decided we and other circuits have focused on the “without defendant’s consent” language and generally ruled that where there is either consent or a failure to object a magistrate may conduct the jury voir dire in a felony case. See Vanwort, 887 F.2d at 382-83; Wong, 884 F.2d at 1544; Lopez-Pena, supra, slip op. at 17-18 (not plain error to permit magistrate to preside since objection to magistrate must be raised or it is waived); Government of the Virgin Islands v. Williams, 892 F.2d 305, 310 (3d Cir.1989) (absent demand no constitutional difficulty under § 636(b)(3) with delegating jury selection to magistrate); United States v. Ford, 824 F.2d 1430, 1438-39 (5th Cir.1987) (en banc) (harmless error for magistrate to conduct voir dire where defendant failed to object), cert. denied, 484 U.S. 1034, 108 S.Ct. 741, 98 L.Ed.2d 776 (1988); United States v. Wey, 895 F.2d 429 (7th Cir.1990) (jury selection by magistrate is not plain error where no prejudice is shown). Con-cededly, France concluded otherwise. The court there ruled that defendant’s failure to contemporaneously object to the magistrate conducting jury selection did not waive her right to appellate review. 886 F.2d at 226. But that holding may be explained, as noted earlier, by what the court perceived as the futility of defendant raising an objection below.
We think that the magistrate had subject matter jurisdiction to conduct the voir dire in this case. Federal courts are courts of limited jurisdiction empowered to hear only those cases within the judicial power of the United States, as set forth in Article III of the Constitution, and those over which Congress has conferred to them a jurisdictional grant. See, e.g., Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173-80, 2 L.Ed. 60 (1803). From this principle, it has been a commandment etched into the edifice of federal jurisprudence for over 150 years that parties cannot confer subject matter jurisdiction on a federal court, not granted it by the Constitution and Congress, although they may be willing and even anxious for the court to hear and determine the case. See Jackson v. Ashton, 33 U.S. (8 Pet.) 148, 149, 8 L.Ed. 898 (1834); cf. American Fire & Casualty Co. v. Finn, 341 U.S. 6, 17-18 & n. 17, 71 S.Ct. 534, 542 & n. 17, 95 L.Ed. 702 (1951). Thus, when the Supreme Court stated that “[a] critical limitation on [the magistrate’s] jurisdiction is consent,” it plainly was not referring to the subject matter jurisdiction of the district court over a felony criminal trial. Gomez, 109 S.Ct. at 2244.
Instead, we think the “consent” language has reference to waivable matters under the Federal Rules of Criminal Procedure. Under Fed.R.Crim.P. 12 certain kinds of motions in a criminal prosecution must be raised before trial or they are waived. There are five numbered subdivisions of Rule 12(b) listing such defenses, objections and requests. Lack of subject matter jurisdiction, is not included among these waivable objections, and may be raised at any time. Fed.R.Crim.P. 12(b)(2). Subdivision (1) of Rule 12(b) provides for an objection based on defects in the institution of the prosecution. It is in this category of objectionable matters that the improper selection of the jury by a magistrate falls. It is a “fair trial” right to have an Article III judge conduct voir dire of the jury, see Gomez, 109 S.Ct. at 2248, and for the district court to direct the magistrate to perform it is a defect in the institution of the prosecution.
Unable to square the Supreme Court’s use of the word “jurisdiction” with traditional notions of subject matter jurisdiction, see Gomez, 109 S.Ct. at 2244-45 (magistrate’s present expanded criminal trial jurisdiction depends on consent), we believe that what Gomez intended was that — absent Congress’ grant of authority in the magistrate to perform jury selection in a felony case — the improper reference to a magistrate is a waivable defect that must be raised within the time permitted by Fed. R.Crim.P. 12(c) or it is waived under Rule 12(b). Thus, a magistrate’s lack of jurisdiction to act absent consent is analogous to a district court’s lack of jurisdiction over the person, which is also a defense that is waived unless promptly asserted. See United States v. Grote, 632 F.2d 387, 388-89 (5th Cir.1980) (failure to object to personal jurisdiction of trial court because of faulty arrest warrant waived objection); 1 Wright, Federal Practice and Procedure: Criminal 2d § 193 (1982) (collecting cases). We conclude that the defendant’s failure to make a contemporaneous objection to the delegation of jury selection to a magistrate thereby waives the objection. Like our sister circuits, we do not find empanelment before a magistrate reversible on appeal as “plain error.” See Fed.R.Crim.P. 52(b).
In any event, we are constrained by our panel holdings in Vanwort and Wong to rule that appellants, not having raised objection to the magistrate’s selection of the jury, waived their right to reversal on appeal. Hence, the judgments of conviction must be affirmed.
Judgments affirmed.
. In fact, Siegal was never asked about a cooperation agreement.
. Because Musacchia’s counsel attacked De-Jonge’s credibility in his opening statement, appellants concede that DeJonge’s subsequent testimony about the truth-telling portions of his cooperation agreement was not error. "If the opening sufficiently implicates the credibility of a government witness... testimonial evidence of bolstering aspects of a cooperation agreement may be introduced for rehabilitative purposes during direct examination." United States v. Cosentino, 844 F.2d 30, 33 (2d Cir.), cert. denied, — U.S. -, 109 S.Ct. 303, 102 L.Ed.2d 322 (1988).
. Although no objection was made when Cuomo was asked about the truth-telling provisions in his agreement, counsel for Musacchia had asked that his objection to similar questioning of Ri-bando be deemed continuing.
. The evidence that Musacchia used the company he formed with Williams as part of the illegal daisy chain scheme is not based on or affected by Williams’ testimony. Williams merely testified that he helped form CWM, established certain bank accounts for the business and later helped dissolve the business. Moreover, Williams testified that he never met or did business with Gambino.
. Section 6531(4) states in full that a six-year statute of limitations is required
for the offense of willfully failing to pay any tax, or make any return (other than a return required under authority of part
Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer:
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songer_genapel1
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A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
KROPP FORGE COMPANY, Petitioner, v. SECRETARY OF LABOR and Occupational Safety and Health Review Commission, Respondents.
No. 80-2160.
United States Court of Appeals, Seventh Circuit.
Argued April 13, 1981.
Decided Aug. 14, 1981.
Robert D. Moran, Washington, D. C., for petitioner.
John A. Bryson, Acting Sol. of Labor, U. S. Dept, of Labor, Washington, D. C., for respondents.
Before CUMMINGS, Chief Judge, SWYGERT, Senior Circuit Judge, and JAMESON, Senior District Judge.
The Honorable William J. Jameson, Senior District Judge of the District of Montana, is sitting by designation.
CUMMINGS, Chief Judge.
Kropp Forge Company has filed a petition to review an order of the Occupational Safety and Health Review Commission holding that Kropp violated 29 U.S.C. § 654(a)(2) because of noncompliance with an occupational safety and health standard, codified at 29 C.F.R. § 1910.95(b)(3), that provides in full:
“In all cases where the sound levels exceed the values shown herein, a continuing effective hearing conservation program shall be administered.”
The citation against Kropp charged, and after a hearing the Administrative Law Judge (AU) found that noise levels generated by forging hammers at Kropp’s Chicago steel forging plant continuously exceeded 90 decibels and that Kropp’s hearing conservation program lacked six elements necessary to constitute an effective program as required by the above-quoted standard. The AU further found that the violation was “willful-serious” as charged and assessed a penalty of $5000. The Commission declined Kropp’s petition for discretionary review so that the ALJ’s July 2, 1980, opinion became the final order of the Commission on August 7, 1980, pursuant to 29 U.S.C. § 661(i). We conclude that the standard under which Kropp was cited is unenforceably vague and therefore reverse.
As a preliminary matter, we reject Kropp’s contention that all evidence gathered during two December 1978 Occupational Safety and Health Administration (OSHA) inspections should have been suppressed on the ground that it was obtained pursuant to a warrantless search in violation of the Fourth Amendment. Kropp concedes that it granted OSHA permission to enter its premises on these occasions to verify an employee complaint, unrelated to the present charges, concerning excessive exposure to carbon monoxide fumes from fork-lift trucks. At the time of her first visit to the plant, on December 5, 1978, the OSHA compliance officer stated that her inspection would not go beyond the area of the complaint, i. e., the plant’s “KFA Building” where the fork-lift trucks were located. However, after making an initial walk around the building, the compliance officer determined that sampling of noise levels generated by forging hammers located in the KFA Building was also required. Accordingly, the inspection was continued on December 13 and 19, at which times sampling for both carbon monoxide and noise levels was conducted. Kropp argues that its consent was limited specifically to the carbon monoxide investigation so that the noise level samples were taken unlawfully.
The record shows, however, that at all times on December 13, the compliance officer was accompanied by Kropp’s Safety Director and that on December 19, she and a second compliance officer were accompanied by the Safety Director and Kropp’s General Manager. Both men had been informed that noise sampling would be conducted, and they raised no objections to the approximately five hours of sampling conducted on each day. Moreover, the Safety Director requested and received the results from the noise sampling taken on both days. While it is true that Kropp refused entry to a compliance officer seeking to continue the noise inspection in January 1979, the only surveys attacked by Kropp are those that took place on December 13 and 19. Since Kropp’s representatives were present at all times during those inspections and did not raise any objections when informed of the intended sampling, any Fourth Amendment objection to those surveys was waived. Marshall v. Western Waterproofing Co., Inc., 560 F.2d 947, 950-951 (8th Cir. 1977); Dorey Electric Co. v. OSHRC, 553 F.2d 357, 358 (4th Cir. 1977).
Kropp next argues that the standard which it is said to have violated does not provide “fair warning” of what is required or prohibited and is therefore unenforceably vague under United States v. L. Cohen Grocery Co., 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516, and its progeny. We agree. The rationale of Cohen Grocery has been applied in a number of decisions under the Occupational Safety and Health Act. In Dravo Corporation v. OSAHRC, 613 F.2d 1227, 1234 (3d Cir. 1980), for example, an employer was held not to be subject to sanctions for non-compliance with safety standards “without adequate notice in the regulations of the exact contours of his responsibility.” The court applied the traditional rule that the applicability of penal sanctions in regulations is to be narrowly construed by the judiciary and stated that OSHA regulations must “be written in clear and concise language so that employers will be better able to understand and apply them,” quoting from Diamond Roofing Co. v. OSAHRC, 528 F.2d 645, 650 (5th Cir. 1976). See also Bethlehem Steel Corporation v. OSAHRC, 573 F.2d 157, 161-162 (3d Cir. 1978); 4 Davis, Administrative Law Treatise § 301.2. The regulation in issue here, providing only that “a continuing effective hearing conservation program shall be administered,” misses the mark considerably.
Kropp, as noted, was cited for non-compliance because its program lacked the following six elements:
1. Annual audiometric tests.
2. Referral of employees to a physician.
3. Re-tests of employees with significant threshold shifts.
4. Selection and use of hearing protection.
5. Training in use of hearing protectors.
6. Enforcement of proper wearing of hearing protectors.
However, the standard does not give any warning to employers that their conservation programs must contain these six elements. Indeed, in proposing a change in the standard in 1974, the Secretary of Labor stated:
“The current standard * * * does not explicitly require monitoring of the sound level of the employee’s surroundings nor measurement of the individual employee’s resulting exposure” (39 Fed.Reg. 37,-774 (1974)).
Also a 1972 document that the Labor Department published as “A Guide to OSHA Standards,” notes that “[s]ince audiometric tests are not specifically mentioned in the regulations, they are not specifically required” (App. 136). That publication defined “hearing conservation program” in the regulatory standard as referring to “audiometry — periodic checks on the hearing ability of individual employees — and to noise surveys — periodic checks of the noise level in the area in which employees are working” (Idem.). This official definition, which was satisfied by Kropp, does not contain the six elements Kropp was cited as failing to provide. Similarly, an OSHA Field Information Memorandum in 1974 provided that OSHA’s official policy was “not requiring] audiometrie testing” (App. 161; emphasis in original), again contradicting the present citation.
Even the compliance officer who conducted the December 1978 inspections of Kropp’s plant testified that the six elements listed in the citation were not required by the then controlling regulation (App. 165-166) nor thought by her to be included in the standard (Tr. 490), and had not been included in a Field Operations Manual until April 20, 1979 (App. 40, 64), whereas the alleged violations here occurred in December 1978. Furthermore, on January 16, 1981, too late for this case, OSHA removed the one-sentence standard at issue in this case and replaced it with a new regulation which, like the 1974 proposal, contains all six elements listed on the citation at issue in this case (46 Fed.Reg. 4162-4164), thus acknowledging that these elements were not previously included in the standard before us.
Finally, it is noteworthy that in Secretary of Labor v. B. W. Harrison Lumber Company, 4 BNA OSHC 1091 (1976), an Administrative Law Judge held that 29 C.F.R. § 1910.95(b)(3), the regulation involved here, was unenforceably vague. His vacation of the OSHA noise citation was affirmed by the Commission by a 2 — 1 vote. One of the two majority members affirmed the ALJ on the vagueness ground, whereas the other majority member affirmed the disposition because the citation did not conform to the statutory criteria. Although the Fifth Circuit affirmed the Commission because of the invalidity of the citation, the 1978 opinion of the court held that the citation reference to 29 C.F.R. § 1910.-95(b)(3) was deficient because it merely parroted the words in the regulation that the employer failed to provide “a continuing effective hearing conservation program” and did not inform the employer of what was charged. 569 F.2d 1303, 1309. After this 1978 opinion of Judge Godbold, the Secretary had ample opportunity to amend the regulation, so that it would give proper notice to an employer and finally did so in January 1981. More recently, in Secretary of Labor v. Kraft Food, Inc., 9 BNA OSHC 2040 (March 17, 1981), an ALJ again found 29 C.F.R. § 1910.95(b)(3) unenforceably vague. This decision, in direct conflict with the result in this case, became a final order of the Commission on May 18, 1981.
The ALJ rejected Kropp’s vagueness argument because
“The standard does not involve criminal or First Amendment activity and if the regulation affords reasonable warning of the proscribed conduct in light of common understanding, it is not constitutionally vague” (App. 5).
His decision is erroneous because the pertinent parts of the OSH Act and regulations do impose “penal sanctions,” and the regulation in issue does not give reasonable notice of the conduct said to be prohibited “in light of the common understanding.” Indeed, the ALJ himself acknowledged that the six elements of the hearing conservation program upon which this citation is based were not shown to be the custom and practice in the forging industry, and there was in fact no evidence of the “common understanding.”
As in In the Matter of: Establishment Inspection of: Metro-East Manufacturing Company, 655 F.2d 805, 810-812 (7th Cir. 1981), involving a similar OSHA regulation, we find the regulation under which Kropp was charged to be unconstitutionally vague. Therefore, it is unnecessary to consider Kropp’s other arguments as to why the Commission’s order was defective. The order appealed from is reversed.
. 29 U.S.C. § 654(a)(2) provides as follows:
“(a) Each employer— * * * * * *
“(2) shall comply with safety and health standards promulgated under this Act.” Kropp had also been charged with violations of 29 U.S.C. §§ 666(a) and (b) through violations of 29 C.F.R. § 1910.95(b)(1) and 29 C.F.R. § 1910.1001(f)(1). The first of these citations was withdrawn by the Secretary, and the second was vacated by the Administrative Law Judge (App. 16). The petition for review challenged only the Commission’s decision that Kropp had violated 29 U.S.C. § 654(a)(2) by not complying with 29 C.F.R. § 1910.95(b)(3).
. The reference is to Table G-16 of 29 C.F.R. § 1910.95 which permits a level of 90 decibels of noise when averaged over an 8-hour work day with higher levels permitted for lesser periods of time.
. The six elements listed in the citation were:
(a) Regular, annual audiometric tests of employees exposed to sound levels in excess of Table G-16;
(b) Employees with a 20 db or greater hearing loss, at any frequency, must be referred to an otolaryngologist or qualified physician;
(c) Re-tests must be conducted of employees whose audiograms are considered unreliable or who show significant threshold shifts of 20 db or more at any frequency;
(d) Appropriate and adequate hearing protection, as required by 29 C.F.R. § 1910.95(a), must be selected or used based on the noise spectrum present in a working environment in which the sound levels exceed Table G-16;
(e) Employees exposed to sound levels exceeding Table G-16 must be trained in the proper use and care of hearing protection;
(f) The employer must enforce the use of proper wearing of hearing protection for those employees who are exposed to sound levels exceeding Table G-16.
. The noise level samples were obtained by placing audio dosimeters on the hammermen, helpers and other KFA Building employees, who wore the devices while they performed their duties. Sound level meter readings were also taken at the employees’ ear levels to confirm the accuracy of the dosimeter readings. The samples showed that noise levels were at all times above 90 decibels.
. Although Kropp moved to suppress all evidence gathered during the December 5, 1978, through May 21, 1979, OSHA investigation of its premises, the Fourth Amendment objection now pressed concerns only evidence gathered during the December 13 and 19 inspections. Kropp did not move to suppress the results of the January 8-9, 1979, inspections showing that noise levels remained in excess of 90 decibels.
. See also American Textile Manufacturers Institute, Inc. v. Donovan, — U.S. —, —, 101 S.Ct. 2478, 2505-06, 69 L.Ed.2d 185, where the Supreme Court struck down the wage guarantee provision in OSHA’s cotton dust standard partly because, as here, post-hoc rationalizations of the agency “cannot serve as a sufficient predicate for agency action.”
. The Secretary, of course, knew how to promulgate a proper regulation before then, as shown by his detailed 1976 standard for employee exposure to coke oven emissions. American Iron & Steel Institute v. OSHA, 577 F.2d 825, 827 (3d Cir. 1978). If such a technique had been employed in promulgating this sound level regulation, no fatal vagueness problem would have occurred.
. The ALJ also relied on the fact that the regulation in dispute had been upheld by an ALJ in a prior OSHA case. See Secretary of Labor v. Boise Cascade Corp., 5 OSHC 1242, 1977-78 OSHD para. 21,714 (1977), appeal filed, No. 77-2201 (9th Cir. May 31, 1977), appeal vacated (9th Cir. September 27, 1979). But see Secretary of Labor v. B. W. Harrison Lumber Company, supra, and Secretary of Labor v. Kraft Food, Inc., supra, with which we agree.
. Dravo Corporation, supra, 613 F.2d at 1232; see also Hoffman Construction Co. v. OSAHRC, 546 F.2d 281, 283 (9th Cir. 1976); Diamond Roofing Co. v. OSAHRC, supra, 528 F.2d at 649; Marshall v. Anaconda Company, 596 F.2d 370 (9th Cir. 1979); Continental Can Co., U.S.A. v. Marshall, 455 F.Supp. 1015, 1020 n.4 (S.D.Ill.1978), affirmed, 603 F.2d 590 (7th Cir. 1979).
. Since the record below contains no evidence as to the common understanding and practice of those working in the forging industry and even the ALJ concedes that the six-part hearing conservation program for which Kropp was cited was not the common practice in the forging industry, the Secretary’s reliance on our decision in Allis-Chalmers v. OSHRC, 542 F.2d 27 (7th Cir. 1976), is misguided. See Cotter & Company v. OSAHRC, 598 F.2d 911 (5th Cir. 1979). As noted both in Dravo Corporation, supra, and Diamond Roofing, supra, when a regulation fails in its purpose because of vagueness the Secretary should remedy the situation by promulgating a clearer regulation, as he finally did this year, rather than forcing the judiciary to press to the limits by judicial construction.
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:
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songer_counsel1
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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.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Timothy S. FLANDERS, Appellant, v. UNITED STATES of America, Appellee.
Nos. 12317, 12318.
United States Court of Appeals. Sixth Circuit.
April 26, 1955.
Ward Hudgins, • Nashville, Tenn., for appellant.
James L. Roberts, Asst. U. S. Atty., Nashville, Tenn., Fred Elledge, Jr., Nashville, Tenn., on the brief, for appellee.
Before SIMONS, Chief Judge, and ALLEN and McALLISTER, Circuit Judges.
McALLISTER, Circuit Judge.
Appellant, Timothy S. Flanders, was arrested by agents of the Federal Bureau of Narcotics in Nashville, Tennessee, on December 2, 1953, and found to be in the illegal possession of heroin. He was thereafter indicted for violation of Title 26 U.S.C.A. § 3224(b) and (c), and upon trial before a jury, was found guilty; and sentence was imposed in accordance with the law.
Appellant was convicted on evidence that he had agreed, in a long distance telephone conversation from New York City to Nashville, Tennessee, with one James Merritt, to transport heroin from New York City to Nashville; and that, in accordance with the conversation, he transported the heroin to Nashville, where he was arrested. Merritt previously had been arrested for violation of the drug laws, and the agents of the Bureau of Narcotics, in order to catch the man who was supplying him with narcotic drugs, prevailed upon him to call appellant Flanders and ask him to bring heroin to Nashville for sale where it could be sold at a good price. While Merritt in Nashville spoke to Flanders in New York, the agents of the Bureau of Narcotics listened to the conversation on extension phones in the offices from which Merritt was calling; and they did this with Merritt’s knowledge and consent.
The only question before the court on appeal is one of law: whether the district court erred in refusing to grant appellant’s motion to suppress the evidence secured in the telephone conversation on the ground that it constituted an interception of a telephone communication in violation of Title 47 U.S.C.A. § 605, the pertinent provisions of which read: * * no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person; * *
This question apparently was first considered in the case of United States v. Yee Ping Jong, D.C.Pa., 26 F.Supp. 69, where officers of the Bureau of Narcotics, with the knowledge and consent of the informer who made a telephone call, recorded the conversation by means of a device attached to a wire at the place where the call was made. Upon the trial, the district court permitted the recording to be introduced in evidence, and in that case, like the one before us, the evidence obtained because of the call led to the arrest and, eventually, the trial of the defendant. In denying a motion for a new trial, the late Judge Gibson stated that the manner in which the conversation in question had been recorded did not appear to present such an interception as was contemplated by the statute. He observed that according to Webster’s New International Dictionary, the verb, “intercept,” was defined in part as meaning “To take or seize by the way, or before arrival at the destined place.” It was further noted that the conversation with the defendant was not obtained by a tapping of the wire between the locality of the call and the locality of answer by an unauthorized person but was, in effect, a mere recording of the conversation at one end of the line by one of the participants.
However, a year later, in United States v. Polakoff, 2 Cir., 112 F.2d 888, 889, a contrary conclusion was reached, and the court held that one who “listened in” on a telephone conversation with consent of only one party to the conversation intercepted such communication within the meaning of the statute. Judge Learned Hand, writing for the court, held that “anyone intercepts a message to whose intervention as a listener the communicants do not consent; the means he employs can have no importance; it is the breach of privacy that counts”, and he observed that it made no difference whether one of the parties consented, “because, no matter what the scope of any such implied consent, it cannot extend to the intervention of prosecuting agents bent upon trapping the ‘sender’ criminally.” Judge Augustus N. Hand joined the writer of the opinion in his concurrence, while Judge Clark wrote a strong dissenting opinion in which he observed that, as pointed out in United States v. Yee Ping Jong, supra, “the verb ‘intercept’ means ‘to take or seize by the way, or before arrival at the destined place’ (Webster’s New International Dictionary, 2d Ed.),” and does not aptly refer to a communication which has reached its intended destination and is recorded at one end of the line by one of the participants or by his direction. “Reasons of policy”, he said, “justify the making of telephonic communications privileged for the two parties involved; they do not justify making them so privileged to one party as against use by the other. * * * There can be no real distinction — there is none suggested in the statute or by common sense — between these recordings and a transcription made by a private secretary over the telephone in an outer office, or by a servant on an upstairs extension in a house, or even by a person listening at the telephone receiver held by the party to the conversation. * * Neither is it important whether evidence of the conversation comes from the mechanical device of a record or from testimony of those directed to listen in, except that the mechanical device gives the more trustworthy evidence. * * * In last analysis we should turn to the statute, itself, for that is what we are construing. And that, it seems to me, by its terms excludes the construction here placed upon it. The statute does not refer directly to a tapping of the wires; it provides only that the communication must not be intercepted; * * *. If the communication has reached the person for whom it is intended, it is hard to see how it is intercepted when that person directs it to be transcribed.” In discussing the other provisions of the section, Judge Clark mentioned as “highly significant” the following provision: “ ‘No person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by wire or radio and ■ use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto.’ ” He declared that the clear inference of the foregoing would appear to be that, the person entitled- to receive the communication might himself use it, or the information therein contained, for his own benefit, or might have somebody else use it for him.
Subsequent to the decision in United States v. Polakoff, supra, the Supreme Court, in Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 995, 86 L.Ed. 1322, had occasion, in discussing the language of the statute, to state what it considered to be the meaning of the-word, “intercept,” as used therein, and observed: “The same view of the scope of the Communications Act follows from the natural meaning of the term ‘intercept’. As has rightly been held, this word indicates the taking or seizure by the way or before arrival at the destined place. It does not ordinarily connote the obtaining of what is to be sent before, or at the moment, it leaves the possession of the proposed sender, or after, or at the moment, it comes into' the possession of the intended receiver.” The above quotation was followed by a footnote, citing United States v. Yee Ping Jong, 26 F.Supp. 69, 70.
After the decision of the Supreme Court in Goldman v. United States, supra, the same question that arose in the Court of Appeals for the Second Circuit in United States v. Polakoff, supra, came before it again in Reitmeister v. Reit-meister, 2 Cir., 162 F.2d 691, 697. Judge Learned Hand stated that he did not believe that Goldman v. United States had overruled the decision of the Court of Appeals in United States v. Polakoff. Judge Chase, however, concurring on other grounds, stated that he did not believe the decision of the court in United States v. Polakoff had survived the decision in Goldman v. United States, and quoted from the latter ease that “ ‘The protection intended and afforded by the statute is of the means of communication and not of the secrecy of the conversation.’ ” He also emphasized that in United States v. Goldman, the Supreme Court, in its discussion of the meaning of the word, “intercept,” as above quoted in this opinion, cited United States v. Yee Ping Jong, supra, as showing that what had been decided in that case had been “rightly held.”
Prior to the decision of the district court in the instant case, aside from the above cases, the question has come, on three occasions, before the District Court for the District of Columbia. In United States v. Lewis, D.C., 87 F.Supp. 970, and in United States v. Sullivan, D.C., 116 F.Supp. 480, Judge Holtzoff held that where the telephone conversation was listened to by a third person, with the consent of one of the parties, there was no interception within the in-tendment of the statute. In United States v. Stephenson, D.C., 121 F.Supp. 274, Judge Pine held, contrary to the Lewis and Sullivan cases, that the recording of a telephone conversation by one of the parties was a violation of the statute, and that the evidence obtained thereby should be suppressed. Subsequent to the decision in the Stephenson case, in this circuit, Judge McNamee, in the Northern District of Ohio, after a discerning examination of a number of the foregoing authorities, held, in a case involving the same question, that there was no interception of a telephone communication between a defendant and an informer, where it was listened to over an extension telephone by a third party with the consent of the informer. United States v. Pierce, D.C., 124 F.Supp. 264.
We are of the opinion that where, by means of an extension phone, or other device, a third party “listens in” on a telephone conversation with the consent of one of the parties to the conversation, there is no interception of the communication, within the meaning of the statute. With respect for the high authorities that hold a contrary opinion, we are persuaded by the reasoning of those that adopt this view, and consider that the route we follow was pointed out by the Supreme Court in Goldman v. United States, supra.
In accordance with the foregoing, the judgment of the district court is affirmed.
. The Lewis case was subsequently reversed, but on other grounds, 184 F.2d 394, 24 A.L.R.2d 881; the Sullivan case was affirmed without passing upon the issue in the instant case, D.C.Cir., 219 F. 2d 760.
. See comprehensive note on meaning of “interception,” as used in the Communications Act, in Michigan Law Review, February 1955, p. 623.
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_geniss
|
F
|
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".
FUSIBLES WESTINGHOUSE DE PUERTO RICO, INC., Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Raymond J. Donovan, Secretary of Labor, Respondents.
No. 80-1724.
United States Court of Appeals, First Circuit.
Argued May 6, 1981.
Decided Sept. 9, 1981.
Pedro Fumarada, San Juan, P.R., with whom Jay A. Garcia-Gregory and Fiddler, Gonzalez & Rodriguez, San Juan, P.R., were on brief for petitioner.
James E. Culp, Atty., U. S. Dept, of Labor, Washington, D. C., with whom T. Timothy Ryan, Jr., Sol. of Labor, Washington, D. C., Mary Z. Asseo, Associate Regional Sol., Hato Rey, P.R., Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Allen H. Feldman, Counsel for Appellate Litigation, and John A. Bryson, Asst. Counsel for Appellate Litigation, Washington, D. C., were on brief, for The Secretary of Labor.
Before GIBSON, Senior Circuit Judge, CAMPBELL and BOWNES, Circuit Judges.
Of the Eighth Circuit, sitting by designation.
BOWNES, Circuit Judge.
Appellant Fusibles Westinghouse De Puerto Rico, Inc. (Fusibles) seeks review of the decision of the Occupational Safety and Health Review Commission that it violated the Secretary of Labor’s regulation for spray finishing processes using flammable and combustible materials. We affirm the Commission’s determination.
The facts of this case are for the most part undisputed. Two of the electrical fuses manufactured by Fusibles in its plant in Luquillo, Puerto Rico, are spray painted in a prefabricated dry-type spray booth. The booth is located outside the manufacturing building in an L-shaped corner of the west wall. It is three-sided. A 20-foot-long roof extends over its top; its open side is 7 feet high and 5 feet wide, and it is 4 feet deep with an overall depth of 6 feet 8 inches. An exhaust protrudes through the top of the overhanging roof. The booth contains a small machine with a device powered by an electrically-driven sprocket and chain, which could yield enough heat to serve as an ignition source for flammable vapor. The machine and device rotate the three-foot long Burndy fuses so they can be painted. The paint mixture consists of one-third paint and one-third each of toluene and cellulose — both flammable substances.
In the period between March 10 — May 4, 1978, the Secretary of Labor’s compliance officer inspected Fusibles and found a number of deficiencies in its operations. As a consequence, the Secretary cited Fusibles, charging among other things, five nonserious violations of the standard for spray finishing using flammable and combustible substances. 29 C.F.R. § 1910.107 et seq. The citation stated in relevant part that the spray booth was not protected with approved automatic sprinklers, in contravention of 29 C.F.R. § 1910.107(b)(5)(iv); that the glass panels used for illumination of the booth were not protected to prevent breakage, in violation of 29 C.F.R. § 1910.-107(b)(10); that open or “glass” containers were used for bringing flammable or combustible liquids into spray finishing rooms, in violation of 29 C.F.R. § 1910.107(e)(3); that spray nozzles and auxiliary equipment using solvents during the spraying operation were not cleaned inside the spray booth, in violation of 29 C.F.R. § 1910.-107(g)(5); and that adequate ventilation in the booth was lacking and no means were taken to insure proper ventilation, in violation of 29 C.F.R. § 1910.107(b)(5)(i).
The Occupational Safety and Health Review Commission judge affirmed the Secretary’s findings. No penalty was assessed. Fusibles presented no evidence to rebut the Secretary’s assertions of fact and the judge accepted them as true. He also rejectedFusibles’ two legal defenses: (1) that its operations were excluded from the scope of 29 C.F.R. § 1910.107 because the spray booth was located outside the building, and (2) that the Secretary failed to establish, as required by 29 C.F.R. § 1910.10(a)(2), that the company’s operations produced dangerous quantities of fumes. Fusibles filed a Petition for Discretionary Review and supporting brief. When no Commission member directed a review, the petition was automatically denied making the decision a final order. Appellant seeks review here of that final order.
Appellant’s exclusion argument is based on the “outdoor” exemption contained in 29 C.F.R. § 1910.107(n), which defines the scope of the regulation. Section 1910.107(n) provides:
(n) Scope. This section applies to flammable and combustible finishing materials when applied as a spray by compressed air, “airless” or “hydraulic atomization,” steam, electrostatic methods, or by any other means in continuous or intermittent processes. The section also covers the application of combustible powders by powder spray guns, electrostatic powder spray guns, fluidized beds, or electrostatic fluidized beds. The section does not apply to outdoor spray application of buildings, tanks, or other similar structures, nor to small portable spraying apparatus not used repeatedly in the same location.
The exemption does not include all outdoor operations, but refers to outdoor spray finishing operations involving an application to the surfaces of large structures. This would not be a continuous process. Fusibles’ process is ongoing, using combustible materials applied as a spray, and falls within the operations described in the first sentence. That the exemption does not encompass all outdoor operations is supported by the exemption of small portable apparatus “not used repeatedly in the same location.” This means that such apparatus would be covered if used repeatedly in the same outdoor location. The critical distinction between the included and exempted processes is not physical location — inside or outside— but whether there is a possibility that combustible fumes will accumulate due to the frequency of use in a particular location. An outdoor booth with one open side does not render the requirements of the regulations unnecessary because, as the administrative law judge observed, it may still have dead air trapped within it.
We turn next to Fusibles’ contention that it did not violate the regulation because the Secretary failed to prove that dangerous quantities of vapors were produced by its spray painting operation. In pressing this view, appellant relies on § 1910.107(a)(2), which provides:
(2) Spraying area. Any area in which dangerous quantities of flammable vapors or mists, or combustible residues, dusts, or deposits are present due to the operation of spraying processes.
The term “dangerous quantities,” it argues, implies that flammable vapors may appear in other quantities which are not dangerous. We observe first that the applicable regulations with respect to four of the five non-serious violations do not use the words “spraying area” and hence arguably do not involve an interpretation of the term “dangerous quantities.” We further point out that the Commission noted the absence of the term “spraying area” in regulation 29 C.F.R. § 1910.94(c)(2) in reversing an earlier decision, Bethlehem Fabricators, Inc., [1976-77] OSHD (CCH) § 20,782 (Rev. Comm’n 1976), holding that the Secretary must prove that “dangerous quantities” of emissions were produced by spray painting activities in order to show a violation of § 1910.94(c)(2). See Westinghouse Electric Corporation, [1979] OSHD (CCH) § 23,542 at 28,519 & n.6 (Rev.Comm’n 1979), vacated on other grounds, 617 F.2d 497 (7th Cir. 1980). This would seem to indicate that the definition of “spraying area” is not applicable to provisions not using the term.
The glass panel violation, 29 C.F.R. § 1910.107(b)(10), however, does refer to “spraying area,” and we therefore must delve into the meaning of “dangerous quantities.” In so doing we look for aid to the national consensus standard from which it is derived, NFPA No. 33-1969 (National Fire Protection Association), Standard for Spraying Finishing Using Flammable and Combustible Materials. That standard provides that the spraying area include the interior of the spray booth, the exhaust duct, and any area in the direct path of spray and any area containing dangerous quantities of air-suspended combustible residue, dust, deposits, vapors, or mists as a result of spraying operation. Such areas can thus be said to be presumed to have dangerous quantities of mists, vapors or residues. In the case at hand, the fluorescent light was situated in the back of the booth and hence was in the spraying area. The booth was in violation of § 1910.-107(b)(10) because the glass panel was cracked and not protected so as to make breakage unlikely.
Because we conclude that the Commission applied valid regulations correctly to factual findings supported by substantial evidence, we affirm the Commission’s order.
Affirmed.
. The pertinent statutory language provides:
(c) Any employer who has received a citation for a violation of the requirements of section 654 of this title, of any standard, rule, or order promulgated pursuant to section 655 of this title, or of regulations prescribed pursuant to this chapter, and such violation is specifically determined not to be of a serious nature, may be assessed a civil penalty of up to $1,000 for each such violation.
29 U.S.C. § 666(c).
. 29 C.F.R. § 1910.107(b)(5)(iv) states:
(iv) Space within the spray booth on the downstream and upstream sides of filters shall be protected with approved automatic sprinklers.
. 29 C.F.R. § 1910.107(b)(10) provides:
(10) Illumination. When spraying areas are illuminated through glass panels or other transparent materials, only fixed lighting units shall be used as a source of illumination. Panels shall effectively isolate the spraying area from the area in which the lighting unit is located, and shall be of a noncombustible material of such a nature or so protected that breakage will be unlikely. Panels shall be so arranged that normal accumulations of residue on the exposed surface of the panel will not be raised to a dangerous temperature by radiation or conduction from the source of illumination.
. 29 C.F.R. § 1910.107(e)(3) states:
(3) Containers. Original closed containers, approved portable tanks, approved safety cans or a properly arranged system of piping shall be used for bringing flammable or combustible liquids into spray finishing room. Open or glass containers shall not be used.
. 29 C.F.R. § 1910.107(g)(5) states:
(5) Cleaning solvents. The use of solvents for cleaning operations shall be restricted to those having flashpoints not less than 100° F.; however, for cleaning spray nozzles and auxiliary equipment, solvents having flashpoints not less than those normally used in spray operations may be used. Such cleaning shall be conducted inside spray booths and ventilating equipment operated during cleaning.
. 29 C.F.R. § 1910.107(b)(5)(i) provides in pertinent part:
(5) Dry type overspray collectors — (exhaust air filters). In conventional dry type spray booths, overspray dry filters or filter rolls if installed, shall conform to the following:
(i) The spraying operations except electrostatic spraying operations shall be so designed, installed and maintained that the average air velocity over the open face of the booth (or booth cross section during spraying operations) shall not be less than 100 linear feet per minute. Electrostatic spraying operations may be conducted with an air velocity over the open face of the booth of not less than 60 linear feet per minute, or more, depending on the volume of the finishing material being applied and its flammability and explosion characteristics. Visible gauges or audible alarm or pressure activated devices shall be installed to indicate or insure that the required air velocity is maintained.
. 29 C.F.R. § 1910.94(c) is the Secretary’s general spray finishing standard and is applicable to operations not within the scope of § 1910.-107. See Westinghouse Electric, [1979] OSHD (CCH) § 23,542 at 28,520-21 (Rev.Comm’n 1979), vacated on other grounds, 617 F.2d 497 (7th Cir. 1980).
. NFPA No. 33-1969 provides:
104. SPRAYING AREA. Any area in which dangerous quantities of flammable vapors or mists, or combustible residues, dusts or deposits are present due to the operation of spraying processes.
A spraying area includes:
(a) The interior of spray booths except as specifically provided in Section 1104.
(b) The interior of ducts exhausting from spraying processes.
(c) Any area in the direct path of spray or any area containing dangerous quantities of air-suspended powder or air-suspended combustible residue, dust, deposits, vapor or mists as a result of spraying operations.
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_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
TENNESSEE VALLEY AUTHORITY et al. v. ASHWANDER et al. ASHWANDER et al. v. TENNESSEE VALLEY AUTHORITY et al.
Nos. 7764, 7812.
Circuit Court of Appeals, Fifth Circuit.
July 17, 1935.
See, also, 9 F. Supp. 800.
No. 7764:. James Lawrence Fly, Gen. Sol., Tennessee Valley Authority, and William C. Fitts, Jr., both of Knoxville, Tenn., John Lord O’Brian, of Buffalo, N. Y., and Wm. H. Mitchell, of Florence, Ala., for appellants.
Forney Johnston and Jos. F. Johnston, both of Birmingham, Ala., for appellees.
No. 7812: Forney Johnston, of Birmingham, Ala., for cross-appellants.
James Lawrence Fly, Gen. Sol., Tennessee Valley Authority, and William C. Fitts, Jr., both of Knoxville, Tenn., John Lord O’Brian, of Buffalo, N. Y., Wm. II. Mitchell, of Florence, Ala., John E. Delony, Jr., of Tuscumbia, Ala., Perry W. Turner, C. A. Bingham, J. T. Stokely, and W. Logan Martin, all of Birmingham, Ala., and Courtland Palmer, of New York City, for cross-appellees.
Before BRYAN, FOSTER, and SIBLEY, Circuit Judges.
Writ of certiorari granted 56 S. Ct. 145, 80 L. Ed. —.
BRYAN, Circuit Judge.
By contract dated January 4, 1934, the Alabama Power Company, a corporation engaged in the manufacture, transmission, and distribution of electricity, agreed to sell such of its transmission lines as extend from Wilson Dam at the Muscle Shoals plant in Alabama into seven Alabama counties, to the Tennessee Valley Authority (TVA), a corporate agency of the United States, created by the Act of Congress of May 18, 1933, 48 Stat. 58, 16 USCA § 831 et seq. The TVA agreed to pay the purchase price of $1,-150,000 upon delivery. The Alabama Power Company further agreed that it would offer its distribution systems within the territory above named for sale to the respective municipalities in which such systems are located at prices which it was willing to accept; and that it would cooperate with the Electric Home & Farm Authority (EHFA), a government corporate agency created to finance sales of electrical appliances, in the sale of such appliances. The TVA, after waiting three months for the negotiation and consummation of sales of the urban distribution systems, was to have the right to furnish electric' power to any and all such systems regardless of whether the Alabama Power Company had sold them to the municipalities. On May 21, 1934, the Alabama Power Company entered into an agreement with EHFA to act as the latter’s agent in the collection of installments due on the purchase price of electrical appliances sold by retailers to individual customers. On August 9, 1934, the Alabama Power Company, not having sold any of its distribution systems to the municipalities, granted to TVA an option to purchase them; but on January 25, 1935, after this suit was filed, TVA gave notice that it had elected not to exercise that option.
On September 13, 1934, this suit to enjoin performance of the above-mentioned contracts was brought by a minority of the preferred stockholders of the Alabama Power Company, after they had formally but unsuccessfully demanded that the company itself institute suit to rescind those contracts.
The decree of the District Court, entered after final 'hearing, adjudged the contracts of January 4 and May 21 to be in furtherance of illegal proprietary operations by TVA, and ' ordered them annulled. It enjoined seventeen municipal 'defendants, which were under contract to receive electric power from TVA for use in the area served by the Alabama Power Company, from accepting or expending federal funds for the construction of city electric light plants, holding that these contracts were entered "into in aid of TVA’s illegal proprietary operations; and further enjoined them and the remaining municipal defendant, the city of Athens, which owns its distribution system, from purchasing electric power from TVA, on the ground that TVA was engaged in illegal competition with the Alabama Power Company. The TVA, EHFA, and city of Florence appeal from the decree. The plaintiffs below have taken a cross-appeal, contending that the decree should have included a declaratory judgment in order to prevent TVA from attempting to renew the option contract of August 9, which it is said was not exercised because of the pendency of this suit, or from engaging in divers other illegal operations not specifically enjoined.
The district judge made the following, among other, findings of fact: The United States acquired the Muscle Shoals property on the Tennessee river and built thereon Wilson Dam, an auxiliary steam plant, and two nitrate plants, for war purposes. The existence of these facilities for the manufacture of war materials constitutes a valuable national asset. Wilson Dam unaided by other power development, with its eight hydro-electric generators installed by the War Department, is capable of producing 50,000 kilowatts continuously, except during low stages of water; and the steam plant has a continuous capacity of 60,000 kilowatts. In 1934, 68 per cent, of the power generated at Wilson Dam was used for governmental purposes. Other dams under construction, which like Wilson are of the high-dam type, are, upstream, the Norris and the Wheeler; and, downstream, the Pickwick. The release of waters from Norris Dam will increase the continuous capacity of Wilson Dam by 40,000 kilowatts, and Norris Dam itself, if generators are installed, is capable of producing 73,-000 kilowatts. If the Wheeler and the Pickwick Dams are used only as reservoirs, according to present • plans, the total continuous capacity of Wilson and Norris Dams in combination, without the aid of the steam plant, will be 202,000 kilowatts. The construction of Wilson Dam also provides a depth of 9 feet of slack water over the Muscle Shoals rapids, thereby eliminating a serious obstruction to navigation. Navigation will be further improved by the completion of Wheeler and Pickwick Dams. Storage of water by means of reservoirs is essential to adequate flood control on the Tennessee river. Wilson Dam was completed in 1925 at a cost of $50,000,000. It probably is not capable of producing more "water power than would be needed for the national defense in time of war, but in time of peace the power it makes available is so much in excess of the government’s needs for it for national defense and for navigation that, without the installation of any other dam, there is a surplus even after supplying the transmission lines which TVA agreed to purchase from the Alabama Power Company. There has been no sale or contract for sale of the remaining surplus. The sale of electric energy generated at Muscle Shoals in excess of that required for operating the locks and' servicing government properties can be made to produce profits which could be applied toward the reimbursement of the cost of Wilson Dam, or expended in the construction of new dams. It is not the purpose of TVA to limit the production of electric power to that needed by the government in manufacturing war materials and providing for navigation, but its declared policy is to utilize to the fullest extent possible all the electric energy which the Wilson and other dams are capable of producing, by supplying first governmental needs, and then by selling the surplus to users of electricity, in competition with public utility corporations engaged in the manufacture, transmission, and distribution of electricity. In disposing of surplus power TVA intends to obtain revenue, but at the same time to undersell its private competitors in order to establish a “power yardstick” and to demonstrate the advantages of public over private ownership of electric light plants. Upon these findings of fact, which may safely be assumed to be correct since none of them is challenged, the district judge concluded as a matter of law that the Congress has no constitutional power to confer upon TVA, or any federal agency, the right to enter into such a contract as that of January 4, and that the contract of January 4, since it was void as to TVA, was void as to the Alabama Power Company. The district judge, having reached this conclusion, consistently held that the dependent contract of May 21 was also void. The plaintiff stockholders may be dismissed from further consideration, inasmuch as they are entitled to assert only the rights of the Alabama Power Company; and so we need to consider only the effect of the principal contract of January 4 upon the rights of the contracting parties. The district judge, having held that TVA was assuming to exercise authority which no act of Congress could constitutionally confer upon it, did not pass upon the contention made on behalf of the Alabama Power Company that the TVA Act of 1933 was invalid on the ground that it purports to delegate legislative authority. It was' the view of the district judge that TVA, while it had the implied right to dispose of any surplus electric power unintentionally created in the exercise of a bona fide effort to make such power only as was needed for the manufacture of war materials and for serving the necessities of navigation, had and could have no constitutional authority intentionally to create and sell any additional surplus. He therefore enjoined further performance of the contract of January 4, not for any inherent infirmity, such as fraud, duress, or inadequate consideration, but solely because he was convinced that the program of TVA for the manufacture and disposal of surplus electric power bore no substantial relation to any lawful governmental function. It is the contention of TVA that as an agency of the United States it has the constitutional right and statutory authority to dispose of all the electric power, in excess of such of it as may be needed from time to time for the production of war materials and for purposes of navigation, that the Wilson Dam operated to its full capacity can be made to produce.
Wilson Dam is the property of the United States. It was constructed by authority of section 124 of the National Defense Act of 1916, 39 Stat. 215 (50 USCA § 79), for the purposes of supplying water power for the production of munitions of war and improving navigation on the Tennessee river. The right to erect and maintain it, in the exercise by Congress of the war and commerce powers conferred upon it by the Constitution, is so clear that it is conceded. The government by virtue of its lawful ownership of Wilson Dam owns also the water power inevitably created by the construction of that dam. Kaukauna Co. v. Green Bay, etc., Co., 142 U. S. 254, 12 S. Ct. 173, 35 L. Ed. 1004; Green Bay, etc., Co. v. Patten Paper Co., 172 U. S. 58, 19 S. Ct. 97, 43 L. Ed. 364; United States v. Chandler-Dunbar Co., 229 U. S. 53, 33 S. Ct. 667, 57 L. Ed. 1063. Congress, in the exercise of its power, under article 4, § 3, cl. 2, of the Constitution, to dispose of property belonging to the United States, may dispose of water power created at Wilson Dam as freely as it may of any other government property. It never heretofore has been held that the right of disposal exists only as to such part as is accidentally produced in excess of the amount strictly necessary for purposes of national defense or of navigation; but always that right has been supposed to extend to all the excess or surplus. Water power is property sui generis; unlike most other forms of property it cannot be put away and kept for future use or sale, but it must be either converted into electricity and used up as it is released from storage or allowed to go to waste. If the water stored at Wilson Dam is permitted to pass through the penstocks, in the language of counsel for TVA, “there is gold in it,” but if allowed to flow unhindered over the 'dam, “it is forever gone.” As a practical matter, there would be no market for the incidental or accidental surplus created in the honest effort to produce only enough electricity to supply strictly governmental requirements; for no user, public or private, of electricity would become a customer unless assurance could be given of a firm and dependable supply. That the surplus or any of it need not be allowed to go to waste, bat that it and all of it may rightfully be disposed of and the proceeds applied toward reimbursement of the cost of a publicly-owned dam is well settled. Kaukauna Co. v. Green Bay, etc., Co., supra; United States v. Chandler-Dunbar Co., supra; State of Arizona v. California, 283 U. S. 423, 51 S. Ct. 522, 75 L. Ed. 1154. In the last-cited case in 283 U. S. 423, at page 455, 51 S. Ct. 522, 526, it is said: “As the river-is navigable and the means which the act provides are not unrelated to the control of navigation, * * * the erection and maintenance of such dam and reservoir are clearly within the powers conferred upon Congress.” And so here, in our opinion it cannot successfully be maintained that there ‘is no reasonable or substantial relation between the production and disposal of the surplus hydro-electric power available at Wilson Dam and the exercise of the war and commerce powers conferred upon Congress. It is within the province of Congress to adopt any reasonable means, whether of lease or sale, for disposing of the surplus. The use of transmission lines to facilitate sales cannot fairly be said by the courts to be unreasonable or inappropriate. Of course, it is true that the government of the United States cannot engage at will in private business, but it by no means follows that it cannot sell property which it owns, even though in doing so it may enter into competition with other public or private owners of property. It is not doubted that each of the several states holds in perpetual public trust dominion over the navigable waterways within its borders; but it is equally true that the rights of the states in navigable waters are subject to the. supreme war and commerce powers of the general government. We live under a dual government of divided powers, not under two separate governments of • conflicting powers. The' power over navigable waters granted to the federal government is not in conflict with, but is necessarily superior to the dominion over such waters which the states reserved to themselves. Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 23. It leads nowhere to say that the federal government - in exercising ■ its constitutional powers acts within “state domain,” since at the same time it is acting within its own domain as well. We conclude that the decree below cannot be sustained on the theory of a lack of constitutional power.
The inquiry remains whether the necessary statutory power has been conferred on the TVA. The Tennessee Valley Authority Act of 1933 was passed for the purposes, among others, “of maintaining and operating the properties now owned by the 'United States in the vicinity of Muscle Shoals, Alabama, in the interest of the national defense * * * to improve navigation in the Tennessee River and to control the destructive flood waters in the Tennessee River and Mississippi River Basins.” Section 1, 16 USCA § 831. The act purports in separate sections to confer on TVA the power to construct dams, reservoirs, and transmission lines, to furnish nitrogen products for military purposes; to allot to the War Department the water power necessary to operate locks, lifts, or other facilities in aid of navigation, and to produce, distribute, and sell electric power, “as herein particularly specified.” The “particular specifications” are to sell the surplus power not used in the operation of locks and other works to states, counties, municipalities, partnerships, or individuals. The act further provides for the construction of Norris Dam, and that the President may from time to time recommend to Congress such legislation as he deems proper for flood control, navigation purposes, generation of electric power consistent with flood control and navigation, the proper use of marginal lands, the proper method of reforestation in the drainage basin, and the economic and social well-being of the people living in the Tennessee River Basin. The right was reserved to the government, in case of war or national emergency declared by Congress, to take possession of all or any part of the property described or referred to in the act “for the purpose of manufacturing explosives or for other war purposes.” Section 20, 16 USCA § 831s. The sections of the act are declared to be separable, to the end that the unconstitutionality of any one section may not affect the validity of ány other.
The act is unobjectionable from a constitutional standpoint in so far as it undertakes to confer on TVA the power to take charge of and operate Wilson Dam, and to distribute and sell surplus electricity to municipalities as well as to utility companies. “And the fact that purposes other than navigation [and national defense] will also be served could not invalidate the exercise of the authority conferred, even if those other purposes would not alone have justified an exercise of Congressional power.” State of Arizona v. California, supra. It does not appear that TVA in respect of its operations at Wilson Dam is doing or proposes to do anything more than is authorized by the act. This being so, its motives are immaterial. The section of the act (section 23, 16 USCA § 831v) which provides that the President shall make recommendations to Congress as to the future policy of developing the Tennessee Valley is unobjectionable, as in any event the President may make such recommendations to Congress as he thinks proper. The act is not subject to the criticism that Congress has abandoned all purposes of navigation and national defense, since navigation is now being improved, and in the event of war the right is reserved to use the Muscle Shoals property exclusively for national defense.
The Rivers and Harbors Act of 1930, 46 Stat. 927, authorized a project for the permanent improvement of the main stream of the Tennessee river to a navigable depth of 9 feet in accordance with the recommendation of the Chief of Engineers in House Document No. 328, of the Seventy-first Congress, Second Session. Because there was no recommendation in that House document for high-type dams, or for their location, it is contended' that the Tennessee Valley Authority Act undertakes to delegate legislative power with reference to the location and type of the Norris, Wheeler, and Pickwick Dams. As we have just seen, the act itself provides for the location of Norris Dam, but whether specifically enough as to type is as we think immaterial; for Wilson Dam alone, without any assistance from Norris, Wheeler, or Pickwick Dam, has a surplus after serving the transmission lines which it agreed to purchase from the Alabama Power Company. Besides, the Alabama Power Company has no standing to object even though these additional dams have not been properly authorized by Congress. Frothingham v. Mellon, 262 U. S. 447, 43 S. Ct. 597, 67 L. Ed. 1078. It is not a riparian owner, or the owner of a dam site which the government is assuming to take; nor has it any such special interest as would entitle it to object to proposed improvements in aid of the national defense or of navigation. United States v. Chandler-Dunbar Co., supra, 229 U. S. 53, at page 73, 33 S. Ct. 667, 57 L. Ed. 1063.
On the whole case, our conclusion is that the decree of the district judge was erroneous. We therefore have no occasion to consider whether the Alabama Power Company, if that decree had been affirmed, would have been entitled to a declaratory judgment.
Appellees take nothing by their cross-appeal. On the direct appeal the decree is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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sc_certreason
|
K
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
BLUM, COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF SOCIAL SERVICES, et al. v. YARETSKY et al.
No. 80-1952.
Argued March 24, 1982
Decided June 25, 1982
Rehnquist, J., delivered the opinion of the Court, in which BURGER, C. J., and Blackmun, Powell, Stevens, and O’Connor, JJ., joined. White, J., filed an opinion concurring in the judgment, ante, p. 843. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 1012.
Judith A. Gordon, Assistant Attorney General of New York, argued the cause for petitioners. With her on the briefs were Robert Abrams, Attorney General, Shirley Adel-son Siegel, Solicitor General, Andrea G. Iason, Assistant Attorney Generál, and Peter H. Schiff.
John E. Kirklin argued the cause for respondents. With him on the brief were Kalman Finkel and David Goldfarb.
Toby S. Edelman filed a brief for the National Citizens’ Coalition for Nursing Home Reform as amicus curiae urging affirmance.
Justice Rehnquist
delivered the opinion of the Court.
Respondents represent a class of Medicaid patients challenging decisions by the nursing homes in which they reside to discharge or transfer patients without notice or an opportunity for a hearing. The question is whether the State may be held responsible for those decisions so as to subject them to the strictures of the Fourteenth Amendment.
I
Congress established the Medicaid program m 1965 as Title XIX of the Social Security Act, 42 U. S. C. §1396 et seq. (1976 ed. and Supp. IV), to provide federal financial assist-anee to States that choose to reimburse certain medical costs incurred by the poor. As a participating State, New York provides Medicaid assistance to eligible persons who receive care in private nursing homes, which are designated as either “skilled nursing facilities” (SNF’s) or “health related facilities” (HRF’s). The latter provide less extensive, and generally less expensive, medical care than the former. Nursing homes chosen by Medicaid patients are directly reimbursed by the State for the reasonable cost of health care services, N. Y. Soc. Serv. Law §367-a.l (McKinney Supp. 1981).
An individual must meet two conditions to obtain Medicaid assistance. He must satisfy eligibility standards defined in terms of income or resources and he must seek medically necessary services. See 42 U. S. C. § 1396. To assure that the latter condition is satisfied, federal regulations require each nursing home to establish a utilization review committee (URC) of physicians whose functions include periodically assessing whether each patient is receiving the appropriate level of care, and thus whether the patient’s continued stay in the facility is justified. 42 CFR §§ 456.305, 456.406 (1981). If the URC determines that the patient should be discharged or transferred to a different level of care, either more or less intensive, it must notify the state agency responsible for administering Medicaid assistance. 42 CFR §§ 456.337(c), 456.437(d) (1981); 10 NYCRR §§ 416.9(f)(2), (3), 421.13(f)(2), (3) (1980).
At the time their complaint was filed, respondents Yaret-sky and Cuevas were patients in the American Nursing Home, an SNF located in New York City. Both were recipients of assistance under the Medicaid program. In December 1975 the nursing home’s URC decided that respondents did not need the care they were receiving and should be transferred to a lower level of care in an HRF. New York City officials, who were then responsible for administering the Medicaid program in the city, were notified of this decision and prepared to reduce or terminate payments to the nursing home for respondents’ care. Following administrative hearings, state social service officials affirmed the decision to discontinue benefits unless respondents accepted a transfer to an HRF providing a reduced level of care.
Respondents then commenced this suit, acting individually and on behalf of a class of Medicaid-eligible residents of New York nursing homes. Named as defendants were the Commissioners of the New York Department of Social Services and the Department of Health. Respondents alleged in part that the defendants had not afforded them adequate notice either of URC decisions and the reasons supporting them or of their right to an administrative hearing to challenge those decisions. Respondents maintained that these actions violated their rights under state and federal law and under the Due Process Clause of the Fourteenth Amendment. They sought injunctive relief and damages.
In January 1978 the District Court certified a class and issued a preliminary injunction, restraining the defendants from reducing or terminating Medicaid benefits without timely written notice to the patients, provided by state or local officials, of the reasons for the URC decision, the defendants’ proposed action,, and the patients’ right to an evi-dentiary hearing and continued benefits pending administrative resolution of the claim. App. 100-101, ¶2. The court’s accompanying opinion relied primarily on existing federal and state regulations. Id., at 112-115.
In March 1979 the District Court issued a pretrial order that identified a new claim raised by respondents that a panoply of procedural safeguards should apply to URC decisions transferring a patient to a higher, i. e., more intensive, level of medical care, as well as to decisions recommending transfers to a lower level of care. In addition, respondents claimed that such safeguards were required prior to transfers of any kind initiated by the nursing homes themselves or by the patients’ attending physicians. Id., at 157, 1II(J); 166-167, ¶ II(J). Respondents asserted that all of these transfers deprived patients of interests protected by the Fourteenth Amendment and were the product of “state action.”. Id., at 167, 1iII(J).
In October 1979 the District Court approved a consent judgment incorporating the relief previously awarded by the preliminary injunction and establishing additional substantive and procedural rights applicable to URC-initiated transfers to lower levels of care. Id., at 227-239. The consent judgment left several issues of law to be decided by the District Court. The most important, for our purposes, was “whether there is state action and a constitutional right to a pre-transfer evidentiary hearing in a patient transfer to a higher level of care and/or a patient transfer initiated by the facility or its agents.” Id., at 234-235, ¶VIII(A)(1). Ultimately, the District Court answered’ that question in respondents’ favor, although without elaborating its reasons. Id., at 240. The court permanently enjoined petitioners, as well as all SNF’s and 'HRF’s in the State, from permitting or ordering the discharge of class members, or their transfer to a different level of care, without providing advance written notice and an evidentiary hearing on “the validity and appropriateness of the proposed action.” Id., at 242-243.
The Court of Appeals for the Second Circuit affirmed that portion of the District Court’s judgment we have described above. 629 F. 2d 817 (1980). The court held that URC-initiated transfers from a lower level of care to a higher one, and all discharges and transfers initiated by the nursing homes or attending physicians, “involve state action affecting constitutionally protected property and liberty interests.” Id., at 820. The court premised its identification of state action on the fact that state authorities “responded” to the challenged transfers by adjusting the patients’ Medicaid benefits. Ibid. Citing our opinion in Jackson v. Metropolitan Edison Co., 419 U. S. 345, 351 (1974), the court viewed this response as establishing a sufficiently close, “nexus” between the State and either the nursing homes or the URC’s to justify treating their actions as those of the State itself.
We granted certiorari to consider the Court of Appeals’ conclusions about the nature of state action. 454 U. S. 815 (1981). We now reverse its judgment.
t-H
We first address a question raised by petitioners regarding our jurisdiction under Art. III. They contend that respondents, who were threatened with URC-initiated transfers to lower levels of care, are without standing to object either to URC-initiated transfers to higher levels of care or to transfers of any kind initiated by nursing homes or attending physicians. According to petitioners, respondents obtained complete relief in the consent judgment approved by the District Court in October 1979, which afforded substantive and procedural rights to patients who are the subject of URC-initiated transfers to lower levels of care. Since they have not been threatened with transfers of any other kind, they have no standing to object, and the District Court consequently was without Art. Ill jurisdiction to enter its judgment.
It is axiomatic that the judicial power conferred by Art. Ill may not be exercised unless the plaintiff shows “that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.” Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91, 99 (1979). It is not enough that the conduct of which the plaintiff complains will injure someone. The complaining party must also show that he is within the class of persons who will be concretely affected. Nor does a plaintiff who has been subject to injurious conduct of one kind possess by virtue of that injury the necessary stake in litigating conduct of another kind, although similar, to which he has not been subject. See Moose Lodge No. 107 v. Irvis, 407 U. S. 163, 166-167 (1972).
Respondents appear to recognize these principles, but contend that although the October 1979 consent judgment halted the implementation of adverse URC decisions recommending discharge or transfer to lower levels of care, the URC determinations themselves were left undisturbed. These determinations reflected the judgment of physicians, chosen by the nursing homes, that respondents’ continued stay in their facilities was not medically necessary. Consequently, respondents maintain that they are subject to the serious threat that the nursing home administrators will reach similar conclusions and will themselves initiate patient discharges or transfers without adequate notice or hearings. Petitioners belittle this suggestion, noting that the consent judgment permanently enjoined all New York nursing homes, as well as petitioners, from implementing URC transfers to lower levels of care; this injunction bars the nursing homes from adopting the URC decisions as their own. Petitioners concede, however, that the consent judgment permits the nursing homes and respondents’ attending physicians to decide independently to initiate transfers.
We conclude that the threat of facility-initiated discharges or transfers to lower levels of care is sufficiently substantial that respondents have standing to challenge their procedural adequacy. In reaching this conclusion, we are mindful of “the primary conception that federal judicial power is to be exercised... only at the instance of one who is himself immediately harmed, or immediately threatened with harm, by the challenged action.” Poe v. Ullman, 367 U. S. 497, 504 (1961). Of course, “[o]ne does not have to await the consummation of threatened injury to obtain preventive relief.” Pennsylvania v. West Virginia, 262 U. S. 553, 593 (1923), quoted in Babbitt v. Farm Workers, 442 U. S. 289, 298 (1979). “[T]he question becomes whether any perceived threat to respondents is sufficiently real and immediate to show an existing controversy....” O'Shea v. Littleton, 414 U. S. 488, 496 (1974). Even accepting petitioners’ characterization of the scope of the permanent injunction embodied in the consent judgment, the nursing homes in which respondents reside remain free to determine independently that respondents’ continued stay at current levels of care is not medically necessary. The possibility that they will do so is not “imaginary or speculative.” Younger v. Harris, 401 U. S. 37, 42 (1971). In light of similar determinations already made by the committee of physicians chosen by the facilities to make such assessments, the threat is quite realistic. See O’Shea v. Littleton, supra, at 496 (“past wrongs are evidence bearing on whether there is real and immediate threat of repeated injury”).
We cannot conclude, however, that the threat of transfers to higher levels of care, whether initiated by the URC’s, the nursing homes, or attending physicians, is “of sufficient immediacy and reality,” Golden v. Zwickler, 394 U. S. 103, 108 (1969), that respondents have standing to seek an adjudication of the procedures attending such transfers. Nothing in the record available to this Court suggests that any of the individual respondents have been either transferred to more intensive care or threatened with such transfers. It is not inconceivable that respondents will one day confront this eventuality, but assessing the possibility now would “tak[e] us into the area of speculation and conjecture.” O’Shea v. Littleton, supra, at 497.
Moreover, the conditions under which such transfers occur are sufficiently different from those which respondents do have standing to challenge that any judicial assessment of their procedural adequacy would be wholly gratuitous and advisory. Transfers to higher levels of care are recommended when the patient’s medical needs cannot be satisfied by the facility in which he or she currently resides. Although respondents contend that all transfers threaten elderly patients with physical or psychological trauma, one may infer that refusal to accept a transfer to a higher level of care could itself be a decision with potentially traumatic consequences. The same cannot be said of discharges or transfers to less intensive care. In addition, transfers to more intensive care typically result in an increase in Medicaid benefits to match the increased cost of medically necessary care. Respondents’ constitutional attack on discharges or transfers to a lower level of care presupposes a deprivation of protected property interests. Finally, since July 1978, petitioners have adhered to a policy permitting Medicaid patients to refuse URC-recommended transfers to higher levels of care without jeopardizing their Medicaid benefits. App. 180, ¶56. No similar policy was in force with respect $o other transfers until the District Court mandated its adoption.
We conclude, therefore, that although respondents have standing to challenge facility-initiated discharges and transfers to lower levels of care, the District Court exceeded its authority in adjudicating the procedures governing transfers to higher levels of care. We turn now to the “state action” question presented by petitioners.
I — i > — l
The Fourteenth Amendment of the Constitution provides in part that “[n]o State shall... deprive any person of life, liberty, or property without due process of law.” Since this Court’s decision in the Civil Rights Cases, 109 U. S. 3 (1883), “the principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States.” Shelley v. Kraemer, 334 U. S. 1, 13 (1948). “That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.” Ibid. See Jackson v. Metropolitan Edison Co., 419 U. S. 345 (1974); Adickes v. S. H. Kress & Co., 398 U. S. 144 (1970).
Faithful adherence to the “state action” requirement of the Fourteenth Amendment requires careful attention to the gravamen of the plaintiff’s complaint. In this case, respondents objected to the involuntary discharge or transfer of Medicaid patients by their nursing homes without certain procedural safeguards. They have named as defendants state officials responsible for administering the Medicaid program in New York. These officials are also responsible for regulating nursing homes in the State, including those in which respondents were receiving care. But respondents are not challenging particular state regulations or procedures, and their arguments concede that the decision to discharge or transfer a patient originates not with state officials, but with nursing homes that are privately owned and operated. Their lawsuit, therefore, seeks to hold state officials liable for the actions of private parties, and the injunctive relief they have obtained requires the State to adopt regulations that will prohibit the private conduct of which they complain.
A
This case is obviously different from those cases in which the defendant is a private party and the question is whether his conduct has sufficiently received the imprimatur of the State so as to make it “state” action for purposes of the Fourteenth Amendment. See, e. g., Flagg Bros., Inc. v. Brooks, 436 U. S. 149 (1978); Jackson v. Metropolitan Edison Co., supra; Moose Lodge No. 107 v. Irvis, 407 U. S. 163 (1972); Adickes v. S. H. Kress & Co., supra. It also differs from other “state action” cases in which the challenged conduct consists of enforcement of state laws or regulations by state officials who are themselves parties in the lawsuit; in such cases the question typically is whether the private motives which triggered the enforcement of those laws can fairly be attributed to the State. See, e. g., Peterson v. City of Greenville, 373 U. S. 244 (1963). But both these types of cases shed light upon the analysis necessary to resolve the present case.
First, although it is apparent that nursing homes in New York are extensively regulated, “[t]he mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment.” Jackson v. Metropolitan Edison Co., 419 U. S., at 350. The complaining party must also show that “there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.” Id., at 351. The purpose of this requirement is to assure that constitutional standards are invoked only when it can be said that the State is responsible for the specific conduct of which the plaintiff complains. The importance of this assurance is evident when, as in this case, the complaining party seeks to hold the State liable for the actions of private parties.
Second, although the factual setting of each case will be significant, our precedents indicate that a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in daw be deemed to be that of the State. Flagg Bros., Inc. v. Brooks, supra, at 166; Jackson v. Metropolitan Edison Co., supra, at 357; Moose Lodge No. 107 v. Irvis, supra, at 173; Adickes v. S. H. Kress & Co., supra, at 170. Mere approval of or acquiescence in the initiatives of a private party is not sufficient to justify holding the State responsible for those initiatives under the terms of the Fourteenth Amendment. See Flagg Bros., supra, at 164-165; Jackson v. Metropolitan Edison Co., supra, at 357.
Third, the required nexus may be present if the private entity has exercised powers that are “traditionally the exclusive prerogative of the State.” Jackson v. Metropolitan Edison Co., supra, at 353; see Flagg Bros., Inc. v. Brooks, supra, at 157-161.
B
Analyzed in the light of these principles, the Court of Appeals’ finding of state action cannot stand. The court reasoned that state action was present in the discharge or transfer decisions implemented by the nursing homes because the State responded to those decisions by adjusting the patient’s Medicaid benefits. Respondents, however, do not challenge the adjustment of benefits, but the discharge or transfer of patients to lower levels of care without adequate notice or hearings. That the State responds to such actions by adjusting benefits does not render it responsible for those actions. The decisions about which respondents complain are made by physicians and nursing home administrators, all of whom are concededly private parties. There is no suggestion that those decisions were influenced in any degree by the State’s obligation to adjust benefits in conformity with changes in the cost of medically necessary care.
Respondents do not rest on the Court of Appeals’ rationale, however. They argue that the State “affiraiatively commands” the summary discharge or transfer of Medicaid patients who are thought to be inappropriately placed in their nursing facilities. Were this characterization accurate, we would have a different question before us. However, our review of the statutes and regulations identified by respondents does not support respondents’ characterization of them.
As our earlier summary of the Medicaid program explained, a patient must meet two essehtial conditions in order to obtain financial assistance. He must satisfy eligibility criteria defined in terms of income and resources and he must seek medically necessary services. 42 U. S. C. § 1396. To assure that nursing home services are medically necessary, federal law requires that a physician so certify at the time the Medicaid patient is admitted and periodically thereafter. 42 U. S. C. § 1396b(g)(l) (1976 ed. and Supp. IV). New York requires that the physician complete a “long term care placement form” devised by the Department of Health, called the DMS-1. 10 NYCRR §§415.1(a), 420.1(b) (1980). A completed form provides, inter alia, a numerical score corresponding to the physician’s assessment of the patient’s mental and physical health. As petitioners note, however, the physicians, and not the forms, make the decision about whether the patient’s care is medically necessary. A physician can authorize a patient’s admission to a nursing facility despite a “low” score on the form. See 10 NYCRR §§415.1(a)(2), 420.1(b)(2) (1978). We cannot say that the State, by requiring completion of a form, is responsible for the physician’s decision.
In any case, respondents’ complaint is about nursing home decisions to discharge or transfer, not to admit, Medicaid patients. But we are not satisfied that the State is responsible for those decisions either. The regulations cited by respondents réquire SNF’s and HRF’s “to make all efforts possible to transfer patients to the appropriate level of care or home as indicated by the patient’s medical condition or needs,” 10 NYCRR §§416.9(d)(1), 421.13(d)(1) (1980). The nursing homes are required to complete patient care assessment forms designed by the State and “provide the receiving facility or provider with a current copy of same at the time of discharge to an alternate level of care facility or home.” 10 NYCRR §§416.9(d)(4), 421.13(d)(4) (1980).
These regulations do not require the nursing homes to rely on the forms in making discharge or transfer decisions, nor do they demonstrate that the State is responsible for the decision to discharge or transfer particular patients. Those decisions ultimately turn on medical judgments made by private parties according to professional standards that are not established by the State. This case, therefore, is not unlike Polk County v. Dodson, 454 U. S. 312 (1981), in which the question was whether a public defender acts “under color of” state law within the meaning of 42 U. S. C. § 1983 when representing an indigent defendant in a state criminal proceeding. Although the public defender was employed by the State and appointed by the State to represent the respondent, we concluded that “[tjhis assignment entailed functions and obligations in no way dependent on state authority.” Id., at 318. The decisions made by the public defender in the course of representing his client were framed in accordance with professional canons of ethics, rather than dictated by any rule of conduct imposed by the State. The same is true of nursing home decisions to discharge or transfer particular patients because the care they are receiving is medically inappropriate.
Respondents next point to regulations which, they say, impose a range of penalties on nursing homes that fail to discharge or transfer patients whose continued stay is inappropriate. One regulation excludes from participation in the Medicaid program health care providers who “[fjumished items or services that are substantially in excess of the beneficiary’s needs.” 42 CFR §420.101(a)(2) (1981). The State is also authorized to fine health care providers who violate applicable regulations. 10 NYCRR §414.18 (1978). As we have previously concluded, however, those regulations themselves do not dictate the decision to discharge or transfer in a particular case. Consequently, penalties imposed for violating the regulations add nothing to respondents’ claim of state action.
As an alternative position, respondents argue that even if the State does not command the transfers at issue, it reviews and either approves or rejects them on the merits. The regulations cited by respondents will not bear this construction. Although the State requires the nursing homes to complete patient care assessment forms and file them with state Medicaid officials, 10 NYCRR §§415.1(a), 420.1(b) (1978), and although federal law requires that state officials review these assessments, 42 CFR §§456.271, 456.372 (1981), nothing in the regulations authorizes the officials to approve or disapprove decisions either to retain or discharge particular patients, and petitioners specifically disclaim any such responsibility. Instead, the State is obliged to approve or disapprove continued payment of Medicaid benefits after a change in the patient’s need for services. See 42 CFR §435.916 (1981). Adjustments in benefit levels in response to a decision to discharge or transfer a patient does not constitute approval or enforcement of that decision. As we have already concluded, this degree of involvement is too slim a basis on which to predicate a finding of state action in the decision itself.
Finally, respondents advance the rather vague generalization that such a relationship exists between the State and the nursing homes it regulates that the State may be considered a joint participant in the homes’ discharge and transfer of Medicaid patients. For this proposition they rely upon Burton v. Wilmington Parking Authority, 365 U. S. 715 (1961). Respondents argue that state subsidization of the operating and capital costs of the facilities, payment of the medical expenses of more than 90% of the patients in the facilities, and the licensing of the facilities by the State, taken together convert the action of the homes into “state” action. But accepting all of these assertions as true, we are nonetheless unable to agree that the State is responsible for the decisions challenged by respondents. As we have previously held, privately owned enterprises providing services that the State would not necessarily provide, even though they are extensively regulated, do not fall within the ambit of Burton. Jackson v. Metropolitan Edison Co., 419 U. S., at 357-358. That programs undertaken by the State result in substantial funding of the activities of a private entity is no more persuasive than the fact of regulation of such an entity in demonstrating that the State is responsible for decisions made by the entity in the course of its business.
We are also unable to conclude that the nursing homes perform a function that has been “traditionally the exclusive prerogative of the State.” Jackson v. Metropolitan Edison Co., supra, at 353. Respondents’ argument in this regard is premised on their assertion that both the Medicaid statute and the New York Constitution make the State responsible for providing every Medicaid patient with nursing home services. The state constitutional provisions cited by respondents, however, do no more than authorize the legislature to provide funds for the care of the needy. See N. Y. Const., Art. XVII, §§ 1, 3. They do not mandate the provision of any particular care, much less long-term nursing care. Similarly, the Medicaid statute requires that the States provide funding for skilled nursing services as a condition to the receipt of federal moneys. 42 U. S. C. §§ 1396a(a)(13)(B), 1396d(a)(4)(A) (1976 ed. and Supp. IV). It does not require that the States provide the services themselves. Even if respondents’ characterization of the State’s duties were correct, however, it would not follow that decisions made in the day-to-day administration of a nursing home are the kind of decisions traditionally and exclusively made by the sovereign for and on behalf of the public. Indeed, respondents make no such claim, nor could they.
IV
We conclude that respondents have failed to establish “state action” in the nursing homes’ decisions to discharge or transfer Medicaid patients to lower levels of care. Consequently, they have failed to prove that petitioners have violated rights secured by the Fourteenth Amendment. The contrary judgment of the Court of Appeals is accordingly
Reversed.
[For opinion of Justice White concurring in the judgment, see ante, p. 843.]
N. Y. Soc. Serv. Law § 365-a.2(b) (McKinney Supp. 1982). Title XIX requires as a condition to the receipt of federal funds that participating States provide financial assistance to eligible persons in need of “skilled nursing facility services.” 42 U. S. C. §§ 1396a(a)(13)(B), 1396d(a)(4)(A) (1976 ed. and Supp. IV). Federal assistance is also available to States that choose to reimburse the cost of “intermediate care facility services.” § 1396d(a)(15). See §§ 1396d(c), (f). New York regulations refer to facilities that provide the latter type of care as HRF’s. 10 NYCRR § 414.1(a) (1981).
Compare 10 NYCRR §§416.1-416.2 with §§421.1-421.2 (1978). The parties have stipulated that Medicaid reimbursement rates for HRF’s are generally lower than those for SNF’s. See App. 169, ¶ 12.
Congress has provided that federal funds supplied to assist in reimbursing nursing home costs will be reduced unless the participating State provides for the periodic review of patient care “to safeguard against unnecessary utilization of such care and services and to assure that payments... are not in excess of reasonable charges consistent with efficiency, economy, and quality of care.” 42 U. S. C. § 1396a(a)(30). See §§ 1896b(g)(l)(C), 1396b(i)(4), 1395x00.
These committees must be composed of private physicians who are not directly responsible for the patient whose care is being reviewed. 42 CFR §§456.306, 456.406 (1981). Under New York law, the committee members may not be employed by the SNF or HRF and may not have a financial interest in any residential care facility. 10 NYCRR §§ 416.9(b)(2), 421.13(b)(2) (1980).
If the committee determines that a discharge or transfer is called for, it must afford the patient’s attending physician an opportunity to present his views, although the committee’s decision ultimately is final. 42 CFR §§ 456.336(f), (h), 456.436(f), (i) (1981). See 10 NYCRR §§ 731.11, 741.14 (1980).
The class was defined to include patients “who have been, are or will be threatened or forced to leave their nursing homes and have their Medicaid benefits reduced or terminated as a result of ‘Utilization Review’ committee findings alleging that they are not eligible for the level of nursing home care they receive.” App. 19, ¶ 1. The complaint also named as a plaintiff the New York chapter of the Gray Panthers, an organization that “has among its objectives the development of a health care system for the elderly which provides quality health care to all persons.” Id., at 21, ¶ 5.
The complaint also alleged that URC transfers to lower levels of care and corresponding reductions in Medicaid benefits were arbitrary and were caused by improperly constituted URC’s that acted without adequate written criteria and failed to afford adequate notice either to the patients or their attending physicians.
Ten individuals, who are also respondents in this Court, later intervened in the suit. Each intervenor was a resident of either an SNF or an HRF and had been the subject of a URC decision recommending transfer to a lower level of care. The intervenors all were afforded administrative hearings resulting in affirmance of petitioners’ decisions to reduce or terminate Medicaid benefits if the intervenors did not follow URC recommendations.
The class was defined to include “all persons who are residents in skilled nursing or intermediate care facilities in the State of New York and who, following utilization review recommendations and/or fair hearings, are determined by defendants to be ineligible to receive the level of care at the facilities in which they reside and to be subject to reduction or termination of their Medicaid benefits.” Id., at 45.
The court also required the defendants to afford class members access to all pertinent case files and medical records. Id., at 101-102. The Court of Appeals for the Second Circuit upheld portions of the injunction challenged by petitioners. Yaretsky v. Blum, 592 F. 2d 65 (1979).
The pretrial order also redefined the class to include “all residents of skilled nursing and health related nursing facilities in New York State who are recipients of Medicaid benefits.” App. 151.
The court modified the injunction by relieving petitioners of obligations that, in the opinion of federal authorities, would render the State ineligible for M.edicaid funding. 629 F. 2d, at 822. The court also reversed the District Court’s holding that state administrators were precluded by due process or state law from rejecting a hearing officer’s recommendation favorable to a patient without reading a verbatim transcript of the hearing and the exhibits. Id., at 822-825. This holding is not before us.
Respondents suggest that members of the class they represent have been transferred to higher levels of care as a result of URC decisions. Respondents, however, “must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.” Warth v. Seldin, 422 U. S. 490, 502 (1975). Unless these individuals “can thus demonstrate the requisite case or controversy between themselves personally and [petitioners], ‘none may seek relief on behalf of himself or any other member of the class.’ O’Shea v. Littleton, 414 U. S. 488, 494 (1974).” Ibid.
“From the beginning of this lawsuit the respondents’ challenge has been to the involuntary discharge or transfer of Medicaid patients from and by their nursing facilities without adequate safeguards.... Thus, the claim before this Court is whether state action attaches to a nursing facility’s summary discharge or transfer of the patient....” Brief for Respondents 21-22 (emphasis in original).
A completed DMS-1 form provides a summary of the patient’s medical condition. Five of the eleven questions devoted to this subject require the assignment of numerical values. See 10 NYCRR App. C-l (1978). A range of numerical values to be used in completing these questions are set forth in a second form, called the DMS-9. See ibid,. The dissent’s discussion of the DMS-9 suggests that completion of the DMS-1 form is a purely mechanical exercise that does not require the exercise of independent medical judgment. The dissent’s discussion is incomplete. The other six questions on the DMS-1 ask the physician such questions as whether the patient requires daily supervision by a registered nurse, whether complications would arise without skilled nursing care, whether a program of therapy is necessary, and if so what kind, whether the patient should be considered for different levels of care, and whether the patient is medically qualified for the level of care he or she is receiving. The physician brings to bear his own medical judgment in answering these questions; their placement on the form would be inexplicable if the numerical scores were dispositive.
The dissent belittles this fact by noting that the decision to depart from the form in admitting a patient is made by a physician member of the nursing home’s URC, and that such persons are “part and parcel of the statutory cost control process.” Post, at 1022. This signifies nothing more than the fact, disputed by no one, that the State requires utilization review in order to reduce unnecessary Medicaid expenditures. It remains true that physician members of the URC’s are not employed by the State and, more important, render medical judgments concerning the patient’s health needs that the State does not prescribe and for which it is not responsible; We must also emphasize, of course, that we are ultimately concerned with decisions to transfer patients who have already been admitted.
Apropos of this relevant issue, the dissent observes, post, at 1023, that once a patient has been admitted, the State requires, as a condition to the disbursement of Medicaid funds, that within five days after admission the nursing home operator assess the patient’s status according to standards contained in the DMS-1 and DMS-9 forms. As the dissent is also aware, post, at 1023, n. 10, a physician member of the URC has the power to determine that the patient needs the level of care he is receiving despite an adverse score on the DMS-1. 10 NYCRR §§ 416.9(a)(2)(i), 421.13(a)(2)(i) (1980). That decision, rendered after consultation with the patient’s attending physician, is purely a medical judgment for which the State, as before, is not responsible.
The dissent condemns us for conducting a “cursory” review of the regulations governing utilization review, post, at 1019, and pointedly asks “where... is the Court’s discussion of the frequent utilization reviews that occur after admission?” Post, at 1024. The dissent, in its headlong
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:
|
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.
OKLAHOMA TAX COMMISSION v. GRAHAM et al.
No. 88-266.
Argued February 21, 1989
Decided March 29, 1989
David Allen Miley argued the cause pro hac vice for petitioner. With him on the briefs was Stanley J. Alexander.
Bob Rabón argued the cause and filed a brief for respondents.
Briefs of amici curiae urging affirmance were filed for the Otoe-Missouria Tribe of Indians by F. Broivning Pipestem; for the Sac and Fox Nation et al. by G. William Rice; for the Seneca Nation of Indians et al. by Reid Peyton Chambers and William R. Pemg; and for the Wyandotte Tribe of Oklahoma et al. by Glenn M. Feldman.
Dennis W. Arrow filed a brief for the Inter-Tribal Council of the Five Civilized Tribes as amicus curiae.
Per Curiam.
The Chickasaw Nation owns and operates the Chickasaw Motor Inn in Sulphur, Oklahoma. At the inn, the Tribe conducts bingo games and sells cigarettes. Oklahoma filed a complaint against the Chickasaw Tribe and Jan Graham, who managed the enterprise for the Tribe, to collect unpaid state excise taxes on the sale of cigarettes and taxes on the receipts from the bingo games. The Chickasaw Nation, asserting federal-question jurisdiction under 28 U. S. C. § 1381, removed the action from the State District Court in Murray County to the United States District Court for the Eastern District of Oklahoma. The State moved to remand the case, arguing in part that the complaint alleged on its face only state statutory violations and state tax liabilities. The District Court, however, denied the motion. It noted that the complaint sought to apply Oklahoma law to an Indian Tribe and so implicated the federal question of tribal immunity. App. to Pet. for Cert. A25-A26. Shortly thereafter the District Court dismissed the State’s suit, finding it barred by tribal sovereign immunity. Id., at A27-A30.
A divided panel of the Tenth Circuit affirmed. Oklahoma ex rel. Oklahoma Tax Comm’n v. Graham, 822 F. 2d 951 (1987). The majority concluded that removal had been proper because the State’s complaint, although facially based on state law, contained the “implicit federal question” of tribal immunity. It noted that, as a prerequisite to stating jurisdiction over a recognized Indian tribe, it had held in other cases that “an alleged waiver or consent to suit is a necessary element of the well-pleaded complaint.” Id., at 954. Judge Tacha dissented on the ground that a case could not be removed on the basis of a federal defense and that “[i]t is not disputed that the face of the state’s complaint in this case raises only state tax questions.” Id., at 958.
We vacated the Tenth Circuit’s decision and remanded for reconsideration in light of our discussion of removal jurisdiction and the well-pleaded complaint rule in Caterpillar Inc. v. Williams, 482 U. S. 386 (1987). Oklahoma Tax Comm’n v. Graham, 484 U. S. 973 (1987). On reconsideration, the panel of the Tenth Circuit adhered to its previous disposition that removal was proper. Oklahoma ex rel. Oklahoma Tax Comm’n v. Graham, 846 F. 2d 1258 (1988). The court read Caterpillar as holding that, to support federal-question removability, a complaint must on its face present a federal claim. But that rule did not apply to Oklahoma’s complaint, thought the panel, because, although “nothing within the literal language of the pleading even suggests implication of a federal question,” “such a question is inherent within the complaint because of the parties subject to the action.” 846 F. 2d, at 1260. Again, Judge Tacha dissented. We granted certiorari, 488 U. S. 816 (1988).
We think the decision of the Court of Appeals is plainly inconsistent with Caterpillar and reverse it. “Except as otherwise expressly provided by Act of Congress,” a case is not properly removed to federal court unless it might have been brought there originally. 28 U. S. C. § 1441(a). In the present case, the sole alleged basis of original federal jurisdiction is 28 U. S. C. § 1331, giving district courts “original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” The presence or absence of federal-question jurisdiction is governed by the “well-pleaded complaint” rule. “[Wjhether a case is one arising under [federal law], in the sense of the jurisdictional statute, . . . must be determined from what necessarily appears in the plaintiff’s statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose.” Taylor v. Anderson, 234 U. S. 74, 75-76 (1914); Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149 (1908).
In Caterpillar, we ruled that the application of the well-pleaded complaint rule defeated federal-question jurisdiction, and therefore removability, in a case in which employees sued on personal, state-law employment contracts. We refused to characterize these state-law claims as arising under federal law even though an interpretation of the collective-bargaining agreement might ultimately provide the employer a complete defense to the individual claims, and even though employee claims on the collective-bargaining agreement would have been the subject of original federal jurisdiction. Caterpillar, supra, at 396-398. The state-law tax claims in the present case must be analyzed in the same manner. Tribal immunity may provide a federal defense to Oklahoma’s claims. See Puyallup Tribe, Inc. v. Washington Game Dept., 433 U. S. 165 (1977). But it has long been settled that the existence of a federal immunity to the claims asserted does not convert a suit otherwise arising under state law into one which, in the statutory sense, arises under federal law. Gully v. First National Bank, 299 U. S. 109 (1936). The possible existence of a tribal immunity defense, then, did not convert Oklahoma tax claims into federal questions, and there was no independent basis for original federal jurisdiction to support removal.
The jurisdictional question in this case is not affected by the fact that tribal immunity is governed by federal law. As the dissent below observed, Congress has expressly provided by statute for removal when it desired federal courts to adjudicate defenses based on federal immunities. See Willingham v. Morgan, 395 U. S. 402, 406-407 (1969) (removal provision of 28 U. S. C. § 1442(a)(1) for federal officers acting “under color” of federal office sufficient to allow removal of actions in which official immunity could be asserted); Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 493, n. 20 (1983) (original federal jurisdiction under 28 U. S. C. § 1330(a) over claims against a foreign sovereign which allege an exception to immunity). Neither the parties nor the courts below have suggested that Congress has statutorily provided for federal-court adjudication of tribal immunity notwithstanding the well-pleaded complaint rule.
As this case was improperly removed from the Oklahoma courts, the merits of the claims of tribal immunity were not properly before the federal courts, and we express no opinion on that question.
The judgment of the Court of Appeals is
Reversed.
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_opinstat
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
DANNER PRESS, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 16699.
United States Court of Appeals Sixth Circuit.
March 15, 1967.
Edward C. Kaminski, Akron, Ohio, Herman E. Rabe, Buckingham, Doolittle & Burroughs, Akron, Ohio, on brief, for petitioner.
Robert S. Hillman, N. L. R. B., Washington, D. C., for respondent.
Before WEICK, Chief Judge, and CELEBREZZE and PECK, Circuit Judges.
CELEBREZZE, Circuit Judge.
Petitioner, Danner Press, Inc., (hereinafter referred to as either Petitioner or Danner Akron), seeks review of an order of the National Labor Relations Board. The Board’s decision and order are reported at 153 N.L.R.B. No. 87. The Board, adopting the findings of the Trial Examiner, found that Danner Akron violated Section 8(a) (5) and (1) of the National Labor Relations Act by refusing to bargain with the Union concerning its grievance that Danner Akron was assigning struck work to its employees in breach of their collective bargaining contract. The Board also found that the bindery employees of Danner Akron struck in protest against Danner Akron’s refusal to bargain, and that Danner Akron violated Section 8(a) (3) and (1) of the Act by discharging and refusing to reinstate these employees when they abandoned their strike and offered unconditionally to return to work.
The record discloses the following facts: Petitioner operates a printing business as a job shop in the City of Akron, Ohio. Petitioner employs seven or eight full-time employees and eleven or twelve part-time employees. Approximately one third of Petitioner’s business is derived from Danner Press of Canton, Inc. (hereinafter referred to as Danner Canton), which operates a similar but larger job shop. Local No. 5 of the Bookbinders Union represents the binding employees of both Petitioner and Danner Canton, but in separate bargaining units; and the Union has separate collective bargaining contracts with each Company.
On February 3, 1964, the Danner Canton bookbinders’ bargaining unit commenced an economic strike against Danner Canton. A few days after the strike began, both the employees of Danner Akron and Canton believed that Danner Canton was sending strikebound work to Akron for completion by Danner Akron.
Consequently, on February 17, 1964, Mr. Glenn Moss, International Representative of the Bookbinders, and general employees of Danner Canton, talked to Mr. Swineford at the plant of Danner Akron. Mr. Moss testified that he told Mr. Swineford he was there on a grievance in regard to struck work being performed at Danner Akron. Mr. Swine-ford told Mr. Moss and the committee to leave as they were trespassing. Mr. Moss asked Mr. Swineford when he could get his answer on the grievance, and Mr. Swineford said “tomorrow”. Mr. Swine-ford denied that Mr. Moss asked to discuss or arrange a meeting to discuss with him negotiations concerning the performance of struck work in the Akron plant. Mr. Swineford testified that Mr. Moss asked him to shut down the bindery because they were doing struck work for the Canton plant.
On February 18, 1964, a Danner Akron employee arranged a meeting with Mr. Swineford and with Mr. Moss and Mr. Thur, President of Local No. 5. Mr. Moss, Mr. Thur and several employees of Danner Canton again met with Mr. Swineford. The same views of the conversation and the same result followed as in the meeting the previous day.
After this short meeting of February 18th, the bindery employees of Petitioner met with Petitioner’s President Under-man. Mr. Underman told his employees they had a contract and were obligated to do all the work or they would have to get out. Several employees told Mr. Underman they were doing struck work, and asked him why he would not meet with their Union officials.
On February 19, 1964, Danner Canton employees began picketing Danner Akron. Most of Petitioner’s employees refused to cross the picket line. Later that day, and until March 16, 1964, Petitioner’s employees remained out on strike and picketed Petitioner’s plant until the Danner Canton strike was settled. Neither the International nor the Local was aware of, or took any part in the placement of the original picket line at the Danner Akron plant on the morning of February 19th.
On March 16th, all the striking employees of Petitioner appeared at the plant to start their first shift. Mr. Swineford informed them they had been discharged and replaced.
The evidence of struck work was also conflicting. In September, 1963, Petitioner purchased a McCain machine for their bindery. Because of the large capacity of this machine, and the heavy capital investment, Petitioner agreed to purchase the machine with the understanding that Danner Canton would send more bindery work to Petitioner.
Approximately one-third of Petitioner’s bindery work during 1963 came from Danner Canton. From February 1, 1963 to March 31, 1964 Petitioner did 400 jobs for Danner Canton. Bindery work done for Danner Canton in February, 1963, totaled $861.51, in March, 1963, $7,042.41, in February, 1964, $5,966.42, and March, 1964, $2,480.52.
After the strike began at Danner Canton on February 3rd, the bindery operated only for one shift instead of the normal three shifts. The bindery was not operating at full capacity. On January 30, 1964, Danner Canton received material from Allied Graphic Arts to print and bind a spring and summer catalogue. The proofs were scheduled to go out on January 30th, but did not go out until February 3rd. The proofs came back on February 5th and the job went to press on February 7th. Binding was scheduled to start February 10th, Since the bindery work could not be done in time, the overflow went to Danner Akron. Approximately 1,300,000 pieces were run in Canton and approximately 300,000 pieces were run in Akron.
Mr. Hoffman, Customer Service Representative of Danner Canton, who testified to the above facts, was asked the following questions by the Trial Examiner:
“Q. With only one bindery shift working and with orders on hand which required prompt attention, was there any overflow work caused by this strike which resulted in your shipping work to Akron to be done ?
“A. On any given job or all jobs?
“Q. On any job?
“A. Yes.”
Immediately the Customer Service Representative was asked by Petitioner’s counsel on re-direct examination:
“Q. Mr. Hoffman, with regard to these orders that you had said were to be processed for Canton after February 3rd during the time that the strike was in progress, was the work that was sent to Akron in the nature of overflow work as you have testified?
“A. Yes, it was.
“Q. And are you able to say whether or not this work that went to Akron on the Atkins catalogue job would probably have gone there had there been no strike in the plant at Canton?
“A. Yes.
“Q. —Do you know of your own knowledge, whether the work which was sent to Akron from Canton, which I believe you characterized as overflow, was sent to Akron because of the strike that was in effect in the bindery at Canton ?
“A. No, I do not.”
Early in the proceeding before the Trial Examiner, a lengthy discussion developed between counsel and the Trial Examiner as to the nature of the charge against the Petitioner. The General Counsel for the National Labor Relations Board finally took the position they were trying the case on the theory that the Petitioner failed to bargain on a matter which had not been the subject of previous bargaining, rather than on the theory that the Petitioner failed to negotiate a grievance. The nature of the unfair labor practice charge was crystalized in the following colloquy between the Trial Examiner and counsel:
“Trial Examiner: Now tell me are you definitely ruling this projected theory concerning which I had heard comment from you earlier, namely that by the assignment of struck work to employees that the Respondent was violating the provisions of the contract that it would not require the employees to violate their constitution or bylaws?
“Mr. Szabo: That is correct. We are not.
“Trial Examiner: You are not pursuing it. So that this case may proceed as though this may never have been said by you ?”
The Trial Examiner then found that Petitioner violated Section 8(a) (5) and (1) of the Act by refusing to accept and negotiate the grievance of struck work, and that a finding that Petitioner assigned struck work to its employees was not essential to this holding. The Trial Examiner further found that the employees struck in protest of this unfair labor practice, and that the Petitioner violated Section 8(a) (3) and (1) of the Act by discharging and refusing to reinstate these employees when they offered to return to work.
The pertinent provisions of the collective bargaining contract between Danner Akron and the Union required the parties
“(1) To appoint a Joint Standing Committee for the Conciliation, consisting of two representatives appointed by the Employer, and two representatives appointed by the Union, to which shall be referred all questions which may arise as to the construction to be placed on any section of this Contract, except as provided otherwise herein or alleged violations thereof, which cannot be settled otherwise herein, and such Joint Standing Committee shall meet when any question of difference shall have been referred to it for decision by the executive officers of either party to this Agreement.
“(2) To present immediately in writing any grievance to the Joint Standing Committee for conciliation. The Committee shall meet to consider any grievance within 48 hours after notice in writing has been filed by either party to the other party. Differences as to scales of wages shall not be considered to be grievances. If an understanding cannot be reached within ten full business days after the grievance has been presented, then the settlement of the grievance shall be left to a Board of Arbitration.”
The bargaining contract provided for certain procedures by which grievances were to be presented and settled. The record discloses these procedures were not followed. The meetings on February 17th and 18th with Danner Akron included the International Representative of the Union, the Local President of the Union and four employees of Danner Canton. No employees of Danner Akron were present at either meeting. No written grievance was presented to Danner Akron.
The Board now takes the position that Petitioner’s contention that the Union failed to file its grievance in accordance with the provisions of their collective bargaining agreement is foreclosed by the express declaration of Petitioner’s counsel that it was not defending the alleged refusal to bargain on this ground. The position of waiver is not well taken. This statement was made prior to the clarification sought by Petitioner’s counsel as to exactly what issues were being tried. Furthermore, this contention should not be available to the General Counsel when the Trial Examiner found that Petitioner refused to negotiate a grievance after the General Counsel said that issue was not in the case.
The confusion, which still persists, as to the nature of the Board’s charge would not have arisen had the provisions of the contract been followed. The parties agreed to an exclusive method of procedure for the presentation of grievances and unless the aggrieved party can show a waiver of such contract procedures, no relief can be obtained where that procedure was not followed. If this procedure had been followed, no question would have arisen as to the nature of the Union’s claim, and the matter may have been settled, or ultimately resolved by the intended and preferential method of arbitration. What was said by the Board in W. L. Mead, Inc., 113 N.L.R.B. 1040 (1955) and approved by the Supreme Court in Local 174, Teamsters, Chauffeurs, etc., of America v. Lucas Flour Co., 369 U.S. 95, 82 S.Ct. 571, 7 L.Ed.2d 593 (1961), as to the duty to arbitrate, is equally applicable here:
“Every encouragement should be given to the making and enforcement of such clauses. But, if employees may effectively call upon the Board to protect them when they arbitrarily breach clear and binding arbitration clauses of this kind, and turn to the use of economic force for the settlement of grievances rather than to the contractual, quasi judicial procedure, the effect will be to discourage the making of, and the adherence to, contractual arbitration procedures. To hold that a strike in furtherance of such a material breach of a clear and binding contractual arbitration clause is to be protected by this Board would be contrary to the labor policy embodied in the National Labor Relations Act as interpreted by the Courts of Appeals and the Supreme Court.”
We can see no difference between the failure to abide by the contractual requirement to arbitrate and the contractual requirement to follow certain procedures in the presentation of a grievance. See also Midwest Metallic Products, Inc., 121 N.L.R.B. 1317 (1958); and Sohio Chemical Co., 141 N.L.R.B. 810 (1963). While this may appear to be a harsh rule, it is necessary to maintain the integrity of the contract and to provide a uniform and orderly method for settlement of grievances.
The Trial Examiner found that when the picketing of Danner Akron began by Danner Canton employees on February 19th, the failure of Danner Akron employees to enter the plant and work was not due to their employer’s refusal to bargain but out of sympathy with Danner Canton’s employees. Thus the initial walkout and the refusal to cross the picket line was found by the Trial Examiner not to be in protest of the Petitioner’s refusal to entertain a grievance. The Trial Examiner then found that after February 19th, the Danner Akron employees continued to strike because Petitioner refused to meet and negotiate their grievance of struck work, and they then became unfair labor practice strikers.
If the employees of Petitioner were not unfair labor practice strikers when they refused to return to work, we do not see how a change in attitude or motive could cure the defect of their failure to follow the requirements of their contract. We find no evidence in the record that a grievance was filed in accordance with the provisions of the contract. Danner Akron had no obligation to discuss with the employees of Danner Canton a claimed grievance pertaining to the employees of Danner Akron. Nor was petitioner obligated by its contract to accept a grievance from the Danner Canton Union committee.
Since the employees did not follow the grievance procedure, and did not present a grievance in writing, their use of economic force could not be protected under the Act as an unfair labor practice strike. Local 174, Teamsters, Chauffeurs, etc., of America v. Lucas Flour Co., supra. It follows that the Company did not commit an unfair labor practice in hiring replacements for the striking employees.
The Order of the Board is set aside and enforcement is denied.
. International Brotherhood of Bookbinders, Akron Bindery Workers Union, Local No. 5, AFL-CIO.
. While there are ties of management and ownership between the two Companies, the two Companies do not constitute a single employer for purposes of the Act.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
songer_genresp1
|
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.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
George Washington O’NEAL, Jr., et al., Plaintiffs-Appellants, Cross-Appellees, v. DeKALB COUNTY, GEORGIA, et al., Defendants-Appellees, Cross-Appellants.
No. 87-8682.
United States Court of Appeals, Eleventh Circuit.
July 25, 1988.
James W. Howard, Howard, Secret & Wilde, Atlanta, Ga., for plaintiffs-appellants, cross-appellees.
Albert Sidney Johnson, DeKalb County Attorneys Office, Decatur, Ga., Judson Graves, Alston & Bird, Paul J. Quiner, Wade H. Watson, III, Johnson & Montgomery, Atlanta, Ga., for defendants-appellees, cross-appellants.
Before KRAVITCH and CLARK, Circuit Judges, and NICHOLS , Senior Circuit Judge.
Honorable Philip Nichols, Jr., Senior U.S. Circuit Judge for the Federal Circuit, sitting by designation.
KRAVITCH, Circuit Judge:
The survivors of a man killed in a police shootout in DeKalb Counly, Georgia brought this action pursuant to 42 U.S.C. § 1983 against the officers involved in the shootout, certain county officials, and the County. The district court granted the defendants’ motion for summary judgment on the ground that the decedent’s constitutional rights had not been violated and therefore no section 1983 action could be maintained, 667 F.Supp. 853. We affirm.
I.
On the evening of December 15, 1983, the decedent, George Washington O’Neal, Sr., a patient at Doctor’s Hospital in De-Kalb County, Georgia, went on a rampage through the hospital and stabbed seven people with a pocketknife. Officer Steven Waits, a DeKalb County police officer, arrived at the hospital in response to a police call. Waits, armed with his service revolver, found O’Neal on the second floor, holding a bloody knife. Waits identified himself as a police officer and ordered O’Neal to drop his knife. Ignoring Waits’s demand, O’Neal ran away down the hallway. As Waits chased O’Neal through the second floor corridors, he observed “a lot of blood on the floor ... a piece of intral [sic] of some kind” and a person with a severe stomach wound lying on the floor. Deposition of Steven W. Waits, at 54. He also noticed that the nursing supervisor had a stab wound in his back. Police Report, Plaintiffs Exhibit 2.
After Waits had chased O’Neal for approximately five minutes, Officer Rick Ro-seberry, armed with a shotgun, arrived at the hospital to assist Waits. Roseberry also saw “blood all over the floor” and walls and “a piece of human tissue lying there in [sic] the floor in front of me.” Deposition of Rickie Emmit Roseberry, at 66. Soon after Roseberry’s arrival, the two officers cornered O’Neal at the end of one of the second floor corridors so that O’Neal was standing only six feet from Roseberry and between five and six feet from Waits. With their weapons raised, the officers repeatedly ordered O’Neal to drop his knife and lie on the floor. Instead of complying, O’Neal rushed toward Rose-berry with the knife raised over his head; in response, both officers fired their weapons at O’Neal. Although struck by both shots, O’Neal did not fall, but rather twisted around from the force of the shots, still waving his knife above his head. Immediately after the first volley of shots, Rose-berry fired a second shot, which hit O’Neal in the small of the back and brought him to the ground. O’Neal died as a result of the gunshot wounds.
O’Neal’s survivors brought this section 1983 action against Waits, Roseberry, the Director of Public Safety of DeKalb County, the Chief of Police and Assistant Chief of Police of DeKalb County, and DeKalb County. The complaint alleged that Waits and Roseberry had deprived O’Neal of his constitutional rights by using excessive force against him, and that this use of excessive force was the result of a custom or policy of DeKalb County. Concluding that O’Neal’s constitutional rights had not been violated because the officers had not used excessive force, the district court granted summary judgment for all the defendants. In a separate order, the district court denied the defendants’ motion for attorney’s fees under 42 U.S.C. § 1988 and Federal Rule of Civil Procedure 11. The plaintiffs appeal, arguing that the district court erred in granting summary judgment on the issue of excessive force. The defendants cross-appeal from the denial of attorney’s fees.
II.
To succeed on their section 1983 claim, the plaintiffs must establish that O’Neal was deprived of a constitutional right. Baker v. McCollan, 443 U.S. 137, 138, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979); Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir. Unit A 1981). The plaintiffs advance two plausible constitutional theories to support their section 1983 action; they assert that the officers’ use of force against O’Neal violated his right to substantive due process and his rights under the fourth amendment. We will consider these assertions separately. See Gilmere v. City of Atlanta, 774 F.2d 1495, 1499 (11th Cir.1985) (en banc) (analyzing claim of excessive force under both substantive due process and fourth amendment), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986).
A. Substantive Due Process
The starting point for any discussion of a substantive due process claim in the context of police abuse is Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), in which the Supreme Court held that incriminating evidence obtained by subjecting a criminal suspect to a stomach pump was inadmissible. As the Court explained, substantive due process is violated when the government engages in actions that “ ‘offend those canons of decency and fairness which express the notions of English-speaking peoples even toward those charged with the most heinous offenses.’ ” Id. at 169, 72 S.Ct. at 208 (quoting Malinski v. New York, 324 U.S. 401, 416-17, 65 S.Ct. 781, 788-89, 89 L.Ed. 1029 (1945)). In other words, government conduct that “shocks the conscience,” id. at 172, 72 S.Ct. at 209, or “offend[s] even hardened sensibilities,” id., 72 S.Ct. at 210, transgresses the bounds of substantive due process.
Since Rochin, the lower courts have developed more definite standards for identifying substantive due process violations. In determining whether force used by police officers amounts to a constitutional deprivation, a court must consider “‘the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.’” Gilmere v. City of Atlanta, 774 F.2d 1495, 1500-01 (11th Cir.1985) (en banc) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973)), cert. denied, 476 U.S. 1115, 106 S.Ct. 1970, 90 L.Ed.2d 654 (1986).
The plaintiffs’ substantive due process argument is two-tiered. First, they maintain that the use of gunfire against a suspect armed only with a knife was constitutionally excessive because less harmful methods of apprehension were available. Second, they argue that assuming the first volley of gunfire was constitutional, Rose-berry’s second shot was not. We reject both parts of the plaintiffs’ argument.
Unquestionably, the situation at Doctor’s Hospital on the evening of December 15, 1983 suggested the need for the application of force. O’Neal had just stabbed several people and, at the time he was shot, was charging at Roseberry with his knife raised over his head. He refused to respond to the officers’ demands that he surrender, leaving them with the definite impression that force was required to stop him from hurting Roseberry or someone else. Moreover, the amount of force used did not exceed the need for the use of force. The plaintiffs maintain that O’Neal’s rights were violated because the officers could have disarmed him by negotiating with him or by using a baton or stungun, instead of resorting to gunfire. However, they point to no authority holding that the Constitution requires police officers to use a minimum of force to apprehend a violent, dangerous suspect who is threatening the lives of the officers and others nearby. In this case, the use of gunfire to disarm O’Neal was not excessive in light of the obvious danger he posed to the lives of others. In addition, the undisputed evidence demonstrates that the officers fired their guns in a good faith effort to stop O’Neal, not out of a malicious desire to cause harm. Although the injury inflicted was the worst possible, death, the result of the use of force is but one factor to be considered in determining if such force was excessive. Despite the tragic outcome of Waits’s and Roseberry’s encounter with O’Neal, we remain convinced that they did not use excessive force in attempting to subdue him. In short, then-reaction to O’Neal’s violent behavior does not “shockQ the conscience” or “offend ... hardened sensibilities.” Rochin, 342 U.S. at 172, 72 S.Ct. at 209-10.
Our opinion does not change because Roseberry fired a second shot at O’Neal. As the plaintiffs admitted in their brief and at oral argument, Roseberry fired his second shot “immediately” after his first, and at the time of the second shot, O’Neal was still on his feet, holding his knife and spinning from the force of the first volley of shots. These undisputed facts convince us that Roseberry’s second shot was part of his initial reaction to O’Neal’s attempt to stab him, and not, as the plaintiffs would have us believe, a brutal, gratuitous use of force against a visibly disabled suspect. Viewed as part of his initial reaction to O’Neal’s attack, and in light of the unusual circumstances facing the officers that evening, Roseberry’s firing of two shots in rapid succession in an attempt to guarantee O’Neal’s apprehension did not constitute excessive force.
B. The Fourth Amendment
The plaintiffs also base their section 1983 action on the fourth amendment, which provides in pertinent part that “[t]he right of the people to be secure in then-persons ... against unreasonable searches and seizures shall not be violated.” As the Court recently noted in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), “there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” Id. at 7, 105 S.Ct. at 1699. Reasonableness is determined by “ ‘balancing] the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’ ” Id. at 8, 105 S.Ct. at 1699 (quoting United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983)).
Under this balancing test, the plaintiffs’ fourth amendment claim must fail. Although O’Neal’s “fundamental interest in his own life need not be elaborated upon,” id. at 9, 105 S.Ct. at 1700, even such a weighty interest may be counterbalanced by governmental interests in effective law enforcement, as in this case. Waits and Roseberry used deadly force to protect themselves and the people at the hospital from O’Neal, who was armed and, as the blood-covered floors and injured bodies demonstrated, extremely dangerous. Considering the trying circumstances that the officers faced, their reaction, including Ro-seberry’s second shot, was reasonable and hence within the bounds of the fourth amendment.
III.
On cross-appeal, the defendants argue that the district court abused its discretion in not granting them attorney’s fees under 42 U.S.C. § 1988 or Federal Rule of Civil Procedure 11. Pursuant to section 1988, a district court may award attorney’s fees to prevailing defendants if “ ‘the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.’ ” Hughes v. Rowe, 449 U.S. 5, 14, 101 S.Ct. 173, 178, 66 L.Ed.2d 163 (1980) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 700, 54 L.Ed.2d 648 (1978)). “The fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of fees.” Id., 101 S.Ct. at 178. Similarly, a court may require a party or its counsel to pay reasonable attorney’s fees to the prevailing party pursuant to Federal Rule of Civil Procedure 11 as a sanction for filing an action that has no factual or legal foundation. See Donaldson v. Clark, 819 F.2d 1551, 1555-56 (11th Cir.1987) (en banc).
Simply because the district court granted the defendants’ motion for summary judgment does not mean that the plaintiffs’ action was frivolous. As the district court pointed out in its order denying fees, in ruling on the motion for summary judgment, it “reviewed a great deal of caselaw [sic] on the issue of when deadly force constitutes unreasonable and excessive force within the meaning of the Constitution,” and “did not find any case with a fact situation similar to the one at hand.” We agree with the district court that although the plaintiffs’ section 1983 suit does not merit relief, their causes of action were plausible. Given this, we cannot say that the district court abused its discretion in denying attorney fees under section 1988 or Rule 11. Cf. Hughes v. Rowe, 449 U.S. at 15, 101 S.Ct. at 179 (allegations properly dismissed for failure to state a claim deserved and received careful attention of the courts and thus were not groundless or without foundation).
For the foregoing reasons, the judgment of the district court is AFFIRMED.
. The plaintiffs claim that O’Neal’s outburst was caused by medication he was given while a patient at the hospital.
. The complaint also asserted pendent state claims against Roseberry and Waits for wrongful death and against Doctor’s Hospital for wrongful death and medical malpractice. Upon granting summary judgment for the defendants, the district court dismissed the pendent claims without prejudice.
. In pertinent part, 42 U.S.C. § 1983 provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law.
.The complaint alleged that the defendants had violated O’Neal’s rights "to life, equal protection of the laws, and freedom from cruel and unusual punishment under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution." The district court noted that “[i]n response to defendants’ motion for summary judgment, plaintiffs appear to assert that O’Neal’s life was unreasonably seized in violation of the Fourth Amendment." Accordingly, the district court analyzed the plaintiffs’ claim under the fourth amendment, even though it was not mentioned in their complaint. In their briefs to this court, the plaintiffs continue to argue that O’Neal’s rights under the fourth amendment were violated. Thus, we will also proceed on the assumption that the plaintiffs’ claim is brought under both the fourth and fourteenth amendments.
As for the remaining constitutional claims asserted in their complaint, the plaintiffs concede that their eighth amendment claim must fail as a matter of law; their equal protection claim is also groundless and does not merit discussion.
. The plaintiffs stress that Roseberry’s second shot hit O’Neal in the back, as if this conclusively demonstrates that this shot was fired "maliciously and sadistically for the very purpose of causing harm.” Gilmere, 774 F.2d at 1501. As the plaintiffs admit, however, Roseberry fired his second shot “immediately" after his first. At the time Roseberry fired his second shot he could not have known that O’Neal would twist around from the force of the first round of shots and consequently be hit in the back by the second shot. Ilius, the fact that Roseberry’s second shot hit O’Neal in the back does not transform Rosebenys conduct into a violation of substantive due process.
. The dissent maintains that summary judgment was improper because there is a conflict in the record regarding the proportionality of the force used, and "such conflict is for the ultimate fact finder, not this court, to resolve and then weigh against the fact that O’Neal lost his life.” The dissent, however, seems to confuse the process of finding historical facts, a function of the jury, with the distinct process of determining whether those historical facts constitute a substantive due process or fourth amendment violation, a function of the court. See Gilmere, 774 F.2d at 1500-01 (court must determine whether there was substantive due process violation by looking to four factors); Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 1699, 85 L.Ed.2d 1 (1985) (reasonableness under fourth amendment is question of law). The proportionality of the force used, the focus of the second prong of the Gilmere due process test and a factor in determining reasonableness under the fourth amendment, is for the court, not the jury, to consider. In a case such as this, where the historical facts are undisputed, it is this court's duty to decide, as a matter of law, whether the facts support the appellants’ constitutional claim.
. Citing Gamer, the plaintiffs argue that the officers violated O’Neal’s fourth amendment rights because they shot at him although he was not trying to escape. The passage from Gamer that the plaintiffs rely upon states as follows:
[I]f the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.
471 U.S. at 11-12, 105 S.Ct. at 1701.
We are not persuaded by this argument. Initially, we take issue with the plaintiffs’ underlying factual assumption that O’Neal was not trying to escape when he was shot. O'Neal’s attempt to stab Roseberry could very well be interpreted as an attempt to escape from the officers and continue his rampage through the hospital. Next, we note that the plaintiffs have misread Gamer to hold that a police officer can no longer use deadly force to defend himself against a suspect’s use of deadly force, unless the suspect is also trying to escape. A more sensible interpretation of the above quoted passage is that a police officer may, under certain circumstances, use deadly force to prevent the escape of a suspect; it does not mean that the use of deadly force is limited to those instances where a suspect is trying to escape.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_appbus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
SOUTH PORTO RICO SUGAR CO. (OF PUERTO RICO) v. SIERRA-BERDE-CIA.
No. 4650.
United States Court of Appeals First Circuit.
April 6, 1953.
R. Castro Fernandez, San Juan, P. R. (James R. Beverley and Francisco Castro-Amy, San Juan, P. R., on brief), for appellant.
Joaquin Gallart Mendia, San Juan, P. R. (A. Torres Braschi, San Juan, P. R., on brief), for appellee.
Before MAGRUDER, Chief Judge, and MARIS and WOODBURY, Circuit Judges.
WOODBURY, Circuit Judge.
This is an appeal from a final decision of the Supreme Court of Puerto Rico affirming a judgment of the District Court of Puerto Rico, Section of Ponce, which sustained the complaint filed by the plaintiff herein, and ordered the defendant to pay those of its employees represented by the plaintiff a gross sum of thirty odd thousand dollars, and an equal amount as liquidated damages, in accordance with the terms of a stipulation of facts entered into by the parties with respect to the employees concerned and the amount due to each one.
It is alleged by the appellant, and not disputed by the appellee, that a law of the United States is involved in this litigation. We concede that this is so since the appellant in the role of defendant in the insular District Court, and again in the role of appellant in the Supreme Court of Puerto Rico, asserted an undue delegation of legislative power by the Legislature of Puerto Rico thereby raising a question under the Organic Act of March 2, 1917, 39 Stat. 951, 48 U.S.C.A. § 731 et seq. Moreover, this is an action brought by an officer of the insular government pursuant to statutory authority, Act No. 8 of 1941, §§ 23 and 25, as finally amended by Act No. 48 of 1948, for the benefit of numerous persons who are similarly situated wherein a gross amount clearly in excess of $5,000 exclusive of interest and costs is involved. We do not doubt our jurisdiction over this appeal under Title 28 U.S.C. § 1293.
The plaintiff, as the Commissioner of Labor of Puerto Rico, filed the complaint in this action in accordance with the procedure prescribed by Act No. 10 of November 14, 1917, as finally amended by Act No. 182, of May 12, 1948, on behalf of and for the benefit of several hundred named employees of the defendant, South Porto Rico Sugar Company, a local corporation engaged in the business of manufacturing cane sugar in Guánica, Puerto Rico. The gist of the complaint is that from April 29, 1943, to May 29, 1946, the defendant employed the named employees “while shifting their turn of work during more than eight hours in different twenty-four hour periods, without paying them for the hours thus worked in excess of eight at twice the applicable regular wage rate, in violation of the provisions of paragraph B-2(a) of Mandatory Decree No. 3 of the Minimum Wage Board of Puerto Rico.” It appears that manufacturing cane sugar is a twenty-four hour process and that the defendant by agreement with its employees divided its labor force into three eight-hour shifts which were rotated once a week so that no employee would have to work throughout the grinding season on an undesirable night shift. Naturally with this arrangement, each week of the season one shift worked two eight-hour periods in a single period of twenty-four hours. The defendant paid its employees who worked two shifts in a single twenty-four hour period double rate for the ninth hour worked in accordance with § 1 of Act No. 49 of August 7, 1935, but in accordance with the interpretation of that Act by the Supreme Court of Puerto Rico, it paid such employees only at the regular rate for the remaining seven hours of their double tours of duty in one twenty-four hour period. This action is to recover double time for the employees for the remaining seven hours of their double tours pursuant to paragraph B-2(a) of Mandatory Decree No. 3, supra.
The parties reached agreement as to the facts, and prior to trial in the Insular District Court they filed a stipulation- upon which they agreed to submit the case to the court. In this stipulation the plaintiff conceded that his only evidence consisted of certified copies of a petition filed by the defendant on May 7, 1943 in the Supreme Court of Puerto Rico for review under § 24(b) of Act No. 8 of April 5, 1941 of Mandatory Decree No. 3, supra, and the order of the Supreme Court holding the Decree valid, and the defendant conceded that it had “no evidence to present in connection with this incident.” The defendant also filed an answer to the complaint wherein it asked that the complaint be dismissed because it failed to state a cause of action and because the Decree upon •which it rested was illegal and void on various grounds. The District Court did not reach the second defense set up by the defendant in its answer for the court was of the opinion that it lacked “venue and/or jurisdiction” to do so. It took the view that § 24(b) of Act No. 8 of April S, 1941 “prescribes the procedure to be followed in challenging the validity and/or legality of a decree approved by the Minimum Wage Board, when said invalidity or illegality is the result of lack of authority or excess of power by the Board in the decree or order approved.” And from this it concluded that although the defendant in its petition of May 7, 1943 to the Supreme Court of Puerto Rico for review of Mandatory Decree No. 3 did not present the grounds for nullity of the Decree raised in its answer, it nevertheless could and should have done so then and was precluded from presenting them in defense of this action.
On appeal the Supreme Court of Puerto Rico affirmed. It took judicial notice of the defendant’s petition for review of May 7, 1943, and the Court’s judgment thereon declaring Decree No. 3 valid, and then stated the question for decision as: “Must the respondent, by virtue thereof, be es-topped from contesting anew the validity of Mandatory Decree No. 3 ?” It answered this question in the affirmative.
The Court recognized that § 24 of Act No. 8 of April 5, 1941 does not state clearly and specifically that the procedure it provides is exclusive. Nevertheless, the Court felt that its context dispelled any doubt as to the intention of the legislature to provide that once a person had invoked the review procedure of the Act, he could not later attack the validity of a decree approved by the Minimum Wage Board either collaterally or in an independent proceeding. The Court stated the reason for its decision as follows;
“The respondent, we repeat, timely filed in this Court its. petition for review authorized by law. It is true that it did hot raise therein some of the questions it now raises. Nevertheless, considering the manner in which the aforesaid Section is phrased, respondent had the opportunity to raise them within the writ of review. If it did not do so it can blame no one but itself. To permit it now to attack collaterally in the action brought against it on behalf of certain workers the validity of the decree would be equivalent to giving authorization to engage in piecemeal litigation, to attack the validity of a decree in another court and in a proceeding different from that specifically provided by law and to vitiate the proceeding. Such was not the spirit which animated the Legislature in approving the foresaid Act No. 8 of 1941. A perusal thereof clearly discloses that the purpose behind it was none other than to protect workers in their minimum standards of living necessary for their health, efficiency and welfare through the approval of decrees which once approved by the Minimum Wage Board could be reviewed, by virtue of a speedy proceeding, by the highest Court of the Island and that once we declared them valid they could he fully efficacious and effective, without being subject to subsequent attack. Therefore, we arrive at the conclusion that Mandatory Decree No. 3 involved herein can not be challenged as the respondent seeks to do and that the lower court acted correctly in refusing jurisdiction to entertain the questions it raised intending to invalidate it.”
It is evident from the foregoing that the Supreme Court of Puerto Rico did not decide that review under § 24(b) of Act No. 8, supra, provided the exclusive remedy for one aggrieved by a decree of the Minimum Wage Board. All it decided, and all that it was called upon to decide in this, case, was that the legislature in passing Act No. 8 intended to provide that if a person attacked a decree formulated thereunder in accordance with the review provisions of § 24(b) thereof, he would be barred •from later attacking the decree in another proceeding on a ground which might have been raised in the review proceeding but was not.
It is not readily apparent wherein the Supreme Court of Puerto Rico can be said to have been “inescapably wrong” or “patently erroneous” (Bonet v. Texas Co., 1940, 308 U.S. 463, 60 S.Ct. 349, 84 L.Ed. 401; De Castro v. Board of Commissioners, 1944, 322 U.S. 451, 64 S.Ct. 1121, 88 L.Ed. 1384) in its interpretation of the legislation involved. Nevertheless the appellant contends that the Supreme Court of Puerto Rico should be reversed because it failed to recognize that Decree No. 3 was void on its face, and that it is the general rule that administrative decrees void on their face can be attacked at any time since they are legally “non-existent” and void. And it says Decree No. 3 is clearly void on it face, because it “permits and legalizes” work in excess of nine hours in a single twenty-four hour period, provided double wages are paid for hours worked in excess of eight, which is said to be clearly in excess of the Board’s statutory authority. The reason given for this is that § 8 of Act No. 8, while giving the Board power under given conditions to fix maximum working hours, specifically provided that “the hours fixed shall not exceed the maximum established, or which may hereafter be established, by law,” and § 1 of Act No. 49 of 1935, which was in effect until its repeal by Act No. 379 of May 15, 1948, made employment for over nine hours in a single day illegal in the absence of some emergency which con-cededly did not exist here.
Apparently this argument was presented to the Supreme Court of Puerto Rico. Equally apparently, however, that Court did not find the argument persuasive for it did not mention it in its opinion. We may say that we do not find the argument persuasive either. But there is no occasion for us to consider it in detail only to reject it. Certainly the Supreme Court of Puerto Rico has as wide latitude in formulating its rules of estoppel by judgment as it has in formulating its rules of res judicata (Monagas v. yidal, 1 Cir., 1948, 170 F.2d 99, 105—107, certiorari denied, Monagas v de la Rosa v. Vidal-Garrastazu, 335 U.S. 911, 69 S.Ct. 483, 93 L.Ed. 444) and we do not see how it can be said to have overstepped here. In fact, instead of being persuaded that the Supreme Court of Puerto Rico was “inescapably wrong” or “patently erroneous” in its interpretation of the local statute we think its interpretation -of that statute' quite correct.
Nor do we see how it can be said that the . decision appealed from operates in any way to deprive the appellant of' due process of law. It had, and availed itself of, one full and fair opportunity to present its contention that Decree No. 3 was invalid on its face in the review proceeding it instituted under § 24(b), supra. We cannot see how the appellant, having failed to present its present argument then, can complain of any deprivation of due process in not being allowed to present it now. Due process does not require piecemeal litigation.
Other questions' argued by the appellant are either too insubstantial to warrant notice, or were first raised in this court and hence were presented too late for consideration on this appeal.
The judgment of the Supreme Court of Puerto Rico is affirmed.
. Actually violation of paragraph A-2(a) of the Decree is alleged in the complaint, but it was agreed that this was error and that paragraph B-2(a) is really involved, which reads as-follows:
“2. Hours of Work — (a) Daily: No employer shall employ any worker in the industrial phase of the sugar industry for more than eight hours in any period of twenty-four hours unless such worker or. employee receives compensation for his work in excess of the said eight hours, at the rate of double the minimum wage applicable under the scale established in Article B-1 of this Decree.”
. Cardona v. District Court, 62 P.R.R. 59 (1943); Muñoz v. District Court, 63 P.R.R. 226 (1944); Alcalá v. Ponce Star Line, Inc., 63 P.R.R. 825 (1944); Avel-lanet v. Porto Rican Express Co., 64 P.R.R. 660 (1945); Chabran v. Bull Insular Line, Inc., 69 P.R.R. 250 (1948).
. Section 24(b) provides as follows:
“(b) The findings of fact at which the board acting within its powers may arrive shall, in the absence of fraud, be conclusive; Provided, That any person directly or indirectly aggrieved by any decree or rule of the board may apply to the latter for reconsideration within twenty (20) days after the promulgation "of such decree or rule. The petition for reconsideration shall be made under oath and the same shall contain the grounds on which it is based; Provided, That reconsideration shall be granted only for one of the following causes:
“That the board acted without authority or beyond its powers; or that the decree, rule, or order was obtained through fraud.
“A review of the final decision which the board may render in the mater [sic], may be obtained in the Supreme Court of Puer-to Rico within a term of fifteen days after the service thereof. The court may affirm or set aside the decision of the board; but the setting aside shall be only for one of the following reasons:
“That the board acted without authority or beyond its powers ; or that the decree, rule or order was obtained through fraud.”
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_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
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DUQUESNE ELECTRIC AND MANUFACTURING COMPANY, Respondent.
No. 74-1989.
United States Court of Appeals, Third Circuit.
Argued April 18, 1975.
Decided June 13, 1975.
As Amended June 30, 1975.
Michael Messitte, N. L. R. B., Washington, D. C., for petitioner.
Timothy P. O’Reilly, Bridgeville, Pa., for respondent.
Before SEITZ, Chief Judge, and MARIS and ROSENN, Circuit Judges.
OPINION OF THE COURT
MARIS, Circuit Judge.
The National Labor Relations Board petitions this court to enforce its order of June 28, 1974, 212 NLRB No. 8, against the Duquesne Electric and Manufacturing Company (hereinafter designated the Company) pursuant to section 10(e) of the National Labor Relations Act, as amended by section 101 of the Labor Management Relations Act, 29 U.S.C.A. § 160(e). The Board determined that the Company violated section 8(a)(1) of the National Labor Relations Act, 29 U.S.C.A. § 158(a)(1), by discharging employees, Melanie R. Casey, Sharon McGaughey and Debbie Hart, for engaging in concerted activities protected by section 7 of the Act, as amended, 29 U.S.C.A. § 157, and ordered the Company to cease and desist from the unlawful acts and to reinstate those employees to their former jobs or substantially equivalent positions, with back pay. In opposition to our enforcement of the Board’s order, the Company urges that the case should be remanded to the administrative law judge by whom it was initially heard for redetermination of his credibility findings in the light of erroneously rejected evidence and of an affidavit by McGaughey production of which was refused and that alternatively this court should deny the Board’s petition on the ground that the employee activities in question are not protected under the Act.
The testimony elicited at the hearing before the administrative law judge may be summarized as follows. The Company rebuilds and sells electrical equipment and employed, immediately prior to June 6, 1973, at its Etna, Pennsylvania plant and adjacent offices, nine executives and administrators, including Robert J. Casey, the Company’s sole owner and chairman of its board of directors, 35 production and maintenance employees represented by the International Union of Electrical, Radio and Machine Workers, Local 643, AFL-CIO — CLC, and four office workers not represented by any union — Melanie Casey, hired in 1969, Connie Devine, hired in 1971, Sharon McGaughey, hired in July 1972 and Debbie Hart, hired in September 1972.
In December of 1972 the four office workers had discussed among themselves their dissatisfaction with wages and certain office conditions. In April 1973 they made their complaints known to Clyde Giegel, Vice-President of Sales, who advised them to organize their complaints and submit them, together, to Casey. Melanie was delegated to present their grievances to Casey which she did in his office on May 29th. Casey listened to the complaints and recommendations and asked Melanie to put them in writing. Melanie immediately typed a list of six requests giving the original to Casey and a copy to McGaughey. Casey took the memorandum, read it and promised to reach a decision concerning it on June 1st, but on that date he postponed any answer until the following week.
On June 6th Melanie again approached Casey. Melanie testified, and her version of the June 6th interview substantially differs from Casey’s, that when she inquired whether Casey had reached a decision, he replied, “I have and I haven’t.” When Melanie said she didn’t understand his answer, Casey replied that, as owner of the Company, he owed her no explanation and “If you don’t like the way I run things around here, you can get the hell out.” Casey called Hart, McGaughey and Devine into his office and, after ascertaining that Melanie spoke for all of them, repeated the words quoted above to each of them, ■ adding that they should not expect a job recommendation from him. As the four employees gathered their belongings in their various offices, the telephone rang. Melanie testified she called out, “Don’t pick it up. You’ve been fired.” The administrative law judge believed that Casey and Giegel probably heard these words, which they denied hearing. Before leaving, the four said goodby to Giegel, Vice-President Brenza and Secretary-Treasurer Hess. These executives testified they did not ask why the four were leaving en masse.
The next morning the four office workers picketed outside the plant and sympathizing production and maintenance workers also remained outside. Union officials, present to urge the men to go back to work, were commissioned by the four picketing employees to ask Casey if he would not reconsider his position. Casey refused. On June 11th each of the four signed a letter prepared by the Union and sent to Casey applying for unconditional reinstatement. Debbie Hart corroborated Melanie’s account of the June 6th meeting. However, the Company sought to impeach Hart’s testimony with a prehearing affidavit in which she had stated that she would not have returned to work “if our demands weren’t met”, a statement contrary to her testimony and her June 11th letter to Casey. Also, as bearing on Hart’s credibility, the Company pointed to her testimony on cross-examination that her endorsement of a final paycheck, although identical to that of Melanie’s was not the product of consultation between them.
Casey, testifying for the Company, denied that he fired the officer workers. He testified that early in the interview he reminded Melanie that she had received nine pay increases in her three and one-half years with the Company and that she had already taken twenty-one days off from work that year. He stated that Melanie then raised her voice and demanded an answer to her requests. When Casey asked what she would do if he refused, he stated that she replied, “We intend to quit.” The others were sent for and when they agreed that they would quit if an immediate answer to their requests was not given, Casey told them they could leave. Casey testified he then left the building. Corroborating Casey’s testimony, Secretary-Treasurer Hess testified that while seated at his desk in his office, he heard the words, “I quit”, coming from Casey’s office directly across the hall at the time of the June 6th interview, and that shortly thereafter Casey entered Hess’s office and told him the girls had quit.
On the principal issue of whether the four employees quit or were fired, the administrative law judge credited Melanie Casey and Debbie Hart and found, on the basis of their testimony and subsequent events, that the employees were reasonably led to believe that they were discharged, which belief was not in any way dispelled by Casey, although he was aware of their state of mind and that, therefore, they were directly or constructively discharged on June 6th. It appears that the administrative law judge made his findings after having rejected as evidence, and accordingly without having considered, decisions made by the Pennsylvania Bureau of Employment Security and affirmed by the Pennsylvania Unemployment Compensation Board of Review that the four office workers had voluntarily quit their jobs or the statement of Devine, who was not a charging party, on her application for unemployment benefits that her reason for separating from her employer was, “Quit— Employer refused to bargain in good faith.” Upon considering the Company’s exceptions to the administrative law judge’s report and order, the Board agreed with the Company that this evidence had been erroneously rejected since the decision of a state unemployment compensation agency may be judicially noticed, although it is not controlling. The Board itself did consider this evidence, however, but found it insufficient to overcome the other factors relied on by the administrative law judge to find a violation of the Act. The Board specifically stated in a footnote to its decision that after careful examination of the record it found no basis for reversing the administrative law judge’s finding that the employees had been discharged in violation of the Act and that it was its policy not to disturb credibility findings made by an administrative law judge unless the “clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect.”
Our review of the record satisfies us that there is in it substantial evidence which, if credited, as it was by the Board, supports the findings upon which the order sought to be enforced was predicated. Indeed the Company has not asserted the contrary before us. The Company, of course agrees that the Board was right in overruling the administrative law judge’s exclusion of the Pennsylvania Bureau of Employment Security records, including Devine’s application for unemployment benefits, and in admitting that evidence into the record. Its sole contention in this regard is that it was beyond the power of the Board itself to determine the sufficiency of the evidence as a whole, including the originally excluded evidence, to support the judge’s findings since that determination involved an appraisal by the Board of the credibility of witnesses on the basis of a record which included evidence that the judge had not considered. The Company strongly urges that the Board should instead have referred the case back to the judge for reconsideration of his credibility findings in the light of all the evidence which is now in the record.
We do not agree. Section 10(c) of the Act, as amended, 29 U.S.C.A. § 160(c), expressly provides that, after having referred a case to an agent, such as a hearing examiner or administrative law judge, who is authorized to conduct a hearing and after having received back the transcript of the testimony taken by him, the Board may take further testimony and “upon the preponderance of the testimony taken . . . the Board shall state its findings of fact.” Under this clear statutory authority it is the Board itself which is responsible for determining the facts and not its trial examiner or administrative law judge. Standard Dry Wall Products, Inc., 1950, 91 N.L.R.B. 544, enforced, 3d Cir., 188 F.2d 362. The administrative law judge’s findings and recommendations, when contested, become merely advisory, and the Board itself makes an original disposition of the case. N.L.R.B. v. Stocker Manufacturing Co., 3d Cir. 1950, 185 F.2d 451, 453. Thus the Board is not bound to follow an administrative law judge’s findings even though they are not clearly erroneous. Universal Camera Corp. v. N.L.R.B., 1951, 340 U.S. 474, 492, 71 S.Ct. 456, 95 L.Ed. 456, but may decline to follow such a judge’s finding even as to the credibility of a witness who testified before him and make a contrary finding on the subject if its determination is supported by substantial evidence. N.L.R.B. v. Treasure Lake, Inc., 3d Cir. 1971, 453 F.2d 202, 204. Moreover, it has been held that the Board is entitled in making such a determination to consider additional evidence which it may have received. United Steelworkers of America AFL-CIO v. N.L.R.B., 1967, 128 U.S.App.D.C. 344, 386 F.2d 981. In the ease just cited the Court of Appeals upheld the reversal by the Board, on the basis of new documentary evidence, of a finding of credibility by a hearing officer with respect to a witness who had testified before him saying:
“The Board’s evaluation of the new evidence did not require personal observation of the demeanor of the witness whose credibility the Board found was undermined by this evidence. Nor was the Board required to return the case to the Trial Examiner for his appraisal of the record as augmented.” 386 F.2d 981 at 983.
The power of the Board to reject credibility findings by an administrative law judge on the basis of substantial evidence, some of which was not before the judge, surely includes the power to accept and adopt the judge’s findings on the same basis, as the Board did here. In doing so in the present case it did not exceed its authority.
The Company further complains of the refusal of the administrative law judge to order the general counsel of the Board to produce a prehearing affidavit made by Sharon McGaughey, one of the clerical employees alleged to have been discharged, whom the Company had called to testify under Rule 43(b) FRCP as an adverse party. McGaughey was not in fact a charging party in this proceeding but she was a discriminatee and doubtless an unwilling or hostile witness. Rule 43(b) was, therefore, applicable. The contention of counsel for the Company is that the refusal to order production of McGaughey’s affidavit interfered with the right to cross-examine her which the rule gave him. It is clear, however, that counsel has misconceived his rights under the rule.
Rule 43(b) did not give counsel the right to cross-examine McGaughey, but merely to use leading questions in conducting his direct examination of her as a witness called by him. It was for the general counsel of the Board to cross-examine her if he desired to do so, after her direct examination by the Company’s counsel had been completed. If, as appears, counsel desired the affidavit for the purpose of impeaching McGaughey as a witness, assuming that she was an adverse party impeachable under the rule, he had no need for it, and was, therefore, not entitled to it, until she had given testimony damaging to the Company’s case, which she never did. The Board has so construed section 102.118(b)(1) of its Rules and Regulations, 29 C.F.R. § 102.118(b)(1), which permits the production for the use of the opposing party of statements of witnesses called by the general counsel of the Board. Kenrich Petrochemicals, Inc., 1964, 149 N.L.R.B. 910, 911 n.2. We see no error in the administrative law judge’s refusal to order the production of McGaughey’s affidavit in this case.
Finally, the Company urges that the activity in question in this case represented merely an effort by Melanie to create_ an executive position, that of office manager, for herself and was, therefore, not a protected activity under the Act. It is sufficient as to this to say that the uncontradicted evidence amply supports the finding that in an effort to improve their working conditions the four employees involved organized and delegated Melanie to be their spokesman and that Casey, when he terminated their employment, knew of the involvement of all four employees in the requests made by Melanie. These were clearly concerted activities within the meaning and protection of the Act.
A judgment enforcing the order of the National Labor Relations Board will be entered.
. Rule 43(b) has been superseded, effective July 1, 1975, by Rule 611(c), Federal Rules of Evidence.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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songer_suffic
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E
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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".
Timothy WILSON, a Minor, by Robert Wilson, His Natural Parent and Guardian, and Robert Wilson, in His Own Right v. AMERICAN CHAIN & CABLE COMPANY, Inc. v. Robert WILSON and Hugh Lavery (Third-Party Defendant) Timothy Wilson, a Minor, by Robert Wilson, His Natural Parent and Guardian, Appellant. Timothy WILSON, a Minor, by Robert Wilson, His Natural Parent and Guardian, and Robert Wilson, in His Own Right v. AMERICAN CHAIN & CABLE COMPANY, Inc. v. Robert WILSON and Hugh Lavery (Third-Party Defendant) Robert Wilson, in His Own Right, Appellant.
Nos. 15450, 15458.
United States Court of Appeals Third Circuit.
Argued Jan. 7, 1966.
Decided Aug. 3, 1966.
See also, D.C., 38 F.R.D. 72; D.C., 216 F.Supp. 32.
Sidney J. Smolinsky, Phildelphia, Pa., for appellant in No. 15450.
Robert W. Costigan, Philadelphia, Pa., for appellant in No. 15458.
William J. McKinley, Jr., Swartz, Campbell & Detweiler, Philadelphia, Pa., for appellee in both appeals.
OPINION OF THE COURT
Before BIGGS, GANEY and FREEDMAN, Circuit Judges.
FREEDMAN, Circuit Judge.
This is a diversity case arising under the law of Pennsylvania. Robert Wilson, the father of five year old Timothy Wilson, as guardian of the minor and on his own behalf brought this action against the defendant for negligence and wanton negligence in the design of its Lawndale riding rotary power lawn mower. The negligence alleged was that although it knew that rotary power mowers were dangerous and that injuries resulted from their use, defendant had failed to incorporate brakes, or a declutching device and to properly position and guard the discharge openings, all because of considerations of cost, aesthetics and space. As a result of the absence of a clutching device it was necessary to turn off the engine motor to bring the blade to rest. The defendant denied that it was negligent. As to the claim of the minor it also raised the defense of a superseding cause and as to the father’s claim alleged that he was contributorily negligent and that the required jurisdictional amount was lacking.
The plaintiffs’ version of the circumstances of the accident was given by the father. He testified that on August 3, 1959, while it was daylight, at about 6:30 P.M., Daylight Saving Time, he was mowing the lawn of his home in Springhouse, Pennsylvania, where he lived with his wife and five young children. He was using the defendant's power mower, which he had recently purchased on a trial basis. He had just finished supper and had left his wife and children in the house, assuming that the children would watch television as they usually did after supper. A little while after he had begun mowing the lawn, Wilson noticed his twenty-two month old daughter, Linda, running toward him. He placed the clutch in neutral, which stopped the forward motion of the mower but left the engine running and the mower blade rotating, and went to his daughter. He picked her up and put her in a swing some distance away. As he was fastening her in the swing, he heard a change in the sound from the lawn mower, and as he turned to look, saw Timothy seated on the mower. It was moving forward up an incline on the lawn. He froze for a moment, and then ran toward Timothy, but before he could reach him, Timothy fell over the side of the mower and its blade cut off the heel and achilles tendon of his right foot.
At the conclusion of plaintiffs’ evidence, the trial judge granted defendant’s motion to dismiss the father’s claim for lack of jurisdiction because the amount in controversy could not exceed $10,000 and also on the merits because he was guilty of contributory negligence as a matter of law. The minor’s case went forward, and after defendant presented its evidence the trial judge submitted to the jury the question of the defendant’s negligence and on the claim for punitive damages submitted the question of defendant’s wanton negligence. The jury returned a verdict in favor of the defendant and the subsequent motions for new trial and judgment N.O.V. by the minor and for new trial by the father were denied.
Two questions are presented to us on plaintiffs’ appeals: (1) the charge of the court on the question of superseding cause; and (2) the dismissal of the father’s claim because of (a) contributory negligence; and (b) the lack of diversity jurisdictional amount.
I.
The Minor’s Case
In the minor’s case, the jury was required first to decide whether the defendant was negligent in failing to build a machine safe for ordinary, foreseeable circumstances, and if so, whether the intervening conduct of the father was a “superseding” cause excusing it from liability. The trial judge correctly charged the jury on negligence and then defined superseding cause as existing where the intervening act is “so predominant that regardless of what the other person did, it is immaterial.” Again, in describing the difference between superseding and concurring negligence the trial judge told the jury: “Now, if you come to the conclusion that both parties were negligent here, then you would have [to] come to another conclusion in rendering a just verdict by saying, ‘Well, they were equally responsible or the negligence of one was so predominant, so superseded the negligence of the other, that it made it immaterial.’” Later the trial judge said: “* * * [W] as this accident caused because of the negligent design of this machine? Secondly, if you should conclude that the machine was negligently designed, is that what caused the accident to the boy? Third, if you conclude that the company was negligent in designing this, then you must go to the second case and decide what was the primary cause, or what was the cause. Was it the negligence of the father, assuming there was negligence? * * * If you find the father was not negligent and they were negligent, well, that is the end of it. If you find that they are both negligent, then you must find whether it was a concurrent act of both parties or whether one superseded the other and therefore that was the actual proximate cause of this injury.”
There can be no doubt from these statements that in determining whether it should hold the defendant liable the jury was guided by a direction which in effect told them that even if the defendant was negligent it was not liable if the father was negligent and his negligence was subsequent to and greater in extent or predominated over the negligence of the defendant. The charge therefore was erroneous under Pennsylvania law for two reasons. In the first place, it failed to tell the j ury that in order to be a superseding cause it is not enough that a later act is a predominant cause but that it must be so highly extraordinary as not to have been reasonably foreseeable. Secondly, the charge gave no indication that whether the intervening act was foreseeable is to be determined retrospectively and not prospectively. These principles have been followed by this Court in Leposki v. Railway Express Agency, Inc., 297 F.2d 849 (3 Cir. 1962), a Pennsylvania diversity case, like this. There the defendant parked its truck facing up a steep hill with a high crown, as a result of which gasoline leaked out of the opening of the gasoline tank into the gutter. A boy who was passing by threw a match into the gutter, igniting the gasoline. The ensuing fire reached the plaintiffs’ home where it caused property damage and personal injury to two infant children who were asleep inside. The defendant contended that any negligence on its part was superseded by the boy’s act of throwing the lighted match into the gasoline. The trial court instructed the jury: “Should the defendant be excused from liability to the plaintiffs by the intervening act of the boy in igniting the gasoline as he did? Could the defendant reasonably foresee that this might happen ? * * * if you decide that it could, you may find for the plaintiffs. If it could not have been anticipated or foreseen, your verdict should be for the defendant.”
We reversed, saying: “In Pennsylvania, an intervening negligent act by a third person does not, in all cases, constitute a superseding cause relieving an antecedent wrongdoer from liability for negligently creating a dangerous condition. The act is superseding only if it was so extraordinary as not to have been reasonably foreseeable. * * * The extraordinary nature of the intervening act is, however, determined by looking back from the harm or injury and tracing the sequence of events by which it was produced, * * * i. e., the events are viewed retrospectively and not prospectively. * * *
“The district court’s charge, viewed by this standard, was clearly misleading. Whether an intervening act constitutes a superseding cause is a question that is more readily resolved in hindsight, and that which appears to be extraordinary in the abstract may prove to be otherwise when considered in light of surrounding circumstances that existed at the time of the accident. It may be that a particular defendant is unaware'of the facts that led to events giving rise to the intervening act, yet the jury, viewing the matter retrospectively, could properly conclude that the act was not extraordinary. * * * Considering the intervening act in light of the circumstances that prevailed at the time defendant parked the truck, can it be said that the boy’s act was extraordinary? That is how the jury should have been instructed to view the question.” (850-851).
The trial judge therefore should have defined superseding cause and distinguished it from concurring cause by isolating the critical element, whether the act was so extraordinary as not to have been reasonably foreseeable, and should have instructed the jury that whether the act was reasonably foreseeable was to be determined by following retrospectively the sequence of events and looking back from the harm to the negligent act rather than by considering whether the defendant should prospectively have envisaged the events which unfolded and caused the accident.
These errors in the charge are so fundamental that we must notice them on appeal, despite the plaintiff’s failure to object at the time as required by Rule 51. See Leposki v. Railway Express Agency, Inc., supra; McNello v. John B. Kelly, Inc., 283 F.2d 96, 102-103 (3 Cir. 1960). In Leposki (297 F.2d 850 n. 1), we indicated that the failure of the trial judge to point out the requirement that superseding cause is to be viewed retrospectively rather than prospectively was fundamental error. In the present case, more is involved than the single error which we there found fundamental. Here, in addition, the court failed to instruct the jury adequately on the distinction between superseding and intervening cause. The jury therefore was without adequate guidance on the' fundamental question whether defendant should be absolved from liability for negligence by the intervening action of the father. A verdict so arrived at is one ungoverned by the legal principles which determine the dispute between the parties and therefore may not be sustained as the ultimate product of the judicial process.
The judgment in favor of the defendant on the claim by the minor plaintiff through his natural parent and guardian therefore will be reversed and the cause remanded for a new trial.
II.
The Father's Claim
A. Contributory Negligence. In the claim of the minor plaintiff the trial judge submitted to the jury the question whether defendant was wantonly negligent as well as its ordinary negligence. But the father’s claim was held to be barred because he was contributorily negligent as a matter of law.
It is settled in Pennsylvania that a plaintiff who is guilty of contributory negligence, however slight it may be, is barred from recovery against a negligent defendant. Crane v. Neal, 389 Pa. 329, 132 A.2d 675 (1957). An exception exists however, in cases where the negligence of the defendant is so gross as to amount to wanton negligence; in such a case contributory negligence of the plaintiff is not a bar. Kasanovich v. George, 348 Pa. 199, 34 A.2d 523 (1943); Tanner v. Pennsylvania Truck Lines, Inc., 363 Pa. 136, 69 A.2d 366 (1949); Restatement, Second, Torts § 482(1). If the evidence required the question of wanton negligence to be submitted to the jury in the minor’s claim, it was equally available to the father in his claim. The father’s claim therefore should have been submitted to the jury with instructions that if it found that the defendant was wantonly negligent, his claim would not be barred by contributory negligence on his part. For this reason alone the trial court erred in granting the motion to dismiss the father’s claim.
Even if no wanton negligence on the part of the defendant was shown, the question whether the father was guilty of contributory negligence should have been submitted to the jury and not determined against him as a matter of law. The modern rule in Pennsylvania is now well settled that the question of contributory negligence ordinarily is for the jury and will be declared as a matter of law only where it is so clear that there is no room for fair and reasonable disagreement as to its existence. Weidemoyer v. Swartz, 407 Pa. 282, 285, 180 A.2d 19 (1962). The circumstances must be viewed as the father reasonably believed them to exist, and elements which were not in his mind and which he could not reasonably have anticipated may not be permitted to impose a burden on him beyond the standard of due care. The reasonableness of his belief that all of the children were in the house and of his conduct in hurriedly leaving the mower as he did to put his twenty-two month old daughter in a place of safety, are all relevant in determining from the existing circumstances whether his conduct fell below the requirement of ordinary care. The jury’s attention therefore should have been focused on all the circumstances and it should have been instructed to determine from them whether they created a sudden emergency for which the father was not responsible and in the light of which he exercised ordinary care.
The question of the father’s contributory negligence, even if defendant had been found guilty only of negligence and not of wanton negligence, was a matter for the jury.
B. Amount in Controversy. The trial judge also held that the father’s claim must be dismissed because it did not satisfy the jurisdictional requirement that the amount in controversy must exceed $10,000. 28 U.S.C. § 1332(a).
The testimony showed that the father’s expenses for the treatment of the son’s injuries amounted to approximately $1,-500 and that the boy will be required to have special orthopedic shoes which will cost $33 annually until he reaches the age of twenty-one years or is emancipated. A physician gave his expert opinion that the boy’s condition will grow worse and will progressively restrict his activities. There was, however, no evidence regarding what loss of future earnings the father may sustain during the son’s minority, nor as to the cost of possible future medical or hospital care, although the evidence indicates that future medical attention will be necessary. Future loss of earnings of a child who is very young at the time of trial contains a large element of speculation which is excused out of necessity. But in the present case no real effort was made to supply the jury with any elements regarding the minor’s personal qualities which, however fragmentary, might have afforded some basis for determining his likely means of employment and earning power. Nor was any effort made to put into some concrete form the possible liability of the father for future medical or hospital care. In these circumstances, therefore, there was not enough to close the gap between the $2,000 proven loss and the $10,000 jurisdictional amount.
But whether a trial ultimately reveals the lack of proof of damages equal to the amount of the statutory requirement is not the test of jurisdiction. We recently had occasion to say that the standard by which the amount in controversy is to be judged is the subjective belief entertained in good faith at the time the allegation of damages is made, and since objective proof is evidence of subjective belief, a showing to a legal certainty that the claim is below the jurisdictional amount affords evidence of lack of subjective good faith. See Jaconski v. Avisun, 359 F.2d 931 (3 Cir. 1966); Brough v. Strathmann Supply Co., 358 F.2d 374, 377 (3 Cir. 1966). In the present case, however, the judge did not undertake to make a determination of good faith, nor did he submit the question to the jury for its decision. Instead, he determined the jurisdictional question by measuring whether the proofs would justify a verdict in the jurisdictional amount.
The determination of lack of jurisdictional amount therefore was made by the application of an erroneous standard and must be set aside.
' There is, moreover, a more fundamental error in the dismissal of the father’s claim for lack of jurisdiction, although it was not raised below or here. The father’s claim is not independent from the claim which he made on behalf of his minor son, for the father’s damages flowed to him from the injury which the son suffered and are ancillary to the son’s claim. In cases of this kind where parent and child or husband and wife are claimants, Pennsylvania statutes for many years have required that the “two rights of action shall be redressed in only one suit, brought in the names of the parent and child [or the husband and wife].” These statutory requirements have been continued under the rule-making power in the Pennsylvania Rules of Civil Procedure.
In these circumstances it seems to us both appropriate and right to apply the doctrine of pendent jurisdiction, by which a claim cognizable in the federal courts may be permitted to carry with it a related claim otherwise not within the federal jurisdiction, if both claims ordinarily would be tried in one judicial proceeding. The basis for this doctrine is the judicial economy, and the convenience and fairness to litigants which it serves. See United Mine Workers of America v. Gibbs, 383 U.S. 715, 724-727, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933); cf. Clark v. Paul Gray, Inc., 306 U.S. 583, 588-590, 59 S.Ct. 744, 83 L.Ed. 1001 (1939).
The usual case of pendent jurisdiction involves one plaintiff. Although the present case involves two plaintiffs, one the minor and the other the father in his own right, both these claims arise from the same occurrence. This unity is recognized and reinforced by the Pennsylvania requirement that they must be redressed in one action. We give recognition to this policy of Pennsylvania in treating the father’s claim as pendent to that of the minor. Indeed the father is the party plaintiff in both claims. We have already recognized the principle where diversity of citizenship existed in a survival action by permitting an accompanying wrongful death action, in which diversity of citizenship was lacking, to be maintained as pendent to it. It is equally applicable to cases such as this where the diversity requirement of the amount in controversy is present in one but absent in the other of the two related claims of parent and child. The cases which have refused to aggregate the amounts in controversy in two similar actions are not here applicable. Nor do we consider persuasive those cases where the application of pendent jurisdiction was not considered, although it might have been applied. Clark v. Paul Gray, Inc., 306 U.S. 583, 588-590, 59 S.Ct. 744 (1939), to whatever extent it has survived United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130 (1966), does not control the present case because there the individual plaintiffs were unrelated except in their effort to invalidate the statute assailed, whereas here the claim of the father flows secondarily from the injury to the son and because of this state law has created a unity of action.
The dismissal of the father’s claim on the ground of either lack of jurisdictional amount or contributory negligence as a matter of law therefore must be set aside.
In both appeals, therefore, the judgments will be reversed and a new trial awarded.
. The trial judge granted the motion for a directed verdict in favor of the third-party defendant, Hugh Lavery, a mechanic who had made some minor adjustments to the mower. No appeal was taken from this action. The defendant had also joined Robert Wilson, the father of the minor, as a third-party defendant, but in view of the verdict in favor of the defendant as to the minor plaintiff’s suit, no finding was made as between the defendant and the third-party defendant, Wilson.
. Doyle v. South Pittsburg Water Co., 414 Pa. 199, 202-205, 199 A.2d 875 (1964); Shimer v. Bangor Gas Co., 410 Pa. 92, 97-100, 188 A.2d 734 (1963); see also Restatement, Second, Torts § 447; Comment, Proximate Cause and the Pennsylvania Supreme Court: Twenty-Five Years In Review, 9 Villa.L.Rev. 453, 460-463 (1964).
. Skoda v. West Penn Power Co., 411 Pa. 323, 331, 191 A.2d 822 (1963) ; see also Restatement, Second, Torts § 435(2); 442; 440, comment b.
. Sowizral v. Hughes, 333 F.2d 829, 835-836 (3 Cir. 1964); Klink v. Harrison, 332 F.2d 219, 225 (3 Cir. 1964); Richardson v. Pennsylvania R.R., 338 Pa. 155, 158-159,12 A.2d 583 (1940).
. As to the effect of emancipation, compare Brough v. Strathmann Supply Co., 358 F.2d 374, 378 (3 Cir. 1966).
. Stewart v. Shanahan, 277 F.2d 233, 236-237 (8 Cir. 1960); Minsky’s Follies of Florida v. Sennes, 206 F.2d 1, 4 (5 Cir. 1953).
. Act of May 12, 1897, P.L. 62, § 1, 12 Purdon’s Pa.Stat.Annot. § 1625, relating to parent and child; Act of May 8, 1895, ' P.L. 54, § 1, 12 Purdon’s Pa.Stat.Annot. § 1621, relating to husband and wife.
. Rule 2228, 12 P.S.Appendix. The statutes were suspended by Rule 2250.
. Borror v. Sharon Steel Company, 327 F.2d 165, 172-174 (3 Cir. 1964); see also Yuba Consolidated Gold Fields v. Kilkeary, 206 F.2d 884, 890-891 (9 Cir. 1953).
. See the able opinion of Kirkpatrick, D. X, in Morris v. Gimbel Brothers, Inc., 246 F.Supp. 984 (E.D.Pa.1965); Raybould v. Mancini-Fattore Company, 186 F.Supp. 235 (E.D.Mich.1960). See contra: Sobel v. National Fruit Product Co., 213 F.Supp. 564 (E.D.Pa.1962); Hamilton v. Civillico, 34 F.R.D. 1 (E.D.Pa.1963).
. E. g., Payne v. State Farm Mutual Automobile Ins. Co., 266 F.2d 63 (5 Cir. 1959); Del Sesto v. Trans World Airlines, 201 F.Supp. 879 (D.R.I.1962).
. Compagnie Nationale Air France v. Castano, 358 F.2d 203, 207-208 (1 Cir. 1966); Arnold v. Troccoli, 344 F.2d 842, 843, n. 1 (2 Cir. 1965); Hackner v. Guaranty Trust Co. of N. Y., 117 F.2d 95 (2 Cir. 1941), cert. denied, 313 U.S. 559, 61 S.Ct. 835, 85 L.Ed. 1520; Kataoka v. May Dep’t Stores Co., 115 F.2d 521 (9 Cir. 1940), cert. denied, 312 U.S. 700, 61 S.Ct. 739, 85 L.Ed. 1134 (1941).
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:
|
songer_jurisdiction
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
MODERNISTIC CANDIES, Inc., et al. v. FEDERAL TRADE COMMISSION.
No. 8356.
Circuit Court of Appeals, Seventh Circuit.
Nov. 15, 1944.
Irvin H. Fathchild, of Chicago, Ill., for petitioners.
Joseph J. Smith, Jr., W. T. Kelley, Chief Counsel, and Eugene W. Burr, Sp. Atty., all of Washington, D. C., for respondent.
Before EVANS, ICERNER, and MIN-. TON, Circuit Judges.
MINTON, Circuit Judge.
On July 16, 1943, the petitioners filed in this court a petition to review a cease and desist order issued by the Federal Trade Commission on May 25, 1943, in proceedings instituted by the Commission pursuant to section 5(a) of the Federal Trade Commission Act, 15 U.S.C.A. § 45(a).
The petitioners market chewing gum in various flavors by means of a “Ballgum” board. This is a punch board with pockets for 150 small balls of gum. The holes in which the gum balls are placed are pasted over with sheets of paper so that the customer, punching out one of these little balls of gum, does not know what flavor or color of gum he is going to receive. Of the 150 balls of gum on the board, 20 or 24 are of one color, and the balance are of a different color. The merchant may, of course, if he so desires, merely sell these gum balls to his customers at a penny a piece.
My colleagues and I experimented with one of the exhibits to the extent of several punches. Two of us punched out white balls, but Judge Evans punched out a red ball. The gum ball was palatable but seemed to contain less gum than the ordinary stick. There would seem to be no particular inducement to a customer to buy gum in this manner. Our experiment told us that the board was not designed to operate as simply as this. The seller of that board had something else in mind.
The evidence is that when a ball of the oft-colored gum was punched out, the merchant would give a prize of some kind to the lucky customer, usually a stick of candy or a candy bar. The number of off-colored balls was printed on the face of the board, and from this information the merchant could determine what value of prize he could afford. The setup was a perfect way to garner children’s pennies although the record showed that adults were equally attracted, which reminds us of what the poet said, that “the child is father to the man.”
.Counsel for the petitioner discussed at great length from a sociological point of view, the age-old problem of the gambling instinct in the human being. According to his analysis, gambling pervades our entire economic system; thus insurance contracts are gambles, stock and grain exchange transactions are gambles, and the farmer’s dependence on the weather is a gamble. Counsel’s attempts to apply this analysis to the present case left us cold and unimpressed. He even reminded us that our great idol, Mr. Chief Justice Marshall in his day attended the horse races and wagered with his clergyman. In fact, they ran a book. As indicating how times have changed, and how even our coarse nature has yielded to the protecting care of governmental policy, we confess we do not even know a bookmaker, clerical or otherwise, and our passes to the beautiful race tracks around Chicago lie in our desk unused.
There may be in every child the impulse that prompts him to take a chance, but it has been the public teaching and the public policy of the land that gambling is immoral and to be condemned. The Federal Government has made it a criminal offense to transport lottery tickets or to cause them to be transported in interstate commerce. 18 U.S.C.A. § 387. Lotteries used in the marketing of merchandise have long been condemned by the Supreme Court and by this court. The cases are legion.
In Federal Trade Commission v. R. F. Keppel & Brother, Inc., 291 U.S. 304, 54 S.Ct. 423, 426, 78 L.Ed. 814, candy was sold by the piece and if it contained a certain number or legend when broken open, the lucky customer received as a prize another piece of candy, his purchase price, or some other small prize. Of this scheme, the Supreme Court said, “Such devices have met with condemnation throughout the community. * * * it is clear that the practice is of the sort which the common law and criminal statutes have long deemed contrary to public policy.” In that case the condemned gambling device and the merchandise to be used with it were sold together as a unit. It is clear, under the Keppel case that such a method of merchandising is within the power of the Federal Trade Commission to prohibit by a cease and desist order.
The Keppel case, however, does not cover the case at bar because the article sold here, the Ballgum board, is incomplete in itself as a game of chance. No prizes are provided. The board, however, is designed, intended, and conducive to gambling; its use suggests, and was intended to encourage, gambling. Our question then is whether such a method of merchandising is an unfair trade practice contrary to public policy and within the power of the Federal Trade Commission to prohibit by use of a cease and desist order where the article sold is not complete in itself for merchandising by means of a game of chance, but is so devised, planned, and constructed as to encourage and induce its use for this purpose.
“The public policy of a State is to be found embodied in its constitution and its statutes, and, when these are silent on the subject, in the decisions of its courts.” Illinois Bankers Life Association v. Collins, 341 Ill. 548, 551, 173 N.E. 465, 466. Recently we said in Maltz v. Sax, 134 F.2d 2, 4, “Moreover, in the absence of any statute condemning gambling as illegal, the Federal courts have consistently condemned it as against public policy.” We have also held that those who aid and abet such a method of , merchandising, those participes criminis with gamblers and their schemes, are likewise engaged in unfair trade practices contrary to public policy. Jaffe v. Federal Trade Commission, 7 Cir., 139 F.2d 112; Koolish v. Federal Trade Commission, 7 Cir., 129 F.2d 64; Maltz v. Sax, supra. The device used in the case at bar is too apparently allied with the purpose of merchandising by gambling to appeal to a court as being a fair trade practice, particularly designed as it is to appeal to children’s trade and to appease their desire to get something for nothing.
It is clear that the Federal Trade Commission has the power to eradicate merchandising by gambling in interstate commerce. We think the Commission also has the power to prohibit the distribution in interstate commerce of devices intended to aid and encourage merchandising by gambling. The gamblers and those who deliberately and designedly aid and abet them are both engaged in practices contrary to public policy. Merchandising by gambling should not be divided into insulated acts, which appear innocent when examined separately. This unfair practice should be viewed as a whole. If the Federal Trade Commission is to police merchandising by gambling, it must police those who designedly and deliberately aid and abet this practice. We think the Commission has such power.
The petition to review is denied.
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_appbus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellant, v. THURMAN, Harvin R.
No. 82-1196.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) Aug. 3, 1982.
Decided Aug. 12, 1982.
Peter F. Yaira, U. S. Atty., Walter S. Batty, Jr., Asst. U. S. Atty., Chief, Appellate Section, Jeanne K. Damirgian, Asst. U. S. Atty., Philadelphia, Pa., for appellant.
Daniel M. Preminger, Philadelphia, Pa., for appellee.
Before ALDISERT and WEIS, Circuit Judges, and RE, Chief Judge.
Honorable Edward D. Re, Chief Judge, of the United States Court of International Trade, sitting by designation.
OPINION OF THE COURT
ALDISERT, Circuit Judge.
The Fugitive Felon Act, 18 U.S.C. § 1073, makes it a federal crime to flee a state to avoid prosecution for a state felony and provides that violators of § 1073 may be prosecuted only in the federal district in which the original state crime was allegedly committed. Under 18 U.S.C. § 2, one who aids or abets commission of an offense against the United States is punishable as a principal. The question for decision is whether, when the alleged violation is aiding and abetting flight to avoid prosecution, and the acts of aiding and abetting took place in another district, the defendant must be tried where the principal would be tried. The district court held that under the facts of this case venue was limited to the Eastern District of New York and therefore dismissed a count in an indictment brought in the Eastern District of Pennsylvania. The government has appealed as authorized by 18 U.S.C. § 8731. We affirm.
Two New York City police officers were shot on April 16,1981, in Queens County as they attempted to stop a van occupied by suspected burglars later identified as James Dixon York and Anthony LaBorde. One officer died, the other suffered serious wounds. After York and LaBorde fled New York, appellee Harvin Thurman allegedly obtained several residences for them in Philadelphia, helped them move their personal effects from one residence to another, provided them with “food, books and newspapers,” and transported York from Philadelphia to Virginia. Thurman was charged in a federal indictment filed in the district court for the Eastern District of Pennsylvania with six various counts: conspiracy, 18 U.S.C. § 371 (count one); being an accessory after the fact of unlawful flight, 18 U.S.C. § 3 (counts two and three); misprision of felony, 18 U.S.C. § 4 (counts four and five); and aiding and abetting an unlawful flight, 18 U.S.C. §§ 2(a), 1073 (count six). On Thurman’s motion the district court dismissed count six. The government appeals.
Section 1073 specifies that “[violations of this section may be prosecuted only in the Federal judicial district in which the original crime was alleged to have been committed .... ” The government concedes that York and LaBorde could be tried on the federal charge only in New York, but it argues that Thurman may be tried in the Eastern District of Pennsylvania, where he is alleged to have aided and abetted York and LaBorde.
The problem before us is solely a question of statutory construction, and our authority is limited: if the statutory language and the legislative intent are plain, the judicial inquiry is at an end. In this case we must read the substantive statute, § 1073, together with the aider and abettor statute, 18 U.S.C. § 2(a).
Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
The district judge viewed § 2(a) as controlling:
[TJhat in effect requires that the aider and abettor must also be tried in the district in which the principal must be tried, and the principals here clearly must be tried in New York, and it is my feeling that this count is not properly in this district.
App. at 22a. Because we believe both § 1073 and § 2(a) are unambiguous, we agree with the district court’s analysis.
The legislative history of § 1073 supports our conclusion. The 1934 Senate debate preceding its passage reveals that the purpose of the legislation was to help states fight criminal gangs whose interstate contacts and resources made state prosecution difficult. Senator Robinson spoke of the necessity of having “a witness or other person needed in a criminal prosecution” brought back to the scene of the crime. 78 Cong.Rec. 5736 (1934). Emphasizing that if the person were a member of a gang operation he should be brought back, Senator Copeland provided the following example:
[SJuppose the witness should flee from Detroit to Columbus, Ohio, and he should be dealt with in the court in Columbus, Ohio, for having committed a felony against the United States. The State officials in Detroit would not be benefited at all in the event the witness should be dealt with afterward by the court in Columbus, because he would be outside the State of Michigan, and could not be dealt with anyway by the State of Michigan.
Id. at 5737.
The Senate debate indicates that the bill’s sponsors were interested in not merely a federal prosecution, but a prosecution in a specific federal district. Although we are quick to admit that the legislative history did not specifically discuss aiders and abettors, we find in the legislative history no indication that Congress would require fleeing witness and felon members of a gang to be returned to the district wherein the state crime allegedly occurred, but nevertheless allow aiding and abetting associates to stay outside the reach of state prosecution.
The government has provided us with a string of citations, apparently to support its proposition that at common law aiders and abettors were tried in the district in which their culpable acts occurred, and therefore that venue in this case may be laid in the Eastern District of Pennsylvania. See United States v. Buttorff, 572 F.2d 619, 627 (8th Cir.), cert. denied, 437 U.S. 906, 98 S.Ct. 3095, 57 L.Ed.2d 1136 (1978); United States v. Kilpatrick, 458 F.2d 864, 868 (7th Cir. 1972); United States v. Bozza, 365 F.2d 206, 221 (2d Cir. 1966); United States v. Gillette, 189 F.2d 449, 451-52 (2d Cir.), cert. denied, 342 U.S. 827, 72 S.Ct. 49, 96 L.Ed. 625 (1951); Eley v. United States, 117 F.2d 526, 528 (6th Cir. 1941). These decisions do not aid the government in this case, however, for although they may be read to hold that venue over aiding and abetting offenses generally is proper either where the substantive offense took place or where the aiding and abetting took place, none of these cases involves § 1073 and its clear legislative intention that venue would properly lie only in one district.
We therefore reject the interpretation urged upon us by the government. Indeed, we are somewhat surprised that the Department of Justice is resisting the prosecution of this defendant in the federal court in New York, in the state where not only the murder occurred but where state authorities potentially have a more than academic interest in this defendant. Moreover, the federal interest in prosecution for offenses committed in the Eastern District of Pennsylvania is vindicated: from the same nucleus of operative facts the government may go forward in prosecuting one count of conspiracy implicating eight overt acts, two counts of accessory after the fact of unlawful flight, and two counts of misprision of felony relating to the unlawful flight.
We conclude that the interpretation urged upon us by the government conflicts with the primary purposes of the venue section of § 1073: to return the felon to the state where the original flight occurred in order to assist state officials in combatting organized crime there, and to vindicate the federal interest in punishing acts committed in the judicial district where the original flight took place. As the court observed in Lupino v. United States, 268 F.2d 799, 801 (8th Cir.), cert. denied, 361 U.S. 834, 80 S.Ct. 86, 4 L.Ed.2d 75 (1959):
Such flights by perpetrators of crimes against the states are a common means of hindering state justice as is well known and, as it is the federal government which accords the freedom of movement throughout the country that makes the flights possible, it is plainly within the province of that government to regulate this abuse of it. The abuse is against the peace and dignity of the United States and also that of the States.
The government’s view of the venue provision of § 1073 conflicts with the clear language of the statutes, the Congressional intent revealed in the legislative history, and desirable public policy favoring state and federal cooperation in the apprehension and prosecution of members of organized crime.
The judgment of the district court will be affirmed.
. Section 1073 provides:
Whoever moves or travels in interstate or foreign commerce with intent either (1) to avoid prosecution, or custody or confinement after conviction, under the laws of the place from which he flees, for a crime, or an attempt to commit a crime, punishable by death or which is a felony under the laws of the place from which the fugitive flees, or which, in the case of New Jersey, is a high misdemeanor under the laws of said State, or (2) to avoid giving testimony in any criminal proceedings in such place in which the commission of an offense punishable by death or which is a felony under the laws of such place, or which in the case of New Jersey, is a high misdemeanor under the laws of said State, is charged, or (3) to avoid service of, or contempt proceedings for alleged disobedience of, lawful process requiring attendance and the giving of testimony or the production of documentary evidence before an agency of a State empowered by the law of such State to conduct investigations of alleged criminal activities, shall be fined not more than $5,000 or imprisoned not more than five years, or both.
Violations of this section may be prosecuted only in the Federal judicial district in which the original crime was alleged to have been committed, or in which the person was held in custody or confinement, or in which an avoidance of service of process or a contempt referred to in clause (3) of the first paragraph of this section is alleged to have been committed, and only upon formal approval in writing by the Attorney General or an Assistant Attorney General of the United States, which function of approving prosecutions may not be delegated.
. We assume that Thurman, will be tried in the Eastern District of Pennsylvania on the remain-tag five counts, as they were unaffected by the district court’s order.
. Nor is Hett v. United States, 353 F.2d 761 (9th Cir. 1966), helpful to the government, for in that case both the principal’s state offense and the acts of aiding and abetting took place in the same district.
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_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.
COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. Michael SHAPIRO and Rae Shapiro, Respondents.
No. 12789.
United States Court of Appeals Seventh Circuit.
June 3, 1960.
Charles K. Rice, Asst. Atty. Gen., Abbott M. Sellers, Lee A. Jackson, I. Henry Kutz, Melvin L. Lebow, Attorneys, Department of Justice, Washington, D. C., for petitioner.
A. L. Skolnik, Milwaukee, Wis., for respondent.
Before HASTINGS, Chief Judge, SCHNACKENBERG, Circuit Judge, and MERCER, District Judge.
HASTINGS, Chief Judge.
The Commissioner of Internal Revenue here petitions for review of a decision of the Tax Court of the United States which granted certain income tax deductions to respondents Michael Shapiro and his wife, Rae Shapiro. The deductions concerned legal expenses arising from the successful defense of a criminal tax evasion charge brought against Rae Shapiro. This appears to be a case of first impression in a court of appeals.
The facts pertinent to this review are not in dispute. As revealed by the record, they may be summarized as follows: Rae Shapiro filed federal income and victory tax returns for the years 1941 through 1944, including therein the income from the business she conducted under the name of “Shapiro’s.” An investigation of these returns resulted in the Commissioner’s determination in December, 1946, that the returns were incorrect; and he assessed a deficiency and an addition to the tax for fraud. Rae Shapiro filed a petition with the Tax Court for a redetermination of her liabilities ; and subsequently, a substantial jeopardy assessment was levied.
In 1950, a criminal indictment was returned against Michael and Rae Shapiro, charging that they attempted' to evade the applicable tax by Rae’s filing fraudulent returns in 1943 and 1944. Both defendants pleaded not guilty to this charge. In November, 1951, Michael entered a plea of nolo contendere to the charge relating to 1944 and was adjudged guilty and sentenced. The court dismissed the indictment as to Rae. Subsequently, the civil case before the Tax Court involving tax liabilities for the years 1941 to 1944 was settled by compromise in 1955.
From 1948 through 1952 Michael and Rae employed and paid large sums to several attorneys and accountants to adjust their tax liability in the civil case and also to defend them in the criminal actions. The Shapiros claimed deductions for most of these fees in their tax returns for those years. The Commissioner agreed that all fees expended in the civil case were deductible but disagreed as to the amount. Further, he contended that, as a matter of public policy, none of the expense in connection with the defense of the criminal cases was deductible.
The Tax Court allocated the claimed deductions of legal fees to the civil tax case, the defense of Michael, the defense of Rae, and to other unexplained deductions. It granted deductions for all legal expenses in the civil suit and for the successful defense of Rae and disallowed the unexplained expenses and those in the unsuccessful defense of Michael. A petition was filed by the Commissioner to review the granting of the deductions for expenses incurred in the defense of the criminal action against Rae, and that is the sole issue before us. Michael Shapiro is a party here only because he filed joint returns with Rae during the taxable years in question.
The Tax Court allowed a deduction for Rae’s legal expenses in the criminal action as a business expense. It found that the income reported on Rae’s tax returns for 1943 and 1944 came from a business operated by her as a sole proprietorship, income which had to be reported on individual or joint returns. The court said, “The litigation concerned business income and the costs of such litigation are business expenses and are deductible except where a conviction results and public policy denies the deduction.” The critical element in the Tax Court’s analysis is that the source of income reported is from taxpayer’s business.
The Commissioner’s position here is primarily that the expense of defending a criminal tax charge is “personal” in any case and therefore non-deductible; and, in the alternative, if certain legal expenses are deductible, only those expenses relating to cases which directly affect taxpayer’s business meet the test of “ordinary and necessary” expenses. The Commissioner argues that the Tax Court must find that the acts charged as criminal were business acts and that in this ease such requisite finding was not made.
We agree with the Tax Court’s result that the deduction in question should be granted, but we allow the deduction on more broad grounds than those of the Tax Court.
The disposition of this case is governed by Sections 23 and 24 of the Internal Revenue Code of 1939, 26 U.S.C.A., and the appropriate regulations relating thereto. Section 23, Deductions from Gross Income, states in part:
“(1) Trade or business expenses.
“(A) In general. All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including a reasonable allowance for salaries or other compensation for personal services actually rendered;
* * *
“(2) Non-trade or non-business expenses. In the case of an individual, all the ordinary and necessary expenses paid or incurred during the taxable year for the production or collection of income, or for the management, conservation, or maintenance of property held for the production of income.”
Section 24(a) (1), Items Not Deductible, disallows deductions for:
“(1) Personal, living, or family expenses, except extraordinary medical expenses deductible under section 23 (x); * * *"
The proper deduction of legal expenses has presented a continuing problem to the Commissioner and the courts for many years. An examination of relevant cases reveals the following decisional pattern. Generally, the legal expenses for which deductions are claimed fall into two categories — expenses arising from non-tax litigation and those arising from tax litigation. Deductions are claimed as business or non-business expenses.
In the first category, non-tax litigation, the test of deductibility as a business expense has been defined in terms of proximate cause. That is, whether the taxpayer brings an action or defends it, the analysis proceeds in terms of the relationship of the particular lawsuit to the business of the taxpayer. Kornhauser v. United States, 1928, 276 U.S. 145, 152-153, 48 S.Ct. 219, 72 L.Ed. 505. If the trier of fact finds that the litigation is not directly connected with the business of the taxpayer, then the expense is a non-deductible personal item. As ex-ampies, suits involving slander, criminal assault, conspiracy to obstruct justice and incompetency proceedings can all be rationalized in terms of proximate cause. Similar cases have arisen where deductions are claimed as non-business expenses for the production of income or maintenance and conservation of income producing property.
Additionally, on the grounds of “public policy,” courts have denied deductions in non-tax cases for legal expenses arising from unsuccessful defenses in criminal cases. The Supreme Court, however, allowed a deduction for legal expenses in an unsuccessful defense of a civil fraud order brought by the Post Office Department, where the effect of the order was to curtail the taxpayer’s mail order business. Commissioner of Internal Revenue v. Heininger, 1943, 320 U.S. 467, 64 S.Ct. 249, 88 L.Ed. 171.
In the category of legal expenses arising from tax litigation, the element of proximate cause is of less importance. A regulation promulgated under the 1939 Code stated that “[ejxpenses paid or incurred by an individual in the determination of liability for taxes upon his income are deductible.” The 1954 Code expanded this deduction to ordinary and necessary expenses in the determination of any tax. 26 U.S.C.A. § 212(3). In civil suits to determine taxpayer’s liability, deductions for legal expenses have been allowed, whether the civil case is a taxpayer’s suit for recovery of an overpayment, resisting a deficiency successfully or unsuccessfully, the compromise of charges giving rise to liability for criminal and civil fraud, or in attempts to determine and settle tax liability prior to an indictment and conviction for criminal fraud. Thus broad deductions are allowed for reasonable attorney’s fees in civil tax litigation.
Cases involving expenses arising from criminal tax charges complete the pattern. In three cases where taxpayer was convicted, deductions for legal expenses were denied, either on the basis of “public policy” or on the theory that the tax suit related directly to taxpayer’s personal misconduct. In one case in which the defendant was acquitted, the court granted a deduction, rejecting the argument that the legal expenses were personal, and holding that they were necessary and deductible because “a criminal quality was attributed to acts which were performed by the taxpayer in carrying on his trade or business.”
In surveying the pattern of cases, we conclude that there is no essential difference between legal expenses arising in civil and criminal tax cases. Noting that deductions are granted freely for legal expenses arising in contesting civil tax suits, it is proper that a deduction is allowable for similar expenses in criminal suits. Both instances basically involve the “determination” of tax liability referred to in the applicable regulation under the 1939 Code, supra. It logically follows that reasonable legal expenses incident to the determination of income tax liability — whether the litigation be civil or criminal — are deductible expenses under Section 23, subject to proper limitations of “public policy” in unsuccessful criminal defenses.
In the instant case, implicit in the Tax Court’s allowance of the deduction is the assumption that the expenses were ordinary and necessary. There was no need here explicitly to so find. Parenthetically, it is'difficult to conceive of a case in which it would not be ordinary and necessary for a taxpayer defending a criminal tax charge to employ counsel to assist him.
We hold that the legal expenses incurred by the taxpayer in the successful defense of the criminal charge against her were properly deductible in the tax years in question.
The decision of the Tax Court appealed from herein is
Affirmed.
. The Commissioner does not differentiate the issue before us (a successful criminal defense arising from the dismissal of the indictment) from an acquittal on the merits.
. See generally, Brooks, Litigation Expenses and the Income Tax, 12 Tax L. Rev. 241 (1956); McDonald, Deduction of Attorneys’ Fees, 103 U.Pa.L.Rev. 168 (1954). See text and cases collected in 4 Mertens, Law of Federal Income Taxation, § 25 A. 10, § 25.50, § 25.54, and § 25.57; CCH 1960 Stand.Fed.Tax Rep. ¶ 1348.4615 and ¶ 2006.384.
. Under the 1954 Code, deductions are allowed “in connection with the determination, collection, or refund of any tax.” 26 U.S.O.A. § 212(3). In 1952, the Supreme Oourt had held that expenses in contesting gift tax liability were not within the scope of Section 23(a) (2). Lykes v. United States, 1952, 343 U.S. 118, 72 S.Ct. 585, 96 L.Ed. 791.
. Lloyd v. Commissioner of Internal Revenue, 7 Cir., 1932, 55 E.2d 842. The taxpayer here brought and won a suit for a slander made at a trade association convention. This court denied his requested business deductions for attorney fees, holding that a slander action is a personal injury and that his corporation neither profited nor lost by the suit. But cf. Commissioner of Int. Rev. v. People’s-Pittsburgh Trust Co., 3 Cir., 1932, 60 F.2d .187.
. John W. Clark, 1958, 30 T.C. 1330 (prosecutor withdrew warrant in criminal case; business deduction allowed). Cf. Pantages Theatre Co. v. Welch, 9 Cir., 1934, 71 F.2d 68 (rape charge against president of corporation which paid for defense foes; corporate business deduction disallowed).
. Morgan S. Kaufman, 1949, 12 T.C. 1114 (successful defense to charge of conspiracy to obstruct justice, the charge directly resulting from taxpayer’s practice of law; deduction allowed).
. Lewis v. Commissioner of Internal Revenue, 2 Cir., 1958, 253 F.2d 821 (author defended himself against ineompeteney proceedings. Argued that such adjudication would harm sale of his books. Held that, distinguished from the direct attack on taxpayer’s business in Commissioner v. Heininger, 1943, 320 U.S. 467, 64 S.Ct. 249, here the charge was not directed at destroying his trade or business, but was directed at the totality of the individual. Denied business deduction.)
. Trust of Bingham v. Commissioner, 1945, 325 U.S. 365, 65 S.Ct. 1232, 89 L.Ed. 1670 (expenses incurred for legal advice as to the proper methods of distributing trust property; held a non-business deduction).
. Thomas A. Joseph, 1956, 26 T.C. 562 (attorney convicted of felony, jailed, then disbarred; legal expenses in defense not deductible). Cf. National Outdoor Advertising Bureau v. Ilelvering, 2 Cir., 1937, 89 E.2d 878 (consent decree in Sherman Act action; expenses not deductible) .
. Treas.Reg. Ill, § 29.23(a)-15 (1939), as amended, T.D. 5513, 1946-1 Cum.Bull. 61. See 4 Mertens, op. cit. supra note 2, § 25 A. 11, for a discussion of the history and scope of this regulation.
. In Commissioner of Internal Revenue v. Standing, 4 Cir., 1958, 259 E.2d 450, the issue was whether the admittedly deductible legal expense was a business or non-business expense, a determination which controlled whether the deduction could be taken from gross income in arriving at adjusted gross income or whether it must be taken from adjusted gross income in lieu of the standard deduction. Such an issue is not before the court here.
. Williams v. McGowan, 2 Cir., 1945, 152 F.2d 570, 162 A.L.R. 1036; Howard E. Cammack, 5 T.C. 467 (1945).
. Northern Trust Co. v. Campbell, 7 Cir., 1954, 211 F.2d 251 (deficiency
. See note 14 on page 560. charged on estate tax return); Norbert H. Wiesler, 1946, 6 T.C. 1148; Stoddard v. Commissioner of Internal Revenue, 2 Cir., 1945, 152 F.2d 445 (accountant fees).
14. Trust of Bingham v. Commissioner, 1945, 325 U.S. 365, 65 S.Ct. 1232, 89 L. Ed. 1670; James A. Connelly, 1946, 6 T.C. 744.
. Greene Motor Co., 1945, 5 T.C. 314 (compromise agreement).
. Commissioner of Internal Revenue v. Schwartz, 5 Cir., 1956, 232 F.2d 94. Cf. Cecil R. Hopkins, 1958, 30 T.C. 1015 (deduction disallowed where found that the primary purpose of legal expenditures was to avoid criminal prosecution in which taxpayer later pleaded guilty). The Court of Appeals has remanded Hopkins to the Tax Court to take additional evidence. CCH 1960 Stand.Fed.Tax Rep. H 9030.
. Acker v. Commissioner of Internal Revenue, 6 Cir., 1958, 258 F.2d 568 (citing Heininger as authority to deny the deduction) .
. Port v. United States, Ct.Cl.1958, 163 F.Supp. 645; In Richard F. Smith, 1958, 31 T.C. 1, the taxpayer was indicted for evading taxes in five separate years. He was adjudged guilty for two years, and acquitted for three. Taxpayer tried' to deduct all expenses or at least apportion for those years for which he was acquitted. The Tax Court allowed1 no deductions at all, stating that the acts charged (knowingly evading taxes) were-not directly connected with or normally incidental to the carrying on of taxpayer’s business of dentistry. Commissioner makes a similar argument here — that the-act of filing a tax return is a personal-act.
. Commissioner of Int. Rev. v. People’s-Pittsburgh Trust Co., 3 Cir., 1932, 60 F. 2d 187, 189. However, in that case, the-tax returns were not personal returns-hut those of a corporation which the defendant, as chairman of the board, was. required to file.
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
|
songer_casetyp2_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
There are two main issues in this case. The first issue is economic activity and regulation - commercial disputes - insurance disputes. Your task is to determine the second issue in the case. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
WACHOVIA BANK & TRUST CO. v. INDEPENDENCE INDEMNITY CO.
Circuit Court of Appeals, Fourth Circuit.
January 14, 1930.
No. 2897.
W. M. Hendren, of Winston-Salem, N. C., for appellant.
F. P. Hobgood, Jr., of Greensboro, N. C., for appellee.
Before WADDILL, PARKER, and NORTHCOTT, Circuit Judges.
WADDILL, Circuit Judge.
This is an appeal from a judgment of the District Court of the United States for the Middle District of North Carolina, at Winston-Salem, rendered in an action by the. receiver • of a defunct bank, appellant here, to recover on a bond insuring the fidelity of its president, which action was dismissed upon a directed verdict. The facts are as follows:
On April 26, 1926, the Merchants’ Bank & Trust Company was closed by the banking department of the Corporation Commission of North Carolina, and on June 16, 1926, the Wachovia Bank & Trust Company was named as permanent receiver. Pursuant to an order of court, in October, 1926, the receiver arranged for an audit of the Merchants’ Bank & Trust Company, and in the month of December, 1926, received information from the auditors indicating misappropriation, misapplications, and embezzlement of sums of money by Thomas Maslin, the president of the bank. Receivership affairs were under the general supervision of R. G. Stockton, one of the trust officers of the Wachovia Bank & Trust Company, the details being looked after by Thomas H. Haskins, one of its auditors.
Concurrent with the appointment of the receiver, the banking department of the Corporation Commission of the state delivered to the receiver all of the books, records, and papers of the bank, whieh had come into its possession, and included among such records was a package of fidelity-bonds, some written with the National Surety Company, and some with the appellee indemnity company. Among these fidelity bonds so coming into the possession of the receiver were two on Thomas Maslin, one dated November 16, 1921, and one dated November 24, 1925, both in the National Surety Company. The bonds with the appellee company covered two employees of the bank, Bertha Long and C. R. Mastfen. ■
J. S. Duim was the Winston-Salem agent of the National Surety Company, save for the period from November, 1924, to November, 1925, when he gave up that agency and accepted the agency of the appellee company, which agency was in turn surrendered in the fall of 1925, when he resumed the agency of the National Surety Company. Within a day or two after the receiver took charge of the .bank, Thomas Haskins took all of the fidelity bonds of which he had any knowledge to J. S. Dunn, with the request that he chéek them and advise Haskins those that were in force and those that had been superseded. Dunn did this, returning the bonds, indicating one of the National Surety Company’s bonds as being in force, and one as superseded. At the trial the witness Haskins testified that he said nothing to Mr. Dunn at this time about a bond on Maslin in the appellee company, as at that time he did not know anything about Mr. Dunn’s connection with the appellee company, and Mr. Dunn did not mention it.
After the receiver was advised of the misappropriations of Maslin, acting upon the assumption that the National Surety Company was the only company with whieh the bank had any fidelity bonds on Maslin, it filed a claim, in December, 1926, with the National Surety Company for reimbursement in the full amount of the misappropriations, etc., as shown by the audit. Pursuant to an understanding with Mr. Pond, representative of the National Surety Company, instead of undertaking to set out the various items in the claim filed, there was delivered to him, in support of the claim, a copy of the audit. On September 19,1927, the National Surety-Company wrote a letter to counsel for the receiver, advising that it had discovered that during the period of November 16, 1924, to November 16, 1925, it was not surely on Maslin’s fidelity bond. This was the first knowledge receiver had of the existence of the bond in suit. Mr. Haskins went to see Mr. Dunn for verification, and was then advised that for the period of November, 1924, to November, 1925, the appellee company was on Maslin’s bond. Thereupon the receiver, on September 29, 1927, nine months after the discovery of the defalcations, gave notice to the appellee company of the loss and its claim. No trace of the bond in suit was ever found among the books and papers of the bank.
The bond sued on contained the following provision, among others:
“Provided, however, and upon the following express conditions:
“First — That the employer shall within a reasonable time and at all events not later than thirty days after discovery of loss hereunder, notify the surety thereof at its home office.”
The appellee, Independence Indemnity Company, defendant below, denied liability on the bond sued on because of failure to notify in accordance with the provision of the bond, whereupon the receiver, appellant here, brought suit. At the conclusion of all the evidence, the trial court, upon motion of the defendant surety company, directed a verdict in favor of defendant, and entered judgment thereon, from whieh this appeal is taken. Error is assigned to the action of the trial court in sustaining objections of defendant to certain evidence, in directing a verdict in favor of defendant, and in entering and signing a judgment for the defendant, dismissing the action.
A careful consideration of the assignments of error will readily show them all to be without merit. The first assignment is to the court’s refusal to admit certain testimony relating to the financial condition of the president of the defunct bank, and for the faithful conduct of whom the appellee bonding company executed the fidelity bond sued on. The issue under consideration was, whether liability existed in favor of the plaintiff under the bond in suit, for the alleged liability, or shortage in the accounts of the bank’s ex-president, and not whether he was solvent or insolvent generally. Bond, doubtless, might have been executed under which the proposed inquiry would have been pertinent, for instance, where the conditions under whieh liability existed were severable or uncertain, or where the meaning of the undertaking was ambiguous or indefinite. Thompson v. Phenix Ins. Co., 136 U. S. 287, 10 S. Ct. 1019, 34 L. Ed. 408; National Surety Co. v. Long (C. C. A.) 125 F. 887. But here, under the express terms and conditions upon whieh liability existed, and was sought to be enforced, the inquiries were wholly irrelevant and immaterial.
The second assignment of error relates to the merits of the case and the conditions upon whieh the right of recovery is predicated. It is made plain, upon the mere reading of the bond, and in as few words as possible, that liability should exist only upon the express condition: “First — That the employer shall within a reasonable time and at all events not later than thirty days after discovery of loss hereunder, notify the surety thereof at its home office.” Indisputably the loss arose under the bond, and for the full face value thereof, of $10,000, and the question to be determined is: Was proper notice given by the insured of the loss arising under the bond? Manifestly and indisputably, so far as the facts are concerned, it was not. Masliri’s defalcation was known early in December, 1926, and notice thereof was not given to the surety company appellee, until September 29, 1927, some 9 months thereafter. This action, in failing to give notice of the defalcation of Maslin, within a proper time, was inexcusable, and the failure so to do within 30 days from the date of the discovery of loss is conclusive of the right of the plaintiff to recover upon the bond in suit. In this ease, the right of recovery is dependent upon the condition precedent so expressly stated upon the face of the bond, viz. that notice of the defalcation should be given within a reasonable time, and at all events not later than 30 days after the discovery of the defalcation and loss.
Authorities treating of the general subject under consideration will be found almost without limit, and they have been' cited and commented upon, from the viewpoints of opposing counsel, with much ability and force. Only a few of them, however, need be cited here, as this ease falls within a narrow compass, under its own facts and circumstances. National Surety Co. v. Long (C. C. A.) 125 F. 887; New Amsterdam Casualty Co. v. Central Nat. Fire Ins. Co. (C. C. A.) 4 F.(2d) 203; Maryland Casualty Co. v. Bank of England (C. C. A.) 2 F.(2d) 793; Thompson v. Phenix Ins. Co., 136 U. S. 287, 10 S. Ct. 1019, 34 L. Ed. 408; Imperial Fire Ins. Co. v. County of Coos, 151 U. S. 452, 14 S. Ct. 379, 38 L. Ed. 231; American Surety Co. v. Pauly, 170 U. S. 133, 18 S. Ct. 552, 42 L. Ed. 977; Guarantee Co. of North America v. Mechanics’ Sav. Bank & Trust Co., 183 U. S. 402, 22 S. Ct. 124, 46 L. Ed. 253.
In New Amsterdam Casualty Co. v. Central Nat. Fire Ins. Co. (C. C. A.) 4 F.(2d) 203, 204, supra, the surety bond contained this provision: “Provided, however, * * * that the obligee, upon learning of any act which may be made the basis of any claim hereunder, written notice thereof shah be mailed to the surety * • * * within thirty days after so learning of any such act.” Notice was not given within the required time and the court held this failure fatal. The contention of the obligee was that it had exercised due care to give the notice and that that was all the law required. As to this, the court, quoting from National Surety Co. v. Long (C. C. A.) 125 F. 887, supra, said:
“The care or negligence with which an obligor, who fails, seeks to perform his contract, is no defense to an action for damages for his failure. The only test of the right to recover in such an action is the existence of the breach of the covenant. * * * The very purpose of a promise or of a covenant is to relieve the obligee of all inquiry relative to the care or negligence with which the obligor acts in its fulfillment, and to impose upon the latter the absolute obligation to perform it.” '
In Maryland Casualty Co. v. Bank of England (C. C. A.) 2 F.(2d) 793, 796, supra, the defense was that there had been a breach of one of the conditions of the surety bond in suit. This was denominated in the bond, as in the instant ease, an “express condition” and related to certain “monthly comparisons” which the obligee covenanted to, and failed to make. The court said: “As the bond expressly provided that it should fail if these monthly comparisons were not made and as they were not made, the bank cannot recover.”
The evidence in this ease demonstrates that the appellant was not entitled to recover, and hence that the trial court was correct in its rulings, and in instructing judgment in appellee’s favor thereon, as it was also in entering its judgment dismissing the appellant’s ease. The judgment of the trial court is affirmed, with costs to the appellee.
Affirmed.
Question: What is the second general issue in the case, other than economic activity and regulation - commercial disputes - insurance disputes?
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_applfrom
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
UNITED STATES v. CERTAIN LANDS IN CITY OF NEWARK, N. J., etc., et al.
No. 9932.
United States Court of Appeals Third Circuit.
Argued Oct. 13, 1949.
Decided June 15, 1950.
Arthur E. Dienst, Newark, N. J., for appellant.
G. Dixon Speakman, Newark, N. J. (Toner, Speakman & Crowley, Newark, N. J., on the brief), for appellees.
Before BIGGS, Chief Judge, KALOD-NER, Circuit Judge and FEE, District Judge.
KALODNER, Circuit Judge.
Dissatisfaction with the amount of compensation awarded in the court below as “just” for the taking of a leasehold by the United States is the source of this appeal. The only issue raised is whether the learned trial judge applied the evidence submitted to him in such a way as to have commited reversible error.
On February 13, 1946, the United States, exercising its sovereignty and pursuant to 40 U.S.C.A. § 258a, upon a Declaration of Taking and deposit of $650,000, condemned the title in fee simple to the office building known as the Globe Indemnity Building at 20 Washington Place, Newark, New Jersey. Since then, the “just compensation” for the building has been determined and settled and the court below has been concerned with the distribution of the fund to various parties in interest. One of such parties is the appellant, Martin Tittman, who at the time of the condemnation was a tenant in possession operating a luncheonette in an area consisting of approximately 507 square feet at the westerly end of the Halsey Street corridor on the first floor of the Globe Indemnity Building. Tittman’s lease, which was originally executed on November 29, 1944, and which he acquired by assignment from the original lessee in October, 1945, was due to expire on November 30, 1947, without right of renewal. The United States required Tittman to vacate, and he in fact vacated the premises on March 29, 1946. Quite clearly, the remaining nineteen months of the leasehold were appropriated by the United States, and it is for this remainder that Tittman seeks “just compensation”. United States v. Westinghouse Electric & Manufacturing Co., 1950, 70 S.Ct. 644.
The total rental provided for in the lease was $85.00 per month. Upon the evidence submitted, the trial court concluded that the market value of the remaining term was $1926.60. This sum, less the rent reserved, $1615, i. e., $311.60, constitutes the amount awarded to Tittman and which he now contests as inadequate.
Tittman acquired the lease involved from his assignor as part of a transaction, in August, 1945, whereby he purchased from his assignor the luncheonette on the premises. For the price of $5500 Tittman received the equipment, stock, good will and business, a limited guarantee of minimum business, a promise on the part of the seller not to engage in a similar business within 700 yards of the premises for three years, and a promise on the part of the seller to aid Tittman in obtaining either a new lease or the consent of the owner to the assignment of the existing lease. At the time of the purchase, the luncheonette was grossing about $500 per week, but soon after Tittman took over, the gross sales increased to $625 per week, upon which Tittman realized a net return of $100 per week.
The law is clear and settled that since the entire balance of Tittman’s leasehold interest was taken, “The measure of damages is the difference between the value of the use and occupancy of the leasehold for the remainder of the * * term * * * less the agreed rent which the tenant would pay for such use and occupancy.” United States v. Petty Motor Co., 1946, 327 U.S. 372, 381, 66 S.Ct. 596, 601, 90 L.Ed. 729. And despite Tittman’s testimony that he would have earned $8400 in the remaining months of tenancy due him under the lease, “evidence of loss of profits, damage to good will, the expense of relocation and other such consequential losses are refused in federal condemnation proceedings.” United States v. Petty Motor Co., supra, 327 U.S. at pages 377-378, 66 S.Ct. at page 599.
Because leases like that here involved are generally included in the sale of businesses operated on the premises, as indeed occurred in this instance, the difficulty of separating the leasehold value from the business value was especially hard to overcome. At least one of the three witnesses who testified on Tittman’s behalf was unable to express a value of the lease apart from the business; he did say that the short remainder would decrease the value of the business by 50%, and consequently estimated the value of the business at $6000. Another of his experts attempted to fix a value for the lease based on a percentage of the gross receipts of the business, estimating that value at approximately $3000. The third expert estimated the value of the lease at $4000. But the basis for this estimate was under any account confused, being premised primarily on a comparison with sales of business which included leases. Moreover, this witness expressed the view that good will was part of the lease. On the other hand, the expert produced by the owner testified that rentals of premises like those covered by the lease in this case were, in the vicinity, mostly determined on a - flat rental, and it was his opinion that the instant lease had no value in excess of the rent reserved.
The controversy sub judice is in this Court one to which Rule 52(a), Federal Rules of Civil Procedure, 28 U.S.C.A., applies. Rule 81 (a) (7) so provides: United States v. Lambert, 2 Cir., 1944, 146 F.2d 469, 471. We should not, therefore, reverse the factual determination of value made by the District Judge unless it is clearly erroneous: unless on the entire record we are definitely and firmly convinced that a mistake has been committed. United States v. U. S. Gypsum Co., 1948, 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746; Cf. United States v. Yellow Cab Co., 1949, 338 U.S. 338, 70 S.Ct. 177; Graver Tank & Mfg. Co. v. Linde Air Products Co., 1950, 70 S.Ct. 854. That conviction we do not have. The District Judge did, not find Tittman’s experts, whom he saw and heard, convincing, and certainly his judgment' in this respect should not be lightly set aside. The evidence clearly indicates that the value of the lease was substantially affected by its short unexpired term. There was evidence that the percentage method which Tittman advocated involves a breakdown of the gross receipts into categories of merchandise sold, and this was not attempted. Likewise, the evidence certainly supports the conclusion that a flat rental rate is a method of evaluation of the leased premises properly employable in this instance. Finally, it is difficult to see that clear error exists, for the evidence of value was highly conflicting and the compensation awarded is within the range of the evidence. Porrata v. United States, 1 Cir., 1947, 158 F.2d 788, 791. Although Tittman relies to some extent upon the fact that the court below stated the value of the lease in terms of dollars per square foot, we deem this without significance since it is plainly a medium of expression chosen to frame the ultimate conclusion.
For the reasons stated, the judgment of the District Court will be affirmed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
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.
COUNTY OF YAKIMA et al. v. CONFEDERATED TRIBES AND BANDS OF THE YAKIMA INDIAN NATION
No. 90-408.
Argued November 5, 1991
Decided January 14, 1992
Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Stevens, O’Connor, Kennedy, Souter, and Thomas, JJ., joined. Blackmun, J., filed an opinion concurring in part and dissenting in part, post, p. 270.
Jeffrey C. Sullivan argued the cause for petitioners in No. 90-408 and respondents in No. 90-577. With him on the briefs was John V. Staffan.
R. Wayne Bjur argued the cause for respondent in No. 90-408 and petitioner in No. 90-577. With him on the brief was Tim Weaver.
Edwin S. Kneedler argued the cause for the United States as amicus curiae in support of respondent in No. 90-408 and petitioner in No. 90-577. With him on the brief were Solicitor General Starr, Acting Assistant Attorney General Hartman, Deputy Solicitor General Wallace, Peter R. Steenland, Jr., Robert L. Klarquist, and Edward J. Shawaker.
Together with No. 90-577, Confederated Tribes and Bands of the Yakima Indian Nation v. County of Yakima et al., also on certiorari to the same court.
Briefs of amici curiae were filed for the State of Montana et al. by Marc Racicot, Attorney General of Montana, Clay R. Smith, Solicitor, and by the Attorneys General for their respective States as follows: Gale A. Norton of Colorado, Hubert H. Humphrey III of Minnesota, Nicholas Spaeth of North Dakota, and Mark Barnett of South Dakota; for the State of Washington by Kenneth O. Eikenberry, Attorney General, Leland T. Johnson, Senior Assistant Attorney General, and Timothy R. Malone, Special Assistant Attorney General; for La Plata County et al. by Tom D. Tobin and Susan W. Pahlke; for the Mashantucket Pequot Tribe et al. by Melody L. McCoy, Yvonne Teresa Knight, Kim Jerome Gottschalk, Jeanette Wolfley, Reid P. Chambers, Jeanne S. Whiteing, and Robert S. Thompson III; for the National Association of Counties et al. by Richard Ruda and David J. Burman; and for the Washington State Association of Counties by Barnett Kalikow and Robert P. Dick.
Justice Scalia
delivered the opinion of the Court.
The question presented by these consolidated cases is whether the County of Yakima may impose an ad valorem tax on so-called “fee-patented” land located within the Yakima Indian Reservation, and an excise tax on sales of such land.
I
A
In the late 19th century, the prevailing national policy of segregating lands for the exclusive use and control of the Indian tribes gave way to a policy of allotting those lands to tribe members individually. The objectives of allotment were simple and clear cut: to extinguish tribal sovereignty, erase reservation boundaries, and force the assimilation of Indians into the society at large. See, e. g., In re Heff, 197 U. S. 488, 499 (1905). Congress was selective at first, allotting lands under differing approaches on a tribe-by-tribe basis. See F. Cohen, Handbook of Federal Indian Law 129-130 (1982); Gates, Indian Allotments Preceding the Dawes Act, in The Frontier Challenge 141 (J. Clark ed. 1971). These early efforts were marked by failure, however. Because allotted land could be sold soon after it was received, see, e. g., Treaty with Wyandot Nation, Apr. 1, 1850, 9 Stat. 987, 992, many of the early allottees quickly lost their land through transactions that were unwise or even procured by fraud. See Cohen, supra, at 130. Even if sales were for fair value, Indian allottees divested of their land were deprived of an opportunity to acquire agricultural and other self-sustaining economic skills, thus compromising Congress’ purpose of assimilation.
Congress sought to solve these problems in the Indian General Allotment Act of 1887, also known as the Dawes Act, 24 Stat. 388, as amended, 25 U. S. C. §331 et seq., which empowered the President to allot most tribal lands nationwide without the consent of the Indian nations involved. The Dawes Act restricted immediate alienation or encumbrance by providing that each allotted parcel would be held by the United States in trust for a period of 25 years or longer; only then would a fee patent issue to the Indian allot-tee. 24 Stat. 389; see United States v. Mitchell, 445 U. S. 535, 543-544 (1980). Section 6 of the Act furthered Congress’ goal of assimilation by providing that “each and every member of the respective bands or tribes of Indians to whom allotments have been made shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside.” 24 Stat. 390.
In In re Heff, supra, at 502-503, we held that this latter provision subjected Indian allottees to plenary state jurisdiction immediately upon issuance of a trust patent (and prior to the expiration of the 25-year trust period). Congress promptly altered that disposition in the Burke Act of 1906,34 Stat. 182, decreeing that state civil and criminal jurisdiction would lie “at the expiration of the trust period... when the lands have been conveyed to the Indians by patent in fee.” A proviso, however, gave the President authority, when he found an allottee “competent and capable of managing his or her affairs,” to “issu[e]... a patent in fee simple” prior to the expiration of the relevant trust period. Upon such a premature patenting, the proviso specified (significantly for present purposes) not that the patentee would be subject to state civil and criminal jurisdiction but that “all restrictions as to sale, incumbrance, or taxation of said land shall be removed.” Id., at 183.
The policy of allotment came to an abrupt end in 1934 with passage of the Indian Reorganization Act. See 48 Stat. 984, 25 U. S. C. § 461 et seq. Returning to the principles of tribal self-determination and self-governance which had characterized the pre-Dawes Act era, Congress halted further allotments and extended indefinitely the existing periods of trust applicable to already allotted (but not yet fee-patented) Indian lands. See §§461, 462. In addition, the Act provided for restoring unallotted surplus Indian lands to tribal ownership, see §463, and for acquiring, on behalf of the tribes, lands “within or without existing reservations.” § 465. Except by authorizing reacquisition of allotted lands in trust, however, Congress made no attempt to undo the dramatic effects of the allotment years on the ownership of former Indian lands. It neither imposed restraints on the ability of Indian allottees to alienate or encumber their fee-patented lands nor impaired the rights of those non-Indians who had acquired title to over two-thirds of the Indian lands allotted under the Dawes Act. See W. Washburn, Red Man’s Land/ White Man’s Law 145 (1971).
B
The Yakima Indian Reservation, which was established by treaty in 1855, see Treaty with Yakima Nation, 12 Stat. 951, covers approximately 1.3 million acres in southeastern Washington State. Eighty percent of the reservation’s land is held by the United States in trust for the benefit of the Tribe or its individual members; 20 percent is owned in fee by Indians and non-Indians as a result of patents distributed during the allotment era. See Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408, 415 (1989) (plurality opinion). Some of this fee land is owned by the Yakima Indian Nation itself.
The reservation is located almost entirely within the confines of petitioner/cross-respondent Yakima County. Pursuant to Washington law, Yakima County imposes an ad valo-rem levy on taxable real property within its jurisdiction and an excise tax on sales of such land. Wash. Rev. Code §§ 84.52.030,82.45.070 (1989). According to the county, these taxes have been levied on the Yakima Reservation’s fee lands and collected without incident for some time. In 1987, however, as Yakima County proceeded to foreclose on properties throughout the county for which ad valorem and excise taxes were past due, including a number of reservation parcels in which the Tribe or its members had an interest, respondent/ cross-petitioner Yakima Nation commenced this action for declaratory and injunctive relief, contending that federal law prohibited these taxes on fee-patented lands held by the Tribe or its members.
On stipulated facts, the District Court awarded summary judgment to the Tribe and entered an injunction prohibiting the imposition or collection of the taxes on such lands. On appeal, the Court of Appeals for the Ninth Circuit agreed that the excise tax was impermissible, but held that the ad valorem tax would be impermissible only if it would have a “ ‘demonstrably serious’ ” impact on the “ ‘political integrity, economic security, or the health and welfare of the tribe,’ ” and remanded to the District Court for that determination to be made. 903 F. 2d 1207,1218 (CA9 1990) (emphasis deleted) (quoting Brendale, supra, at 431). We granted certiorari. 500 U. S. 903 (1991).
II
The Court’s earliest cases addressing attempts by States to exercise dominion over the reservation lands of Indians proceeded from Chief Justice Marshall’s premise that the “several Indian nations [constitute] distinct political communities, having territorial boundaries, within which their authority is exclusive....” Worcester v. Georgia, 6 Pet. 515, 556-557 (1832). Because Congress, pursuant to its constitutional authority both “[t]o regulate Commerce... with the Indian Tribes” and to make treaties, U. S. Const., Art. I, § 8, cl. 3; Art II, §2, cl. 2, had determined by law and treaty that “all intercourse with them [would] be carried on exclusively by the [Federal Government],” Worcester v. Georgia, supra, at 557, the Court concluded that within reservations state jurisdiction would generally not lie. The assertion of taxing authority was not excepted from this principle. E. g., The Kansas Indians, 5 Wall. 737, 755-757 (1867); The New York Indians, 5 Wall. 761, 771-772 (1867).
The “platonic notions of Indian sovereignty” that guided Chief Justice Marshall have, over time, lost their independent sway. See McClanahan v. Arizona State Tax Comm’n, 411 U. S. 164, 172, and n. 8 (1973); Organized Village of Kake v. Egan, 369 U. S. 60, 71-73 (1962). Congress abolished treatymaking with the Indian nations in 1871, Rev. Stat. §2079, as amended, 25 U. S. C. §71, and has itself subjected the tribes to substantial bodies of state and federal law. This Court’s more recent cases have recognized the rights of States, absent a congressional prohibition, to exercise criminal (and, implicitly, civil) jurisdiction over non-Indians located on reservation lands. See, e. g., New York ex rel. Ray v. Martin, 326 U. S. 496 (1946); see also Cohen, Handbook of Federal Indian Law, at 352, and n. 39. We have even observed that state jurisdiction over the relations between reservation Indians and non-Indians may be permitted unless the application of state laws “would interfere with reservation self-government or impair a right granted or reserved by federal law.” Organized Village of Kake, supra, at 75. In the area of state taxation, however, Chief Justice Marshall’s observation that “the power to tax involves the power to destroy,” McCulloch v. Maryland, 4 Wheat. 316, 431 (1819), has counseled a more categorical approach: “[AJbsent cession of jurisdiction or other federal statutes permitting it,” we have held, a State is without power to tax reservation lands and reservation Indians. Mescalero Apache Tribe v. Jones, 411 U. S. 145, 148 (1973). And our cases reveal a consistent practice of declining to find that Congress has authorized state taxation unless it has “made its intention to do so unmistakably clear.” Montana v. Blackfeet Tribe, 471 U. S. 759, 765 (1985); see also California v. Cabazon Band of Mission Indians, 480 U. S. 202, 215, n. 17 (1987).
Yakima County persuaded the Court of Appeals, and urges upon us, that express authority for taxation of fee-patented land is found in § 6 of the General Allotment Act, as amended. We have little doubt about the accuracy of that threshold assessment. Our decision in Goudy v. Meath, 203 U. S. 146, 149 (1906), without even mentioning the Burke Act proviso, held that state tax laws were “[ajmong the laws to which [Indian allottees] became subject” under §6 upon the expiration of the Dawes Act trust period. And we agree with the Court of Appeals that by specifically mentioning immunity from land taxation “as one of the restrictions that would be removed upon conveyance in fee,” Congress in the Burke Act proviso “manifest[ed] a clear intention to permit the state to tax” such Indian lands. 903 F. 2d, at 1211.
Neither the Yakima Nation nor its principal amicus, the United States, vigorously disputes this. Instead, they contend that § 6 of that Act — the Burke Act proviso included— is a dead letter, at least within the confines of an Indian reservation. The Tribe argues that, by terminating the allotment program and restoring tribal integrity through the Indian Reorganization Act of 1934, Congress impliedly repealed § 6’s jurisdictional grant and returned the law to its pre-General Allotment Act foundations. Congress’ subsequent actions, according to the Tribe, confirm this implication. In 1948, for instance, Congress defined “Indian country” to include all fee land within the boundaries of an existing reservation, whether or not held by an Indian, and pre-empted state criminal laws within “Indian country” insofar as offenses by and against Indians were concerned. See Act of June 25,1948,62 Stat. 757-758, as amended, 18 U. S. C. §§1151-1153; Seymour v. Superintendent of Washington State Penitentiary, 368 U. S. 351 (1962). And in 1953, Congress once again signaled its belief in the dormition of §6 by enacting Pub. L. 280, which authorized States to assume criminal and civil jurisdiction over Indians within Indian country in certain circumstances. See Act of Aug. 15, 1953, 67 Stat. 588.
Though generally in agreement with the Tribe, the United States takes a slightly different tack. It claims that the General Allotment Act removed only those barriers to state jurisdiction that existed at the time of its enactment, e. g., those associated with tribal sovereignty and the trust status of allotted land. The General Allotment Act did not remove — indeed, the argument goes, could not have removed — a jurisdictional bar arising after the Act’s passage. For just such an after-arising jurisdictional bar, the United States points to the same statutes on which the Tribe rests its position. In the United States’ view, these enactments must be construed to pre-empt the application “of state laws (especially state tax laws) to Indians and their property within a reservation.” Brief for United States as Amicus Curiae 14.
In support of their convergent arguments, the Yakima Nation and the United States cite this Court’s unanimous decision in Moe v. Confederated Salish and Kootenai Tribes, 425 U. S. 463 (1976), which they contend repudiates the continuing jurisdictional force of the General Allotment Act. In that case, the State of Montana sought to impose its cigarette sales and personal property taxes, as well as vendor-licensing fees, on Indian residents of a reservation located entirely within the State. It relied for jurisdiction upon § 6 of the General Allotment Act, but did not limit its claim of taxing authority to the reservation’s allottees or even to those activities taking place on allotted reservation fee land. Instead, the State made an “all or nothing” claim to reservation-wide jurisdiction (trust land included), arguing that any scheme of divided jurisdiction would be inequitable. Brief for Appellants in Moe, O. T. 1975, No. 74-1656, p. 17. We declined Montana’s invitation to ignore the plain language of §6, which “[b]y its terms [did] not reach Indians residing” or conducting business on trust lands. Moe, 425 U. S., at 478. The assertion of reservation-wide jurisdiction, we said, could not be sustained. But we went much further: In light of Congress’ repudiation in 1934 of the policies behind the General Allotment Act, we concluded that the Act could no longer be read to provide Montana plenary jurisdiction even over those Indians residing on reservation fee lands:
“The State has referred us to no decisional authority— and we know of none — giving the meaning for which it contends to § 6 of the General Allotment Act in the face of the '.any and complex intervening jurisdictional statutes directed at the reach of state law within reservation lands.... Congress by its more modern legislation has evinced a clear intent to eschew any such ‘checkerboard’ approach within an existing Indian reservation, and our cases have in turn followed Congress’ lead in this area.” Id., at 479.
Reasoning from Moe, the Yakima Nation and the United States argue that if § 6 no longer provides for plenary state jurisdiction over the owners of reservation fee lands, then it cannot support the exercise of the narrower jurisdiction asserted by Yakima County here. They concede, as they must, that in Moe the Court did not address the Burke Act proviso to § 6, which figures so prominently in Yakima County’s analysis. But real property taxes were not at issue in Moe, they argue, making the proviso irrelevant. And because a proviso can only operate within the reach of the principal provision it modifies, cf. United States v. Morrow, 266 U. S. 531, 534-535 (1925), neither the language of § 6 proper nor the proviso can be considered effective after Moe.
We think this view rests upon a misunderstanding of Moe and a misperception of the structure of the General Allotment Act. As to the former: The Tribe’s and the United States’ interpretation of our opinion in Moe reduces ultimately to the proposition that we held § 6 to have been repealed by implication. That is not supportable, however, since it is a “cardinal rule... that repeals by implication are not favored,” Posadas v. National City Bank, 296 U. S. 497, 503 (1936), and since we made no mention of implied repeal in our opinion. Moe was premised, instead, on the implausibility, in light of Congress’ postallotment era legislation, of Montana’s construction of § 6 that would extend the State’s in personam jurisdiction beyond the section’s literal coverage (“each and every allottee”) to include subsequent Indian owners (through grant or devise) of the allotted parcels. This approach, we said, would create a “checkerboard” pattern in which an Indian’s personal law would depend upon his parcel ownership; it would contradict “the many and complex intervening jurisdictional statutes” dealing with States’ civil and criminal jurisdiction over reservation Indians; and it would produce almost surreal administrative problems, making the applicable law of civil relations depend not upon the locus of the transaction but upon the character of the reservation land owned by one or both parties. See Moe, supra, at 478-479.
Thus, even as to § 6 personal jurisdiction, Moe in no way contradicts Goudy v. Meath, which involved the personal liability for taxes of an Indian who not merely owned an allotted parcel, but was, as the language of § 6 requires, himself an allottee. See 203 U. S., at 147, 149. But (and now we come to the misperception concerning the structure of the General Allotment Act) Goudy did not rest exclusively, or even primarily, on the § 6 grant of personal jurisdiction over allottees to sustain the land taxes at issue. Instead, it was the alienability of the allotted lands — a consequence produced in these cases not by § 6 of the General Allotment Act, but by §5 — that the Court found of central significance. As the first basis of its decision, before reaching the “further” point of personal jurisdiction under § 6, id., at 149, the Goudy Court said that, although it was certainly possible for Congress to “grant the power of voluntary sale, while withholding the land from taxation or forced alienation,” such an intent would not be presumed unless it was “clearly manifested.” Ibid. For “it would seem strange to withdraw [the] protection [of the restriction on alienation] and permit the Indian to dispose of his lands as he pleases, while at the same time releasing it [sic] from taxation.” Ibid. Thus, when § 5 rendered the allotted lands alienable and en-cumberable, it also rendered them subject to assessment and forced sale for taxes.
The Burke Act proviso, enacted in 1906, made this implication of §5 explicit, and its nature more clear. As we have explained, the purpose of the Burke Act was to change the outcome of our decision in In re Heff, 197 U. S. 488 (1905), so that § 6’s general grant of civil and criminal jurisdiction over Indian allottees would not be effective until the 25-year trust period expired and patents were issued in fee. The proviso, however, enabled the Secretary of the Interior to issue fee patents to certain allottees before expiration of the trust period. Although such a fee patent would not subject its Indian owner to plenary state jurisdiction, fee ownership would free the land of “all restrictions as to sale, incum-brance, or taxation.” 25 U. S. C. § 349. In other words, the proviso reaffirmed for such “prematurely” patented land what § 5 of the General Allotment Act implied with respect to patented land generally: subjection to state real estate taxes. And when Congress, in 1934, while putting an end to further allotment of reservation land, see 25 U. S. C. §461, chose not to return allotted land to pre-General Allotment Act status, leaving it fully alienable by the allottees, their heirs, and assigns, see Brendale, 492 U. S., at 423 (plurality opinion); Hodel v. Irving, 481 U. S. 704, 708-709 (1987), it chose not to terminate state taxation upon those lands as well.
The Yakima Nation and the United States deplore what they consider the impracticable, Moe-condemned “checkerboard” effect produced by Yakima County’s assertion of jurisdiction over reservation fee-patented land. But because the jurisdiction is in rem rather than in personam, it is assuredly not Moe-condemned; and it is not impracticable either. The parcel-by-parcel determinations that the State’s tax assessor is required to make on the reservation do not differ significantly from those he must make off the reservation, to take account of immunities or exemptions enjoyed, for example, by federally owned, state-owned, and church-owned lands. We cannot resist observing, moreover, that the Tribe’s and the United States’ favored disposition also produces a “checkerboard,” and one that is less readily administered: They would allow state taxation of only those fee lands owned (from time to time) by nonmembers of the Tribe. See Brief for Yakima Nation 16, n. 8; Brief for United States as Amicus Curiae 14, n. 12. See also Brendale, supra, at 422-425 (plurality opinion) (affirming “checkerboard” with respect to zoning power over reservation fee land).
Turning away from the statutory texts altogether, the Yakima Nation argues that state jurisdiction over reservation fee land is manifestly inconsistent with the policies of Indian self-determination and self-governance that lay behind the Indian Reorganization Act and subsequent congressional enactments. This seems to us a great exaggeration. While the in personam jurisdiction over reservation Indians at issue in Moe would have been significantly disruptive of tribal self-government, the mere power to assess and collect a tax on certain real estate is not. In any case, these policy objections do not belong in this forum. If the Yakima Nation believes that the objectives of the Indian Reorganization Act are too much obstructed by the clearly retained remnant of an earlier policy, it must make that argument to Congress. Judges “are not at liberty to pick and choose among congressional enactments, and when two [or more] statutes are capable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective.” Morton v. Mancari, 417 U. S. 535, 551 (1974).
III
Yakima County sought to impose two separate taxes with respect to reservation fee lands, an ad valorem tax and an excise tax on sales. We discuss each in turn, in light of the principles set forth above.
A
Liability for the ad valorem tax flows exclusively from ownership of realty on the annual date of assessment. See Timber Traders, Inc. v. Johnston, 87 Wash. 2d 42, 47, 548 P. 2d 1080, 1083 (1976). The tax, moreover, creates a burden on the property alone. See Wash. Rev. Code § 84.60.020 (1989) (“The taxes assessed upon real property... shall be a lien thereon from and including the first day of January in the year in which they are levied until the same are paid...”); Clizer v. Krauss, 57 Wash. 26, 30-31, 106 P. 145, 146-147 (1910). See also Timber Traders, Inc., supra; In re Electric City, Inc., 43 B. R. 336, 341 (Bkrtcy. Ct. WD Wash. 1984) (dictum). The Court of Appeals held, the Tribe does not dispute, and we agree, that this ad valorem tax constitutes “taxation of... land” within the meaning of the General Allotment Act and is therefore prima facie valid.
The Court of Appeals, however, derived from our decision three Terms ago in Brendale the conclusion that the Yakima Nation has a “protectible interest” against imposition of the tax on Tribe members upon demonstration of the evils described in that opinion, and remanded to the District Court for further findings in that regard. Neither of the parties supports this aspect of the Ninth Circuit’s ruling, believing that the law affords an unconditional answer to permissibility of the tax. We agree.
Brendale addressed a challenge to the Yakima Nation’s assertion of authority to zone reservation fee land owned by non-Indians. The concept of “protectible interest” to which Justice White’s opinion in the case referred, see 492 U. S., at 431, grew out of a long line of cases exploring the very narrow powers reserved to tribes over the conduct of non-Indians within their reservations. See Montana v. United States, 450 U. S. 544, 566 (1981) (citing cases). Even though a tribe’s “inherent sovereign powers... do not extend to the activities of nonmembers,... [a] tribe may... retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” Id., at 565-566 (emphasis added). Brendale and its reasoning are not applicable to the present cases, which involve not a proposed extension of a tribe’s inherent powers, but an asserted restriction of a State’s congressionally conferred powers. Moreover, as the Court observed recently in California v. Cabazon Band of Mission Indians, 480 U. S., at 215, n. 17, we have traditionally followed “a per se rule” “[i]n the special area of state taxation of Indian tribes and tribal members.” Though the rule has been most often applied to produce categorical prohibition of state taxation when there has been no “cession of jurisdiction or other federal [legislative permission],” Mescalero Apache Tribe, 411 U. S., at 148, we think it also applies to produce categorical allowance of state taxation when it has in fact been authorized by Congress. “Either Congress intended to pre-empt the state taxing authority or it did not. Balancing of interests is not the appropriate gauge for determining validity since it is that very balancing which we have reserved to Congress.” Washington v. Confederated Tribes of Colville Reservation, 447 U. S. 134, 177 (1980) (opinion of Rehn-QUIST, J.). If the Ninth Circuit’s Brendale test were the law, litigation would surely engulf the States’ annual assessment and taxation process, with the validity of each levy dependent upon a multiplicity of factors that vary from year to year, and from parcel to parcel. For reasons of practicality, as well as text, we adhere to our per se approach.
B
We think the excise tax on sales of fee land is another matter, as did the Court of Appeals. While the Burke Act proviso does not purport to describe the entire range of in rem jurisdiction States may exercise with respect to fee-patented reservation land, we think it does describe the entire range of jurisdiction to tax. And that description is “taxation of... land.” Yakima County seeks to expand this text by citing our statement in Squire v. Capoeman, 351 U. S. 1 (1956), to the effect that “[t]he literal language of the [Burke Act] proviso evinces a congressional intent to subject an Indian allotment to all taxes” after it has been patented in fee. Id., at 7-8 (emphasis added). This dictum was addressed, however, to the United States' assertion that the General Allotment Act barred only States and localities, and not the Federal Government, from levying taxes on Indian allotments during the trust period. “All taxes,” in the sense of federal as well as local, in no way expands the text beyond “taxation of... land.”
It does not exceed the bounds of permissible construction to interpret “taxation of land” as including taxation of the proceeds from sale of land; and it is even true that such a construction would be fully in accord with Goudy’s emphasis upon the consequences of alienability, which underlay the Burke Act proviso. That is surely not, however, the phrase's unambiguous meaning — as is shown by the Washington Supreme Court’s own observation that “a tax upon the sale of property is not a tax upon the subject matter of that sale.” Mahler v. Tremper, 40 Wash. 2d 405, 409, 243 P. 2d 627, 629 (1952). It is quite reasonable to say, in other words, that though the object of the sale here is land, that does not make land the object of the tax, and hence does not invoke the Burke Act proviso. When we are faced with these two possible constructions, our choice between them must be dictated by a principle deeply rooted in this Court’s Indian jurisprudence: “[Statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.” Montana v. Blackfeet Tribe, 471 U. S., at 766. See also McClanahan v. Arizona State Tax Comm’n, 411 U. S., at 174.
To render this a “taxation of land” in the narrow sense, it does not suffice that, under Washington law, the excise tax creates “a specific lien upon each piece of real property sold from the time of sale until the tax shall have been paid....” Wash. Rev. Code § 82.45.070 (1989). A lien upon real estate to satisfy a tax does not convert the tax into a tax upon real estate — otherwise all sorts of state taxation of reservation-Indian activities could be validated (even the cigarette sales tax disallowed in Moe) by merely making the unpaid tax assessable against the taxpayer’s fee-patented real estate. Thus, we cannot even accept the county’s narrower contention that the excise tax lien is enforceable against reservation fee property conveyed by an Indian seller to a non-Indian buyer. The excise tax remains a tax upon the Indian’s activity of selling the land, and thus is void, whatever means may be devised for its collection. Cf., e. g., Washington v. Confederated Tribes of Colville Reservation, supra, at 154-159 (Indian proprietors may be compelled to precollect taxes whose incidence legally falls on non-Indians); Moe, 425 U. S., at 482 (same).
The short of the matter is that the General Allotment Act explicitly authorizes only “taxation of... land,” not “taxation with respect to land,” “taxation of transactions involving land,” or “taxation based on the value of land.” Because it is eminently reasonable to interpret that language as not including a tax upon the sale of real estate, our cases require us to apply that interpretation for the benefit of the Tribe. Accordingly, Yakima County’s excise tax on sales of land cannot be sustained.
* * *
We hold that the General Allotment Act permits Yakima County to impose an ad valorem tax on reservation land patented in fee pursuant to the Act, but does not allow the county to enforce its excise tax on sales of such land. The Yakima Nation contends it is not clear whether the parcels at issue in these cases were patented under the General Allotment Act, rather than under some other statutes in force prior to the Indian Reorganization Act. E. g., 25 U. S. C. §§ 320, 379,404, 405. We leave for resolution on remand that factual point, and the prior legal question whether it makes any difference.
The judgment is affirmed, and the cause is remanded for further proceedings consistent with this opinion.
It is so ordered.
Section 6 provides in pertinent part:
“At the expiration of the trust period and when the lands have been conveyed to the Indians by patent in fee,... then each and every allottee shall have the benefit of and be subject to the laws, both civil and criminal, of the State or Territory in which they may reside.... Provided, That the Secretary of the Interior may, in his discretion, and he is authorized, whenever he shall be satisfied that any Indian allottee is competent and capable of managing his or her affairs at any time to cause to be issued to such allottee a patent in fee simple, and thereafter all restrictions as to sale, incumbrame, or taxation of said land shall be removed’’ 25 U. S. C. § 349 (emphasis added).
The Yakima Nation does, however, make a preliminary objection to the taxes on the ground that the Washington State
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
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sc_authoritydecision
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G
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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.
BONELLI CATTLE CO. et al. v. ARIZONA et al.
No. 72-397.
Argued October 15, 1973
Decided December 17, 1973
MARSHALL, J., wrote the opinion of the Court, in which Burger, C. J., and Douglas, BreNNAN, White, BlackmuN, and Powell, JJ., joined. Stewart, J., filed a dissenting opinion, post, p. 332. RehNQUist, J., took no part in the consideration or decision of the case.
Elmer C. Coker argued the cause for petitioners. With him on the briefs was Leonard C. Langford.
Dale R. Shumway argued the cause for respondents. With him on the brief was Gary K. Nelson, Attorney General of Arizona.
Briefs of amici curiae urging affirmance were filed by Solicitor General Bork for the United States, and by Evelle J. Younger, Attorney General, Jay L. Shavelson, Assistant Attorney General, and Warren J. Abbott and Jerold A. Krieger, Deputy Attorneys General, for the State of California.
Briefs of amici curiae were filed by Philip E. von Ammon for the Santa Fe Pacific Railroad Co., and by David H. Getches for the Cocopah Tribe of Indians.
Opinion of the Court by
Mr. Justice Marshall, announced by Mr. Justice Brennan.
The question for decision is whether title to land abandoned by the stream of the Colorado River as a result of a federal rechanneling project vests in the State of Arizona, as owner of the beds under navigable streams within its borders, or in petitioner cattle company, as the owner of land riparian to the river at the time of the rechanneling.
The circumstances that give rise to this case are as follows. In 1910, the subject land was conveyed by federal patent, as part of a larger parcel, to the Santa Fe Pacific Railroad Co. A survey conducted in 1905 and 1906, and approved by the Surveyor General of the United States in 1906, indicates that as of the date of the patent, the Santa Fe parcel abutted the east bank of the Colorado River. Upon admission to the Union in 1912, Arizona succeeded the Federal Government to title to the bed of the Colorado River. The exact location of the river in 1912 in relation to the subject property is unclear from the record, but it is generally agreed that between 1903 and 1959 (when it was rechanneled) the river moved gradually eastward, eroding its east bank and depositing alluvion on its west bank, resulting in the submergence by erosion of the subject land. As the river crept eastward, the boundary between upland owners and the state-owned riverbed moved mechanically with it, transferring title to the lands which became part of the riverbed to the State. The operation of Hoover Dam, begun in 1938, reduced the flow of water in the Colorado River and substantially decreased its annual flood stage high-water mark. Nonetheless, by 1955, when the Bonelli Cattle Co. acquired title to the subject portion of the original Santa Fe grant, all but 60 acres in the southeast corner of its parcel was covered by water. In 1959, a Federal Bureau of Reclamation Project deepened and rechanneled the Colorado River in the area of the subject land, thereby confining the stream of the river to a substantially reduced portion of the Bonelli property.
In 1962, the Bonelli Cattle Co. filed the instant action to quiet title to the land from which the river had withdrawn as a result of the federal rechanneling project. The state trial court granted judgment for Bonelli and against the State of Arizona. The Arizona Court of Appeals, the State’s intermediate appellate court, affirmed, upholding Bonelli’s contention that if the changes in the river were accretive, the surfaced land belonged to Bonelli, as a riparian owner, and if the change were avulsive, the land nonetheless belonged to Bonelli under the doctrine of re-emergence.
The Arizona Supreme Court reversed, holding that under the equal-footing doctrine and the Submerged Lands Act, Arizona holds title to the beds of all navigable waters within its borders and thus to the subject land as a result of the gradual eastward movement of the river. The Arizona Supreme Court found that, because the federal rechannelization project was an “engineering relocation of the waters of the river by artificial means,” it was, under state law, an avulsive change, which did not divest the State of its title to the exposed land which had formerly been part of the riverbed. The court denied a rehearing and, in a supplemental opinion, clarified the extent of the dry land owned by the State. It held that the high-water mark of the river, to which the State's ownership extends, was fixed by the natural state of the river as it existed in 1938, before the operation of Hoover Dam. We granted certiorari, 410 U. S. 908 (1973). We hold that the ownership of the subject land is governed by federal law, and that the land surfaced by the narrowing of the river channel belongs, not to the State as owner of the riverbed, but to Bonelli as riparian owner. We need not, therefore, reach the question of whether the Arizona Supreme Court properly determined the average high-water mark of the river.
I
The first issue we must decide is whether state or federal law governs this controversy. The State of Arizona claims title to the subject land by virtue of the equal-footing doctrine and the Submerged Lands Act, the basic principles of which are as follows. When the Original Colonies ratified the Constitution, they succeeded to the Crown’s title and interest in the beds of navigable waters within their respective borders. As new States were forged out of the federal territories after the formation of the Union, they were “admitted [with] the same rights, sovereignty and jurisdiction... as the original States possess within their respective borders.” Mumford v. Wardwell, 6 Wall. 423, 436 (1867). Accordingly, title to lands beneath navigable waters passed from the Federal Government to the new States, upon their admission to the Union, under the equal-footing doctrine. See, e. g., Pollard’s Lessee v. Hagan, 3 How. 212 (1845); Shively v. Bowlby, 152 U. S. 1 (1894); Weber v. Board of Harbor Comm’rs, 18 Wall. 57, 65-66 (1873).
In order for the States to guarantee full public enjoyment of their navigable watercourses, it has been held that their title to the bed of a navigable river mechanically follows the river’s gradual changes in course. See Oklahoma v. Texas, 268 U. S. 252 (1925). Thus, where portions of a riparian owner’s land are encroached upon by a navigable stream, under federal law, the State succeeds to title in the bed of the river to its new high-water mark.
The Submerged Lands Act of 1953 did not disturb these doctrines or their inherent limitations. The Act merely confirmed the States’ pre-existing rights in the beds of the navigable waterways within their boundaries by, in effect, quitclaiming all federal claims thereto. And, consonant with the above-described common-law doctrine concerning title to the bed of a river that has shifted course, the Submerged Lands Act quitclaims all federal rights to title to lands beneath the navigable streams, as “hereafter modified by accretion, erosion, and reliction.” 43 U. S. C. §1301 (a)(1).
The State of Arizona asserts title to the subject land on the basis of the following application of these principles. When Arizona achieved statehood in 1912, it assumed title to the land beneath the stream of the Colorado River, by virtue of the equal-footing doctrine. It subsequently acquired title to the subject land when it was submerged by the river’s eastward movement. The State asserts that once having acquired title, it was not divested of its proprietary interest in the land by the subsequent withdrawal of the water due to the rechanneling of the river.
Having concluded that title to the subject land was thus vested in the State as a matter of settled federal law, the state courts determined that local law controlled whether petitioner, as a riparian owner, had any interest in the land thereafter. As the Court said in Arkansas v. Tennessee, 246 U. S. 158, 176 (1918): “[I]t is for the States to establish for themselves such rules of property as they deem expedient with respect to the navigable waters within their borders and the riparian lands adjacent to them....”
We continue to adhere to the principle that it is left to the States to determine the rights of riparian owners in the beds of navigable streams which, under federal law, belong to the State. But this doctrine does not require that state law govern the instant controversy. The issue before us is not what rights the State has accorded private owners in lands which the State holds as sovereign; but, rather, how far the State’s sovereign right extends under the equal-footing doctrine and the Submerged Lands Act — whether the State retains title to the lands formerly beneath the stream of the Colorado River or whether that title is defeasible by the withdrawal of those waters. As this Court observed in Borax, Ltd. v. Los Angeles, 296 U. S. 10, 22 (1935): “The question as to the extent of this federal grant, that is, as to the limit of the land conveyed,... is necessarily a federal question.... [I] t involves the ascertainment of the essential basis of a right asserted under federal law.”
Arkansas v. Tennessee, supra, and the cases cited therein are not to the contrary. In Arkansas v. Tennessee, for example, we held that federal law governed the question of how far into the river channel a State held title. Only then did this Court turn to state law to determine whether riparian owners had been accorded any rights in that land. But even the State’s disposition of its submerged land vis-a-vis private owners was to be “in each case limited by the interstate boundary,” a matter determined by federal law. 246 U. S., at 176. Similarly, in Shively v. Bowlby, 152 U. S. 1 (1894), the Court held that under settled federal law, the tidelands there at issue belonged to the State in its sovereign capacity; hence whether the State had accorded riparian owners any interests in the tidelands properly remained a matter of local law; “if [the States] choose to resign to the riparian proprietor rights which properly belong to them in their sovereign capacity, it is not for others to raise objections.” Id., at 43. In Barney v. Keokuk, 94 U. S. 324, 338 (1877), the Court left it to the States to decide whether to accord title to the land beneath non-tidal navigable waters to riparian owners after recognizing that under federal law such lands belong to the States. See also Scott v. Lattig, 227 U. S. 229, 24.2 (1913).
The present case, however, does not involve a question of the disposition of lands, the title to which is vested in the State as a matter of settled federal law. The very question to be decided is the nature and extent of the title to the bed of a navigable stream held by the State under the equal-footing doctrine and the Submerged Lands Act. In this case, the question of title as between the State and a private landowner necessarily depends on a construction of a “right asserted under federal law.”
II
We cannot accept the State's argument that the equal-footing doctrine supports its claim to the disputed land. Historically, title to the beds beneath navigable waters is held by the sovereign, Barney v. Keokuk, supra, at 338, as a public trust for the protection of navigation and related purposes.
“[Tjitle to the... lands under water... enures to the State within which they are situated.... Such title... [is] held in trust for the public purposes of navigation and fishery.” Hardin v. Jordan, 140 U. S. 371, 381 (1891).
See United States v. Kansas City Life Ins. Co., 339 U. S. 799, 808 (1950). As this Court observed in an earlier federal water law case:
“Such waters... are incapable of ordinary and private occupation, cultivation and improvement; and their natural and primary uses are public in their nature, for highways of navigation and commerce, domestic and foreign, and for the purpose of fishing....” Shively v. Bowlby, supra, at 11.
The State's title is to the “[riverjbed as a bed,” and the State of Arizona will continue to hold title to the bed beneath the Colorado River to its present high-water mark. But the exposed land involved here is no longer, as described in Shively, “incapable of ordinary and private occupation... [whose] primary uses are public in their nature, for highways of navigation....” The equal-footing doctrine was never intended to provide a State with a windfall of thousands of acres of dry land exposed when the main thread of a navigable stream is changed. It would be at odds with the fundamental purpose of the original grant to the States to afford a State title to land from which a navigable stream had receded unless the land was exposed as part of a navigational or related public project of which it was a necessary and integral part or unless, of course, the artificial accretion was somehow caused by the upland owner himself. There has been no showing that the rechannelization project was undertaken to give the State title to the subject lands for the protection of navigation or related public goals. Indeed, the State of Arizona did not participate in the rechannelization of the Colorado River, although it had implicitly assented to the project.
The advance of the Colorado’s waters divested the title of the upland owners in favor of the State in order to guarantee full public enjoyment of the watercourse. But, when the water receded from the land, there was no longer a public benefit to be protected; consequently, the State, as sovereign, has no need for title. That the cause of the recession was artificial, or that the rate was perceptible, should be of no effect.
Nor does the Submerged Lands Act provide a basis for the State's claim to the subject lands. The Arizona Supreme Court incorrectly construed this Act as a grant by Congress to the States of lands “formerly... beneath navigable waters.” The Act did not abrogate the federal law of accretion, but defined lands beneath navigable waters as being those covered by streams as “hereafter modified by accretion, erosion, and reliction.” Contrary to the implication raised by the Arizona Supreme Court, the Act creates no new rights for the States in the beds of their inland waterways. The Act is not a grant of title to land but only a quitclaim of federal proprietary rights in the beds of navigable waterways. The Act specifically excepts from its scope lands lawfully conveyed or patented by the United States. Since the Act does not extend to the States any interest beyond those afforded by the equal-footing doctrine, the State can no more base its claim to lands unnecessary to a navigational purpose on.the Submerged Lands Act than on that doctrine.
Ill
The question remains as to who owns the subject land under the applicable federal common law. It is, of course, clear that the State of Arizona did hold title to the subject property before the waters of the river receded. Both the State and the Solicitor General of the United States as amicus curiae, urge that the federal common-law doctrine of avulsion is applicable and thus that the State remains holder of title in the former riverbed. Bonelli, the only private claimant, argues that the narrowing of the river course should properly be characterized as an artificial accretion, hence that the disputed land, which had originally been lost from the Bonelli parcel to the river by erosion, should once again belong to it as the riparian owner.
Federal law recognizes the doctrine of accretion whereby the “grantee of land bounded by a body of navigable water acquires a right to any... gradual accretion formed along the shore.” Hughes v. Washington, 389 U. S. 290, 293 (1967); accord, Jones v. Johnston, 18 How. 150, 156 (1856). When there is a gradual and imperceptible accumulation of land on a navigable riverbank, by way of alluvion or reliction, the riparian owner is the beneficiary of title to the surfaced land:
“It is the established rule that a riparian proprietor of land bounded by a stream, the banks of which are changed by the gradual and imperceptible process of accretion or erosion, continues to hold to the stream as his boundary; if his land is increased he is not accountable for the gain, and if it is diminished he has no recourse for the loss.” Philadelphia Co. v. Stimson, 223 U. S. 605, 624 (1912).
There are a number of interrelated reasons for the application of the doctrine of accretion. First, where lands are bounded by water, it may well be regarded as the expectancy of the riparian owners that they should continue to be so bounded. Second, the quality of being riparian, especially to navigable water, may be the land’s “most valuable feature” and is part and parcel of the ownership of the land itself. Hughes v. Washington, supra, at 293; Yates v. Milwaukee, 10 Wall. 497, 504 (1871). Riparianness also encompasses the vested right to future alluvion, which is an “essential attribute of the original property.” County of St. Clair v. Lovingston, 23 Wall. 46, 68 (1874). By requiring that the upland owner suffer the burden of erosion, and by giving him the benefit of accretions, riparianness is maintained. Finally, there is a compensation theory at work. Riparian land is at the mercy of the wanderings of the river. Since a riparian owner is subject to losing land by erosion beyond his control, he should benefit from any addition to his lands by the accretions thereto which are equally beyond his control. Ibid. The effect of the doctrine of accretion is to give the riparian owner a “ ‘ “fee, determinable upon the occupancy of his soil by the river,” and [to afford] the State [a title] to the river bed [which is] likewise a... “qualified” fee, “determinable in favor of the riparians upon the abandonment of the bed by the river.” ’ ”
The doctrine of accretion applies to changes in the river course due to artificial as well as natural causes. County of St. Clair v. Lovingston, supra, at 64-69; United States v. Claridge, 416 F. 2d 933 (CA9 1969), cert. denied, 397 U. S. 961 (1970) (changes in the Colorado River’s course, caused by the construction of Hoover Dam, are accretive). Where accretions to riparian land are caused by conditions created by strangers to the land, the upland owner remains the beneficiary thereof.
But the federal law is otherwise where “a stream suddenly and perceptibly abandons its old channel.” Philadelphia Co. v. Stimson, 223 U. S., at 624-625. Such an avulsive change does not affect title and the boundary established by the former river stream remains at that line, even if the result is to cut off a landowner’s riparian rights. St. Louis v. Ruts, 138 U. S. 226, 245 (1891). The rationale for the doctrine of avulsion is a need to mitigate the hardship that a shift in title caused by a sudden movement of the river would cause the abutting landowners were the accretion principle to be applied. As this Court, quoting from 8 Op. Atty. Gen. 175, observed in Nebraska v. Iowa, 143 U. S. 359, 362 (1892):
“ ‘ [When in] deserting its original bed, the river forces for itself a new channel in another direction, then the nation, through whose territory the river thus breaks its way, suffers injury by the loss of territory greater than the benefit of retaining the natural river boundary, and that boundary remains in the middle of the deserted river bed.’ ”
The Arizona Supreme Court held that because the re-channeling of the Colorado River was an “engineering relocation of the waters of the river by artificial means/’ it was, under state law, an avulsion and did not divest the State of title to the land from which the river had withdrawn. But federal law must be applied with a view toward the limited nature of the sovereign’s rights in the riverbed, and an analysis of the interests of the State, and Bonelli, in light of the rationales for the federal common-law doctrines of accretion and avulsion, compels the conclusion that, as between the State, as owner of the riverbed, and Bonelli, as a riparian owner, the surfacing of the subject land should be treated as accretion; hence title to the disputed land should be vested in Bonelli.
The rationale for the application of the doctrine of avulsion is not applicable to this dispute because of the limited interests of the State in the subject property. The Federal Government, which holds a paramount navigable servitude in the river, determined that it was too wide and shallow to permit navigation in the area of the subject land, and that the river therefore needed to be deepened and rechanneled. The resulting changes in the river’s thread actually enhanced the State’s interest in the navigability of the river. The State’s acquisition of the exposed land here could only be a windfall, since unnecessary to the State’s purpose in holding title to the beds of the navigable streams within its borders. Accordingly, the narrowing of the river and vesting of title to the surfaced land in riparian owners does not detract from the State’s legitimate interest in title to the riverbed, so as to require mitigation of the accretion principle by application of the doctrine of avulsion.
The policies behind the doctrine of accretion are, however, fully applicable. That doctrine guarantees the riparian character of land by automatically granting to a riparian owner title to lands which form between his holdings and the river and thus threaten to destroy that valuable feature of his property. The riparian owner is at the mercy,, not only of the natural forces which create such intervening lands, but also, because of the navigational servitude, of governmental forces which may similarly affect the riparian quality of his estate. Accordingly, where land cast up in the Federal Government's exercise of the servitude is not related to furthering the navigational or related public interests, the accretion doctrine should provide a disposition of the land as between the riparian owner and the State. See Michaelson v. Silver Beach Assn., 342 Mass. 251, 173 N. E. 2d 273 (1961).
Similarly, riparian lands may suffer noncompensable losses or be deprived of their riparian character altogether by the State or Federal Government in the exercise of the navigational servitude. In compensation for such losses, land surfaced in the course of such governmental activity should inure to the riparian owner where not necessary to the navigational project or its purpose. In the case before us, all of the subject land, which composed a substantial portion of Bonelli’s parcel, was lost to the State by erosion to serve the public interest in the navigability of the river. Now that the land has resurfaced in the process of rechannelization, it should return to the estate of the riparian owner.
“No other rule can be applied on just principles. Every proprietor whose land is thus bounded [by a navigable stream], is subject to loss, by the same means which may add to his territory: and as he is without remedy for his loss, in this way, he cannot be held accountable for his gain.” New Orleans v. United States, 10 Pet. 662, 717 (1836).
Finally, recognition of the State’s claim to the subject land would raise a serious constitutional issue as to whether the State’s assertion of title is a taking without compensation, a question which we find unnecessary to decide on our view of the case. As Mr. Justice Stewart warned in Hughes v. Washington, 389 U. S., at 298 (concurring opinion):
“Although the State in this case made no attempt to take the accreted lands by eminent domain, it achieved the same result by effecting a retroactive transformation of private into public property — without paying for the privilege of doing so.... [T]he Due Process Clause of the Fourteenth Amendment forbids such confiscation by a State, no less through its courts than through its legislature, and no less when a taking is unintended than when it is deliberate...
In the exercise of its navigational servitude, the State or Federal Government may decrease the value of riparian property without compensation because the property is held subject to the exercise of that servitude. The government may, without paying compensation, deprive a riparian owner of his common-law right to use flowing water, St. Anthonys Falls Water Power Co. v. St. Paul Water Comm’rs, 168 U. S. 349 (1897), or to build a wharf over the water, Shively v. Bowlby, 152 U. S. 1 (1894). We have held that the State may deprive the owner of the riparian character of his property in the exercise of its navigational servitude. United States v. Rands, 389 U. S. 121 (1967). But there is no claim here by the State that depriving Bonelli of the subject land is necessary to any navigational or related purpose. Cf. United States v. River Rouge Co., 269 U. S. 411, 419 (1926); Colberg, Inc. v. State, 67 Cal. 2d 408, 432 P. 2d 3 (1967), cert, denied, 390 U. S. 949 (1968). Moreover, what is involved in this case is not just the diminution or elimination of riparian rights, but the State’s attempt to completely divest all of Bonelli’s title and interest in the subject land. See Yates v. Milwaukee, 10 Wall., at 504.
IV
We hold that title to the subject land, which was exposed by the federal rechannelization of the Colorado River, is vested in petitioner Bonelli Cattle Co. The judgment of the Supreme Court of Arizona is reversed and the case remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Me. Justice Rehnquist took no part in the consideration or decision of this case.
The federal patent to the Santa Fe Pacific Railroad conveyed a parcel of land in township 19 North of Range 22 West, described as follows:
“The lots one, two, three, four, five and six, the south half of the northeast quarter, the south half of the northwest quarter, the northeast quarter of the southwest quarter, and the southeast quarter of section three, containing five hundred eighty-nine and forty hundredths acres.”
The map of the area, approved by the Surveyor General, indicates that, as of 1906, lots 5 and 6 of the Santa Fe parcel abutted the Colorado River. Petitioner Bonelli Cattle Co. was deeded a parcel of land constituting roughly the eastern half of the original Santa Fe grant. The Bonelli deed described the subject property as the “E[ast] % [of] Section 3, excepting Lot 2 thereof.”
The rechannelization also surfaced a small usable pocket of land on the west bank of the Colorado River which was part of the Bonelli parcel. This land is not in Arizona by virtue of the Boundary Compact between Arizona and Nevada, approved by Congress, Pub. L. 87-50, 75 Stat. 93, and hence is not involved in the present controversy.
11 Ariz. App. 412, 464 P. 2d 999 (1970).
107 Ariz. 465, 489 P. 2d 699 (1971).
108 Ariz. 258, 495 P. 2d 1312 (1972).
Before the operation of Hoover Dam, the river’s annual spring floods covered substantially more of the adjacent land than at any time thereafter. It is to the high-water mark of the river at this annual flood stage that the State of Arizona claims title.
See Joint Res. No. 8, To Admit the Territories of New Mexico and Arizona as States into the Union on an equal footing with the original States, 37 Stat. 39.
67 Stat. 29, 43 U. S. C. § 1301 et seq.
See discussion, infra, at 321-324.
The Colorado River has been determined to be a navigable waterway, Arizona v. California, 283 U. S. 423 (1931), and, once found to be navigable, it remains so. United States v. Appalachian Electric Power Co., 311 U. S. 377, 408 (1940).
Petitioner Bonelli and the Solicitor General of the United States, as amicus curiae, assert that this case should be governed by federal law for a different reason. In Hughes v. Washington, 389 U. S. 290 (1967), this Court held that where an upland property owner traced its title to a pre-statehood federal patent, the owner’s right to accretions is a question of federal law. Id., at 292. We are here again concerned with the right to accretions conveyed by a pre-statehood federal patent, but it is unclear whether, at the time of Santa Fe Pacific’s patent, the portion of the land which ultimately became Bonelli’s parcel was actually riparian. Bonelli argues that its remote grantor, the Santa Fe Pacific Railroad, was given a-patent by the United States which afforded it the right to riparian accretions as governed by federal law, and that it was expected that the river might wander within the parcel of land making parts thereof riparian which were not so at the time of the patent. Petitioner argues that its predecessor was therefore entitled to pass onto his successors all the rights he had in the property- — including his riparian rights. We need not, however, decide whether Hughes compels the application of federal law to the controversy before us, because the State’s claim in this ease is premised on a construction of the federal equal-footing doctrine and the congressionally enacted Submerged Lands Act.
State v. Gill, 259 Ala. 177, 183, 66 So. 2d 141, 145 (1953). For a perceptive discussion of the historical antecedents for the sovereign’s rights in the beds of navigable waterways and of the State’s modem interests in those lands, see Lundquist, Artificial Additions to Riparian Land: Extending the Doctrine of Accretion, 14 Ariz. L. Rev. 315 (1972).
152 U. S., at 11.
The Supreme Court of Arizona relied on this Court’s decisions in Goodtitle v. Kibbe, 9 How. 471 (1850), and Pollard’s Lessee v. Hagan, 3 How. 212 (1845), for the proposition that a federal rechan-neling project could not diminish the extent of the State’s landholdings. Those decisions involved post-statehood federal patents of land covered by navigable waters at the time of statehood. This Court held only that since title to lands beneath navigable waters was vested in Alabama at statehood, the Federal Government did not thereafter own the subject lands, hence its attempted conveyance was void. The Court did not intimate that the operation of federal law could not diminish the State’s title to lands formerly beneath navigable waters.
For a discussion of the navigational-purpose limitation on the State’s interest in the lands beneath its waterways, see United States v. River Rouge Co., 269 U. S. 411, 419 (1926); Colberg, Inc. v. State, 67 Cal. 2d 408, 416, 432 P. 2d 3, 8-9 (1967), cert. denied, 390 U. S. 949 (1968); Michaelson v. Silver Beach Assn., 342 Mass. 251, 173 N. E. 2d 273 (1961). The extent of the State’s interests should not be narrowly construed because it is denominated a navigational purpose. See Zabel v. Tabb, 430 F. 2d 199 (CA5 1970), cert. denied, 401 U. S. 910 (1971) (recognizing conservation as a proper interest). Since the State asserts no public need for ownership of the subject land we do not attempt to define the exact parameters of the permissible public purposes.
In contrast, this Court’s decision in Marine R. & Coal Co. v. United States, 257 U. S. 47 (1921), involved a determination of federal rights in land created when the Federal Government itself filled in tidelands belonging to it under a series of interstate compacts.
108 Ariz., at 259, 495 P. 2d, at 1313 (emphasis added).
43 U. S. C. § 1301 (a)(1).
The legislative history of the Act indicates that it was intended to be merely confirmatory of the State’s existing rights in the beds of their navigable waterways. S. Rep. No. 133, 83d Cong., 1st Sess., pt. 1, pp. 6-8 (1953); People v. Hecker, 179 Cal. App. 2d 823, 4 Cal. Rptr. 334 (1960). See generally 1953 U. S. Code Cong. & Ad. News 1395-1640. Congress was concerned about this Court’s decision in United States v. California, 332 U. S. 19 (1947), which held that the Federal Government had a “paramount interest” in the marginal sea-lands “outside of inland waters, but within territorial limits” — and that the States had no title in those lands. See H. R. Rep. No. 1778, 80th Cong., 2d Sess., 5 (1948). That concern is irrelevant to the case before us, which involves an inland waterway.
43 U. S. C. §1301 (f).
E. g., Nebraska v. Iowa, 143 U. S. 359, 365-366 (1892); Hardin v. Jordan, 140 U. S. 371 (1891); Anderson-Tully Co. v. Tingle, 166 F. 2d 224, 227-228 (CA5), cert. denied, 335 U. S. 816 (1948).
107 Ariz., at
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
|
songer_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.
Orlando CORIZ, Jr., By and Through next friends Orlando CORIZ and Bernice D. Coriz, Plaintiffs-Appellants, v. Arthur MARTINEZ and Carlos Guillen, in their individual capacities only, Defendants-Appellees.
No. 89-2313.
United States Court of Appeals, Tenth Circuit.
Oct. 16, 1990.
John B. Roesler, Smith & Roesler, P.C., Santa Fe, N.M., for plaintiffs-appellants.
Daniel H. Friedman, Simons, Cuddy & Friedman, Santa Fe, N.M., for defendants-appellees.
Before ANDERSON, BARRETT, Circuit Judges, and CHRISTENSEN, District Judge.
The Honorable A. Sherman Christensen, Senior Judge, United States District Court for the District of Utah, sitting by designation.
STEPHEN H. ANDERSON, Circuit Judge.
Plaintiff-appellant Orlando Coriz Jr. appeals a summary judgment entered against him on his procedural due process claim on the grounds that the defendants were qual-ifiedly immune. We affirm.
In the fall of 1987, defendant Guil-len, an aide to defendant Martinez, a gym teacher at Española Valley High School, threw Coriz to the floor in an effort to maintain discipline. Coriz suffered a broken arm and filed suit under 42 U.S.C. § 1983, alleging, inter alia, that his right to procedural due process had been violated because he had no adequate post-deprivation remedy. The district court granted defendants’ motion for summary judgment on this claim, finding that they were quali-fiedly immune because the inadequacy of Coriz’s post-deprivation remedy was not clearly established.
In a situation such as this, “where the State is truly unable to anticipate and prevent a random deprivation of a liberty interest,” Zinermon v. Burch, — U.S. -, 110 S.Ct. 975, 987, 108 L.Ed.2d 100 (1990), “postdeprivation tort remedies are all the process that is due, simply because they are the only remedies the State could be expected to provide,” id. at 985. “[A]n unauthorized intentional deprivation ... by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 3204, 82 L.Ed.2d 393 (1984).
“[Gjovernment officials performing discretionary functions[ ] generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). “[Ojnce a defendant raises a qualified immunity defense the plaintiff assumes the burden of showing that the defendant has violated clearly established law.” Hannula v. City of Lakewood, 907 F.2d 129, 131 (10th Cir.1990).
Coriz has failed to show that it was clearly established that New Mexico did not provide an adequate post-deprivation remedy. As this court noted in Garcia by Garcia v. Miera, 817 F.2d 650, 656 (10th Cir.1987), cert. denied, 485 U.S. 959, 108 S.Ct. 1220, 99 L.Ed.2d 421 (1988), federal judges in New Mexico had split on the question of whether the state provided adequate post-deprivation remedies for students whose procedural due process rights were allegedly violated by excessive punishment.
Coriz argues that the Harlow inquiry into whether the law was clearly established should apply only to the defendants’ acts, not to the adequacy of the remedies available to redress those acts. We concede that this is an unusual application of qualified immunity, but we conclude that the district court applied the law correctly. The right Coriz claims the defendants violated is not simply to be free from random, unauthorized deprivations of liberty, but to be free from such deprivations in the absence of adequate post-deprivation remedies. See Parratt v. Taylor, 451 U.S. 527, 537, 101 S.Ct. 1908, 1914, 68 L.Ed.2d 420 (1981) (“Nothing in [the Fourteenth] Amendment protects against all deprivations of life, liberty or property by the State. The Fourteenth Amendment protects only against deprivations ‘without due process of law.’ ”); see also Hudson v. Palmer, 468 U.S. at 533, 104 S.Ct. at 3203 (“the state’s action is not complete until and unless it provides or refuses to provide a suitable postdeprivation remedy”). Because of the uncertain state of the law, the defendants’ “actions could reasonably have been thought consistent with the right[] they are alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987).
The judgment of the district court is AFFIRMED.
. Coriz’s substantive due process and other claims were tried to a jury, which found against him.
The defendants contend that the adverse verdict on the substantive due process claim "moots” Coriz’s procedural due process claim. We disagree. There are
three categories of corporal punishment. Punishments that do not exceed the traditional common law standard of reasonableness are not actionable; punishments that exceed the common law standard without adequate state remedies violate procedural due process rights; and, finally, punishments that are so grossly excessive as to be shocking to the conscience violate substantive due process rights, without regard to the adequacy of state remedies.
Garcia by Garcia v. Miera, 817 F.2d 650, 656 (10th Cir.1987), cert. denied, 485 U.S. 959, 108 S.Ct. 1220, 99 L.Ed.2d 421 (1988). The jury’s decision that the punishment in this case did not reach the third level in no way foreclosed a finding that the punishment reached the second level.
. Coriz, quoting our statement in Garcia that "conflict is relevant to the Harlow inquiry, but not controlling,” 817 F.2d at 658, contends that the district erred by relying solely upon this split within New Mexico in concluding that the law was not clearly established. The Garcia rule only applies to interjurisdictional conflicts. See Lum v. Jensen, 876 F.2d 1385, 1389 (9th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 867, 107 L.Ed.2d 951 (1990). When there is conflict within a jurisdiction, it cannot be doubted that the law there is not clearly established.
. The district court also could have certified to the New Mexico Supreme Court the question of whether Coriz had a state-law remedy. If the answer was affirmative, Coriz’s claim would fail, for the absence of an adequate post-deprivation remedy is an element of his claim.
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_circuit
|
D
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
UNITED STATES of America, Appellee, v. Albert A. GREENWOOD, Appellant.
No. 85-5552.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 7, 1986.
Decided July 8, 1986.
Wayne Lustig (Judith M. Cofield, Guy, Cromwell, Betz & Lustig, Virginia Beach, Va., on brief), for appellant.
John M. Campbell (Eric H. Holder, Jr., Dept, of Justice, Criminal Div., Washington, D.C., on brief), for appellee.
Before WIDENER, MURNAGHAN and ERVIN, Circuit Judges.
ERVIN, Circuit Judge:
Albert Greenwood was convicted of two counts of violating 18 U.S.C. § 1001 by submitting false reimbursement vouchers to his employer, the Federal Bureau of Investigation (FBI). Greenwood appeals, alleging selective prosecution, erroneous evidentiary rulings, and improper submission of one count to the jury. Finding no merit in these contentions, we affirm.
I.
Greenwood was indicted by a federal grand jury for submitting a false lease in connection with five rent reimbursement vouchers, totaling $3500.00. The FBI routinely reimburses agents for rent expenditures due to job-related, premature termination of an apartment lease. Greenwood’s vouchers were accompanied by a lease purportedly signed by David Hitman. This lease was fabricated, and Hitman’s signature was a forgery. The apartment in question was actually owned by Greenwood’s brother.
The second count of the indictment charged Greenwood with overstating a job-related hotel bill by $187.43. Greenwood submitted a receipt stating the regular price of hotel accommodations, not the discount price actually paid by government travelers.
In response to the indictment, Greenwood requested an evidentiary hearing and related discovery or dismissal of the indictment on selective prosecution grounds. In a decision which Greenwood appeals, the district court denied the motion.
The case then went to trial. At trial, evidence of prior bad acts, specifically Greenwood’s false statements on bank loan documents and his attempt to induce a colleague to verify a false statement with respect to an FBI-related meal reimbursement, were introduced over Greenwood’s objection. Greenwood’s cross examination of a key prosecution witness was limited on relevance grounds. Greenwood also appeals these rulings. Finally, Greenwood contends that the rent misstatements were not material, so this count should not have been submitted to the jury.
II.
In order to prevail on a selective prosecution claim, a defendant must show that enforcement against him “had a discriminatory effect and ... was motivated by a discriminatory purpose.” Wayte v. United States, 470 U.S. 598, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985). The defendant must establish both (1) that he has been “singled out” while others similarly situated have not been prosecuted; and (2) that the decision to prosecute him was “invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to exercise his constitutional rights.” United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir.1974).
A “nonfrivolous showing” of both elements of the claim is sufficient to support a hearing and related discovery on selective prosecution. Wayte, 105 S.Ct. at 1535, 1539-40 (Marshall, J., dissenting). The defendant’s allegations must raise at least a legitimate issue of improper governmental conduct. See United States v. Duncan, 598 F.2d 839, 869 (4th Cir.), cert. denied, 444 U.S. 871, 100 S.Ct. 148, 62 L.Ed.2d 96 (1979). In determining whether a legitimate issue has been raised, the district court may consider the government’s explanation for its conduct. See United States v. Saade, 652 F.2d 1126, 1136 (1st Cir.1981). Appellate reversal of the district court’s finding that a claim is not legitimate and its denial of a hearing and discovery is appropriate only for abuses of discretion. Id.
Greenwood’s allegations of racially based selective prosecution are insufficient to support an evidentiary hearing or discovery. Greenwood’s claim of racial animus and personal vindictiveness on the part of his supervisor was denied by affidavit and has no factual support independent of Greenwood’s own statements. Greenwood has offered nothing beyond pure speculation showing discrimination by or improper influence on the independent agency which made the decision to prosecute, the Department of Justice’s Public Integrity Section. Moreover, he has failed to point out any relevant facts which discovery might provide.
Greenwood’s contention that five similarly situated white agents were not prosecuted is also groundless. Three of the agents were actually black, a fact which undercuts Greenwood’s claim of racial discrimination. The FBI has no record that the fourth alleged incident even occurred. Furthermore, the five cases are not comparable to Greenwood’s repeated, deliberate overstatement of expenditures.
On this record, Greenwood has not made even a nonfrivolous showing of selective prosecution. His request for a hearing and related discovery appears to be a “fishing expedition,” which this court will not sanction. See Berrios, 501 F.2d at 1211. Under the circumstances of this case, the district court’s denial of a hearing and related discovery and its dismissal of the claim on its merits were correct.
III.
Greenwood next contends that evidence of two prior bad acts was improperly admitted against him. Under Federal Rule of Evidence 404(b), prior bad acts are admissible to prove, inter alia, “intent, ... knowledge ... or absence of mistake or accident.” The district court admitted evidence of Greenwood’s bank loan misstatements and meal reimbursement cover-up scheme as probative of intent and absence of mistake. Those admissions were not an abuse of discretion.
In order to be admissible under Rule 404(b), the prior acts must be relevant to an issue other than character. In this case, Greenwood maintained that the overcharges and misstatements were due to confusion or inadvertence, not fraudulent intent. The existence of prior similar wrongdoings reduces the plausibility of a defense of inadvertence or accident. See United States v. Hadaway, 681 F.2d 214, 217 (4th Cir.1982). The attempt to cover up an erroneous FBI meal reimbursement is clearly relevant to the absence of mistake in the closely related context of FBI rent and hotel reimbursements. See United States v. Miller, 573 F.2d 388, 393 (7th Cir.1978) (prior false statements to same people in same transaction admissible); cf. United States v. Percy, 765 F.2d 1199, 1203-04 (4th Cir.1985) (prior cocaine conspiracy with similar conduct, same participants probative of absence of mistake).
Although the erroneous statements on loan documents are not as obviously relevant, they are related because they dealt with the same property as the rental reimbursements. Furthermore, this court has found misstatements in an unrelated context admissible to prove fraudulent intent when the defendant claims innocent error in the situation before the court. See United States v. Johnson, 634 F.2d 735 (4th Cir.1980), cert. denied, 451 U.S. 907, 101 S.Ct. 1974, 68 L.Ed.2d 295 (1981) (fraudulent medicaid forms probative of requisite intent for income tax evasion); see also United States v. Kaufman, 453 F.2d 306, 311 (2d Cir.1971) (prior tax fraud admissible as probative of intent in falsifying affidavits).
The two other components of probativeness under Rule 404(b), reliability and necessity, are also satisfied in this case. See Hadaway, 681 F.2d at 218; United States v. DiZenzo, 500 F.2d 263, 266 (4th Cir.1974). The reliability of the testimony on these issues is not seriously challenged. Because Greenwood’s defense was lack of fraudulent intent, circumstantial evidence undercutting his claims of inadvertence was necessary. See Hadaway, 681 F.2d at 218-19; Johnson, 634 F.2d at 737-38.
Greenwood argues that despite its probative value, evidence of prior acts should have been barred as overly prejudicial. See United States v. Masters, 622 F.2d 83, 87 (4th Cir.1980) (last step of Rule 404(b) admissibility is Rule 403 probative-prejudice balancing test). This argument is not compelling. The prejudice which the rule is designed to prevent is jury emotionalism or irrationality. Id. Falsified financial statements generally do not cause such unfair inflammatory reactions. See Miller, 573 F.2d at 393. Furthermore, the trial court gave a cautionary instruction, which was sufficient to overcome whatever unfair prejudice might have existed. See Masters, 622 F.2d at 87. Finally, this court will defer to a trial court’s Rule 404(b) balancing unless it is an arbitrary or irrational exercise of discretion. Id. at 88. We find no abuse of discretion in the circumstances of this case.
IV.
Greenwood also contends that the district court improperly prohibited two avenues of cross-examination of prosecution witness J.S. Carrico that were intended to prove bias. We question whether these inquiries were in fact probative of bias. Even if they were, their exclusion was at most harmless error.
The first line of questioning involved Carrico’s misstatement to a grand jury of the date on which Greenwood moved out of the hotel for which he received the overstated reimbursement. Greenwood was charged with falsifying only the rate, not the dates, of his hotel stay. Carrico’s recollection of the dates of Greenwood’s stay was, therefore, not relevant to any disputed facts. The trial court decided that this evidence could confuse the jury and excluded it as collateral. We find no reversible error in this ruling. See United States v. Lambert, 463 F.2d 552, 557 (7th Cir.1972).
Greenwood now argues that Carrico’s erroneous grand jury testimony is evidence of bias against him. Bias, defined as “emotional partiality,” United States v. Robinson, 530 F.2d 1076, 1079 (D.C.Cir.1976), is not a collateral issue. United States v. Harvey, 547 F.2d 720, 772 (2d Cir.1976). The point of a bias inquiry is to expose to the jury the witness’s “special motive to lie,” Harvey, 547 F.2d at 722, by revealing facts such as pecuniary interest in the trial, see United States v. Gambler, 662 F.2d 834, 837 (D.C.Cir.1981), personal animosity or favoritism toward the defendant, see United States v. Abel, 469 U.S. 45, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984); Gambler, 662 F.2d at 837, or the witness’s plea agreement with the government. Delaware v. Van Arsdall, — U.S. —, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Once some inquiry into bias has been permitted, a trial court has discretion to limit the cross-examination on the grounds of, inter alia, confusion of the issues or marginal relevance. Id. at 1435.
Despite Greenwood’s argument, exclusion of Carrico’s grand jury testimony on the dates of the hotel stay was not reversible error. In order to be admissible, the proffered evidence must in fact be probative of bias. See 3 J. Weinstein & M. Berger, Weinstein’s Evidence If 607[03], at 607-25 (1985). The mere fact that Carrico testified erroneously before the grand jury on a collateral matter is not necessary proof of animosity or favoritism toward one side of the case. Her recollections were consistent and accurate on the issues material to this case. Greenwood offered no evidence tending to attribute the erroneous grand jury testimony to personal ill-will, as opposed to mere forgetfulness on a minor detail. We refuse to adopt a rule which would automatically make an otherwise irrelevant misstatement by a witness admissible as probative of bias, and we uphold the district court’s exclusion of the evidence in these circumstances.
The district court also excluded evidence that after Carrico testified, she smiled and gave a “thumbs up” sign to another prosecution witness. The meaning of this gesture is ambiguous, since it could have indicated that the other witness should not be afraid of an intimidating courtroom, that Carrico was relieved because her testimony had gone well and was now over, or that the case was going well for “their side,” the prosecution. A strong argument can be made that the gesture was so inherently ambiguous that it had no probative force as to alleged bias.
Even if we assume that the gesture was sufficiently probative of bias to warrant admission, its exclusion still was not reversible error. Under Van Arsdall, 106 S.Ct. at 1438, complete exclusion of bias evidence can constitute harmless error. Given the strength of the case against Greenwood, the other cross-examination of Carrico, and the extremely limited probativeness of the evidence of alleged bias, exclusion of the “thumbs up” evidence was harmless beyond a reasonable doubt. The limitations on cross-examination of Carrico, therefore, do not constitute reversible error.
V.
Finally, Greenwood argues that the rent reimbursement count should not have been submitted to the jury because his misstatement was not material. Greenwood contends that he deserved the $3500.00 reimbursement regardless of whether the money was owed to his brother or to Hitman. This argument is without merit.
A statement is material when it “induce[s] the agency to make a decision whether or not to pay. What makes a statement material is that it is required to put the claimant in a position to receive government benefits, whether rightfully or wrongfully.” United States v. Adler, 623 F.2d 1287, 1291 (8th Cir.1980); see also United States v. Lichenstein, 610 F.2d 1272, 1278-79 (5th Cir.), cert. denied, 447 U.S. 907, 100 S.Ct. 2991, 64 L.Ed.2d 856 (1980). A copy of the apartment lease was required to induce the agency to reimburse Greenwood. The lease Greenwood submitted to fulfill that requirement was fabricated. Greenwood’s misstatement, therefore, was material as a matter of law. See United States v. Ivey, 322 F.2d 523, 529 (4th Cir.1963).
Accordingly, the decision to submit the rent reimbursement count to the jury was correct. Greenwood’s other assignments of error, discussed above, are without merit. His convictions are hereby affirmed.
AFFIRMED.
. The clarity with which this objection was presented to the district court is questionable. Nevertheless, we believe that the objection was sufficient to preserve the issue for appeal.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_const2
|
114
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if fewer than two constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the second greatest number of headnotes. In case of a tie, code the second mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
UNITED STATES of America, Plaintiff-Appellee, v. Michael CATALDO, Defendant-Appellant.
No. 86-3826.
United States Court of Appeals, Fifth Circuit.
Nov. 9, 1987.
Edward J. Castaing, Jr., New Orleans, La. (Court-appointed), for defendant-appellant.
Howat A. Peters, Jr., Asst. U.S. Atty., John P. Volz, U.S. Atty., Peter G. Strasser, Asst. U.S. Atty., Dept, of Justice, New Orleans, La., for plaintiff-appellee.
Before THORNBERRY, GARWOOD and HIGGINBOTHAM, Circuit Judges.
GARWOOD, Circuit Judge:
Appellant Michael Cataldo (Cataldo) was convicted on three counts for bank robbery-related crimes. He brought a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, arguing that his ten-year consecutive sentences under two of the counts violated the double jeopardy clause and that the proper remedy under United States v. Henry, 709 F.2d 298 (5th Cir.1983) (en banc), was to vacate the sentence on one of the two counts and allow the other to stand. The district court granted his motion but found Henry not controlling and vacated the sentences on both counts. The court then allowed the government to elect the count under which Cataldo would be resentenced and imposed a twenty-year sentence under that count. Cataldo appeals, arguing error in the failure to apply Henry and that the twenty-year sentence was vindictive under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). We affirm.
Facts and Proceedings Below
Cataldo was tried before a jury on a three-count superseding indictment charging what was essentially a single course of conduct as violations of (1) the Federal Bank Robbery Act, 18 U.S.C. § 2113(a), (d); (2) the Hobbs Act, 18 U.S.C. § 1951; and (3) conspiracy to violate the Hobbs Act. On the substantive counts, Cataldo was also charged under 18 U.S.C. § 2, which makes an aider and abettor derivatively a principal. The evidence at trial established that Cataldo and his brother, Paul, took a bank official, his wife, and their child hostage at gunpoint, held them overnight, and in the morning forced the bank official to procure over $400,000 from the bank. The jury found Cataldo guilty on all three counts. The district court sentenced him to consecutive ten-year imprisonment terms on the substantive counts and a concurrent ten-year term on the conspiracy count (no fine or special assessment was imposed).
Cataldo moved for postconviction relief under section 2255, arguing that his convictions and sentencing under both section 2113 (Federal Bank Robbery Act) and section 1951 (Hobbs Act) constituted double jeopardy. Cataldo argued that United States v. Henry, 709 F.2d 298 (5th Cir.1983) (en banc), established that the proper remedy was to vacate his section 1951 sentence but not his section 2113 sentence. The district court agreed with Cataldo’s double jeopardy claim but not his remedial arguments. The district court found that although Cataldo had waived his double jeopardy defense to conviction by not raising the issue at trial, he could still challenge his sentences on double jeopardy grounds. The district court concluded that because the same acts (bank extortion) constituted the basis for conviction under sections 2113 and 1951, sentencing Cataldo under both statutes was a violation of double jeopardy. The district court vacated Cataldo’s section 2113 and section 1951 sentences, the government elected to have Ca-taldo resentenced under section 1951 (Hobbs Act), and the court then resen-tenced him thereunder to twenty years imprisonment. The court explained at Catal-do’s resentencing:
“I believe as a matter of law that I have not increased Mr. Cataldo’s sentence, and it is my intention not to increase his sentence but to impose upon him the same sentence which was imposed upon him after his conviction, which I later set aside because I felt that taking the sentence on the two counts together constituted an illegal sentence. So it is not my intention to be vindictive. It is not my intention to punish Mr. Cataldo anymore than he has already been punished. It is my clear intention to sentence him to twenty years, which was my original sentence.”
Subsequently, Cataldo filed this appeal seeking to have his new twenty-year section 1951 sentence vacated and the original ten-year sentence reinstated.
Discussion
Our analysis begins with United States v. Henry, 709 F.2d 298 (5th Cir.1983) (en banc). For his involvement in a shoot-out with state and federal law enforcement officers, Henry was convicted and sentenced to serve five years under 18 U.S.C. § 371, seven years concurrent under 18 U.S.C. § 111, and five years consecutive to the first two sentences under 18 U.S.C. § 924(c). Sections 111 and 924(c) both allow for enhanced penalties for assaulting a federal officer with a firearm. We subsequently ruled that a defendant may not be sentenced under both section 924(c) and section 111, and that a district court could choose to vacate either sentence. United States v. Shillingford, 586 F.2d 372, 376 & n. 7 (5th Cir.1978) (applying Simpson v. United States, 435 U.S. 6, 98 S.Ct. 909, 55 L.Ed.2d 70 (1978)). Armed with these precedents, Henry moved to vacate his section 924(c)(1) sentence under Fed.R.Crim.P. 35. The district court instead chose to vacate the section 111 portion of the sentence, thereby reducing the total twelve-year sentence by only two years instead of the five years desired by defendant. Henry appealed and lost and was granted a rehearing en banc. While his case awaited submission, the Supreme Court decided Busic v. United States, 446 U.S. 398, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980).
In Busic, the Court held that the district court could not choose between sections 111 and 924(c); rather, it could only sentence under section 111. Id., 100 S.Ct. at 1752. The Court reasoned solely as a matter of statutory construction, not constitutional law, that enhanced sentencing under section 924(c) for use or possession of a firearm during the commission of a felony is not permissible when the predicate felony statute, such as section 111, contains its own enhancement provision, because in that situation section 924(c) was simply inapplicable. Id. at 1752-53. The Court, however, expressed no opinion as to whether the court of appeals could vacate the section 111 sentence as well as the section 924 sentence so that the district court could resentence under section 111 in a manner consistent with its original sentencing intent. Id. at 1756 n. 19. On remand, the Third Circuit Court of Appeals held that the district court should be able to resentence under section 111 and, accordingly, vacated both sentences. United States v. Busic, 639 F.2d 940 (3d Cir.), cert. denied, 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981).
Applying Busic, we vacated Henry’s “sentence” and remanded. United States v. Henry, 621 F.2d 763 (5th Cir.1980) (en banc). On remand, the district court vacated the section 924 sentence, reinstated the seven-year section 111 sentence, reduced it to five years, and made it consecutive to the remaining five-year sentence, thereby sentencing Henry to a total of ten years again. Henry again appealed, again lost, and was again granted a rehearing en banc.
The thirteen-member en banc court splintered. Six judges agreed with the result reached by the Third Circuit in Busic on remand and dissented. A plurality of five judges, joined by two specially concurring judges, held that the section 924(c) sentence was the only illegal sentence that the district court could correct under Rule 35, and, consequently, upward resentencing on the section 111 count was impermissible. The plurality stated, however:
“it is clear that one of the two coexisting sentences is absolutely illegal (that under section 924(c)(1)) and the other legal (that under section 111). If the only legal problem in a case is that two sentences cannot coexist (but neither has “priority”), then it arguably makes sense to vacate both of them on a direct appeal.” Henry, 709 F.2d at 308 n. 16.
This distinction, noted by the plurality, is particularly important because it is the emphasis of the two concurring opinions. Judge Reavley, specially concurring, believed that the district court could not change the section 111 sentence because there was nothing about it “that was illegal or required to be corrected in order that some intertwined illegality could be eliminated.” Id. at 317. Judge Jolly, specially concurring, went further and expressly stated that his conclusion would have been different if the two sentences were illegal only because they existed in combination.
“I conclude by saying that if the two sentences under §§ 924 and 111 respectively could have been considered illegal in combination, rather than as one distinctly legal sentence and one distinctly illegal sentence, or if a general sentence had been given by the district court, the conclusion I have reached would be different.” Id. at 318.
Based on these swing votes, we have concluded in dicta that Henry does not apply when “[i]t is the presence of both sentences which makes the entire sentencing scheme illegal.” United States v. Colunga (Colunga I), 786 F.2d 655, 658 n. 4 (5th Cir.1986) (emphasis in original). In other words, Henry is binding precedent only in a Busic-type case where the defendant has been sentenced under a statute that does not proscribe the conduct for which he was prosecuted.
Here, the district court held that Cataldo’s sentences under sections 1951 (Hobbs Act) and 2113 (Federal Bank Robbery Act) violated the double jeopardy prohibition as enunciated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and applied in an indistinguishable situation in United States v. Golay, 560 F.2d 866, 869-70 (8th Cir.1977). Cataldo does not contest this ruling, and he does not argue here that either his original section 1951 sentence or his original section 2113 sentence was invalid considered on its own and apart from his being sentenced on the other count for the same conduct; nor does he claim that either section 1951 or section 2113 is inapplicable to his conduct. Instead, he argues that Henry is controlling here on the theory that “if one of the counts is illegal, because of double jeopardy, and that illegal count is vacated, the remaining count is legal.”
We reject Cataldo’s argument. When a sentencing scheme is illegal because of double jeopardy, there is no one count that a court can identify as illegal. In Colunga I, the Court squarely addressed this remedy problem, though not in terms of Henry. After holding that Colunga was sentenced in violation of double jeopardy for two conspiracies, when in fact only one conspiracy existed, we continued:
“because the illegality of the two conspiracy sentences is intertwined — that is, the presence of both sentences makes the entire sentencing scheme illegal — Colunga cannot put blinders on this Court by purportedly challenging only one of the sentences. Therefore, the proper remedy, for which there is strong authority in this Circuit, is to vacate both sentences and remand to the District Court for resentencing on one count.... The government may select the count on which resentencing is to be based.” 786 F.2d at 658 (citations omitted).
Thus, we hold that Henry is inapplicable and that the district court applied the proper remedy when it vacated Cataldo’s sentences under both acts and resentenced him under the count that the government elected.
Having so decided, we must now address Cataldo’s claim of vindictive resentencing under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), and its progeny. A pithy analysis of this line of cases is set forth in United States v. Colunga (Colunga II), 812 F.2d 196, 199 (5th Cir.1987). In brief, when a trial court imposes a harsher sentence after a successful appeal, due process as interpreted in Pearce requires the court to set forth reasons justifying the increased sentence to overcome a presumption of vindictiveness. This prophylactic rule prevents actual vindictiveness as well as the appeal-chilling appearance of vindictiveness.
Pearce, however, likely does not apply here. The Pearce presumption of vindictiveness applies after a successful appeal by the defendant and only when resentencing poses a “real threat of vindictiveness.” Chaffin v. Stynchcombe, 412 U.S. 17, 93 S.Ct. 1977, 1983, 36 L.Ed.2d 714 (1973). See also Texas v. McCullough, 475 U.S. 134, 106 S.Ct. 976, 979-80, 89 L.Ed.2d 104 (1986). In Chaffin, the Court held that Pearce does not apply to a sentence imposed by a jury that is unaware of the prior, lower sentence because “a jury, unlike the judge who has been reversed, will have no personal stake in the prior conviction and no motivation to engage in self-vindication.” Chaffin, 93 S.Ct. at 1983. Here, the district court itself recognized the double jeopardy violation and granted Cataldo relief. It was not reversed or corrected by another court and it did not have to retry the case.
Further, it is questionable whether the district court in fact increased Cataldo’s sentence. In Henry, the plurality stated in dicta that the increase in Henry’s section 111 sentence called Pearce into play though his overall sentence was reduced. We are not bound, however, by this dicta of a minority of the en banc Court. Moreover, we believe that Henry is distinguishable. Henry’s illegal section 924 sentence did not affect the legality of his section 111 sentence. Thus, Henry had an arguable finality interest in his section 111 sentence. Here, because the section 2113 and section 1951 sentences were illegal only in combination, Cataldo’s double jeopardy challenge to one of the two convictions in effect challenged the entire sentencing plan. See Colunga II, 812 F.2d at 198. When the district court resentenced Cataldo to twenty years under section 1951 for a bank robbery by extortionate means, it merely imposed the same sentence for the same conduct. This did not invade any legitimate finality expectation on Cataldo’s part. See id.
Even assuming, however, that Cataldo’s sentence was increased and that Pearce does apply, the reasons given by the district court are clearly sufficient to overcome the presumption of vindictiveness. In the Colunga cases, we established that executing original sentencing intent may justify upward resentencing. In Colunga I, we noted in dicta:
“Should Colunga persist in his original desire to plead guilty, we see no legal barrier to sentencing Colunga to a more severe sentence. We have recently ruled that correction of a sentence imposed in an illegal manner does not violate double jeopardy even if the corrected sentence increases punishment; and the fact that the defendant has begun serving the original sentence is irrelevant....
“... Although not foreseen in Pearce —and on which we express no ruling—a considerable argument can be made for the proposition that sentencing under an incorrect statutory provision during the original sentencing may be sufficient justification for a more severe sentence for Colunga on remand. Along this same line, the record indicates that the sentencing judge would have given Colunga a more severe sentence but for the mistake—shared by all counsel—as to the possible maximum sentence.” 786 F.2d at 658-59 (footnote omitted).
In Colunga II, the district court had imposed the correct maximum sentence (fifteen years) on remand. The court explained that the harsher sentence reflected its original intent. We affirmed, reasoning that discovery of the appropriate sentencing provision “may be sufficient ‘objective information’ to justify a harsher sentence under Pearce. Such an explanation is certainly sufficient where, as here, the harsher sentence is consistent with the district court’s original sentencing intent, as stated at the previous sentencing hearing.” Id. at 200.
Here, the district court expressly stated at Cataldo’s resentencing that it was simply reimposing the original twenty-year sentence and did not believe that it was increasing Cataldo’s sentence. Even if we label the twenty-year section 1951 sentence an increased sentence, the court’s statement justifies the increase. The district court originally sentenced Cataldo to a total of twenty years for bank robbery by extortionate means. The court spread the sentence over two counts (sections 2113 and 1951). Because this sentencing scheme punished Cataldo twice for one course of action, it violated double jeopardy and the district court set it aside. The district court then sentenced Cataldo to twenty years under only one count, thereby effectuating its intent to impose a twenty-year sentence for the single course of criminal conduct. In light of Colunga II and the district court’s explanation, we hold that the twenty-year sentence was not, and could not reasonably be perceived to be, the product of judicial vindictiveness.
Conclusion
We reject Cataldo’s claims of error and, accordingly, affirm the judgment of the district court.
AFFIRMED.
. At the time of trial, the Federal Bank Robbery Act, 18 U.S.C. § 2113, provided in pertinent part:
"(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association: or
"Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny—
"Shall be fined not more than $5,000 or imprisoned not more than twenty years or both.
"(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device, shall be fined not more than $10,000 or imprisoned not more than twenty-five years, or both.”
In November 1986, Congress amended section 2113(a) to include a clause that expressly brings bank robbery by extortionate means within the coverage of section 2113(a).
.The Hobbs Act, 18 U.S.C. § 1951, provides in relevant part:
“(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts to conspire so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.
“(b) As used in this section—
“(1) The term 'robbery' means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.
"(2) The term ‘extortion’ means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right....”
. Although the superseding indictment did not specify under which statute the conspiracy conviction was sought, presumably it was 18 U.S.C. § 371, which provides in pertinent part:
“If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.”
No complaint is made respecting this count or the sentence thereunder.
. Title 18 U.S.C. § 2 provides:
"(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, 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 ten-year sentence on the unchallenged conspiracy count continued as concurrent to the new sentence under section 1951. Again, no fine or special assessment was imposed.
. Cataldo did raise below (in addition to his double jeopardy claim) the claim that the Hobbs Act did not in any event apply to his conduct. He has not raised that contention on appeal, and we have previously ruled to the contrary, as indicated below. Cataldo has never contended that the Federal Bank Robbery Act is inapplicable to his conduct.
Although this Court has held that the Hobbs Act provides a remedy for bank robbery by extortionate means, United States v. Carpenter, 611 F.2d 113 (5th Cir.), cert. denied, 447 U.S. 922, 100 S.Ct. 3013, 65 L.Ed.2d 1114 (1980), it has not determined if the Federal Bank Robbery Act also proscribes such activity. Only one court has held that bank robbery by extortionate means is not within the coverage of the Federal Bank Robbery Act. See United States v. Colbert, 548 F.2d 1355, 1356 (9th Cir.1977), rev’d and remanded on other grounds, 435 U.S. 371, 98 S.Ct. 1112, 55 L.Ed.2d 349 (1978), on remand, 581 F.2d 799 (9th Cir.1978). Contra United States v. Marx, 485 F.2d 1179, 1182-83 (10th Cir.1973), cert. denied, 416 U.S. 986, 94 S.Ct. 2391, 40 L.Ed.2d 764 (1974); United States v. Snell, 550 F.2d 515, 517 (9th Cir.1977); United States v. Beck, 511 F.2d 997, 1000 (6th Cir.), cert. denied, 423 U.S. 836, 96 S.Ct. 63, 46 L.Ed.2d 55 (1975). Culbert was convicted under both acts, and the Ninth Circuit held that neither act was applicable. The court reasoned that section 2113(a) (Federal Bank Robbery Act) required a "trespassory taking" — a conclusion which the government conceded — and that the Hobbs Act required racketeering. 548 F.2d at 1356-57. The government appealed the decision concerning the Hobbs Act but noted that the concession by the United States Attorney respecting the Federal Bank Robbery Act did not represent the position of the Department of Justice. 98 S.Ct. at 1113 n. 1. The Supreme Court reversed, holding that all activity within the reach of the Hobbs Act’s statutory language was proscribed by it. Id. at 1117. On remand, the Ninth Circuit reaffirmed its dismissal of the Federal Bank Robbery Act conviction, but one judge dissented from that holding. By that time, another panel of the Ninth Circuit had rendered United States v. Snell, 550 F.2d 515 (9th Cir.1977), holding that the Federal Bank Robbery Act was the sole remedy. In United States v. LaBinia, 614 F.2d 1207 (9th Cir.), cert. denied, 446 U.S. 969, 100 S.Ct. 2951, 64 L.Ed.2d 830 (1980), the court overruled Snell and held that bank extortion is chargeable under the Hobbs Act. The court did not resolve the conflict between Culbert and Snell, but a fair reading of LaBinia is that bank robbery by extortionate means is chargeable under both acts. This seems to be the better reading of LaBinia, considering that Culbert rests on the unapproved-of concession by the United States Attorney and the conclusion of all other courts reaching the issue that bank extortion is within the plain language of the Federal Bank Robbery Act. Moreover, Culbert would not apply on the facts of this case because Cataldo’s brother entered the bank. See also Golay, 560 F.2d at 869-70 (bank extortion chargeable under both acts). But see Beck, 511 F.2d at 1000 (bank extortion chargeable only under Federal Bank Robbery Act). Beck's rejection of the Hobbs Act is undermined by the subsequent Supreme Court decision in Culbert, 98 S.Ct. at 1117. This, however, does not impinge Beck's conclusion that the Federal Bank Robbery Act is applicable.
In any event, the 1986 addition of the extortion clause to section 2113(a) (Federal Bank Robbery Act) may in the future affect the analysis. See H.R.Rep. No. 99-797, 99th Cong., 2d Sess., § 51, reprinted in 1986 U.S. Code Cong. & Ad. News 6138, 6156 (intent of House to make section 2113(a) "the exclusive provision for prosecuting bank extortion”).
Question: What is the second most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
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songer_usc2sect
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96
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 11. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
CROSBY v. PACKER et al.
Circuit Court of Appeals, First Circuit.
November 19, 1927.
No. 2160.
1. Bankruptcy <@=>303(4) — Evidence held to show guardian’s agreement to hold realty as security for money borrowed from ward’s estate, precluding recovery by guardian’s trustee in bankruptcy.
Evidence held to show that guardian, at time of borrowing money from ward’s estate, agreed with himself as guardian to bold realty as se-curity for repayment thereof, so as to preclude bankruptcy trustee’s recovering such payment as preferential after guardian’s bankruptcy.
2. Frauds, statute of <@=>56(l) — That agree-, ment to hold realty as security was not in writing did not make it invalid.
That agreement to hold real estate as security was not reduced to writing did not render it invalid.
3. Liens <@=>7 — Oral agreements, creating equitable interests, are enforceable in Massachusetts.
Oral agreements, creating equitable interests in property, when established, are recognized and enforced in Massachusetts.
4. Bankruptcy <@=>161 (2) — Bankrupt’s payment of debt within four months of bankruptcy, under right which vested more than four months before bankruptcy, held not unlawful preference (Bankruptcy Act, § 47a, cl. 2, and § 60b [II USCA §§ 75, 96]).
Where bankrupt, while solvent and more than seven years before filing of involuntary petition, borrowed money from his ward under agreement with himself as guardian to hold real estate as security for repayment thereof, ward’s estate acquired an equitable interest or lien in the real estate and its proceeds, and payment of proceeds of realty in part satisfaction of the debt within four months of filing of petition did not constitute an unlawful preference, under Bankruptcy Act, § 60b (11 USCA § 96), and bankruptcy trustee acquired no rights in the realty or its proceeds, under Bankruptcy Act, § 47a, cl. 2 (11 USCA. § 75).
5. Bankruptcy <@=>163 — Giving of insurance policy payable to wife and having no surrender value, to secure loan, and payment of money borrowed, held not “unlawful preference.”
Bankrupt’s transfer of insurance policy, payable to Ms wife and having no surrender value, to secure money borrowed, and payment of such money, were not preferential, since the transaction did not result in diminution of Ms distributable estate.
TEd. Note. — For other definitions, see Words and Phrases, Second Series, Unlawful Preference.]
Appeal from the District Court of the United States, for the District of Massachusetts; James M. Morton, Judge.
Suit by Arthur P. Crosby, as trustee of Fred W. Sproul, against said Sproul and others, to recover alleged preferences, in which Henry W. Packer, as guardian of Ella F. De Coster, intervened. From a decree of partial recovery to plaintiff (17 F.[2d] 325), plaintiff appeals.
Affirmed.
John J. Hartigan, of Boston, Mass. (George V. Phipps and Phipps, Durgin & Cook, all of Boston, Mass., on the brief), for appellant.
Henry W. Packer, of Boston, Mass. (Allen, Abbot & Packer, of Boston, Mass., on the brief), for appellees.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
BINGHAM, Circuit Judge.
This is a proceeding in equity, brought by the trustee in bankruptcy of one Sproul to recover as preferences, under section 60b of the Bankruptcy Act (11 USCA § 96), certain payments made by Sproul individually to himself as guardian of Ella F. De Coster, an insane ward. At the time the proceeding was brought (May 3, 1926), Sproul had settled his account as guardian in the probate cobrt, and his resignation had (on February 9, 1926) been accepted. On May 19, 1926,, Henry W. Packer was appointed guardian of the insane person, and was allowed to intervene as defendant. The proceeding was originally brought against Sproul, as guardian, and three savings banks, in which the alleged preferences had been deposited in the ward’s account. The ease was tried in the District Court upon certain agreed facts and the oral testimony of three witnesses.
It appears that in the latter part of 1917 and the first part of 1918 Sproul borrowed from the estate of his ward $5,500, for which he gave notes for that amount, payable to himself as guardian, with interest at 6 per cent.; that he did so because the income received from the savings banks in which the money of the ward was then deposited was insufficient to meet her bills in the institution whei’e she was confined; that he was solvent and in good credit at the time, and by so loaning the money the income was made sufficient to pay the ward’s bills; that at that time he owned certain real estate in Allston; that when he borrowed this money “he intended that this real estate should be held as security for it, and used the money on that understanding”; that his wife then agreed to let her dower interest in this real estate stand for the loan; that in November, 1925, Sproul became insolvent; that December 10, 1925, he made an assignment for the benefit of his creditors; that February 20, 1926, an involuntary petition in bankruptcy was filed against him; and that on March 5, 1926, he was adjudged a bankrupt.
In November, 1925, and within four months of the filing of the petition, Sproul sold the Allston real estate (his wife releasing dower), netting therefrom $3,500, which, on November 19,1925, he deposited in two of the three savings .banks to his ward’s account. About the same time (November, 1925), he borrowed $1,000 from a friend, giving as security an insurance policy upon his life, payable to his wife. This policy had no cash surrender value, and his wife pledged her interest in it to enable him to raise the money to be used towards repaying the loan from his ward’s estate. This sum was deposited November 19,1925, in one of the savings banks, to the ward’s account. He also borrowed at this time from his sister the sum of $120 for the express purpose of repaying to that extent the amount borrowed from the ward’s estate, which was likewise deposited November 20, 1925, in one of the savings banks, to the credit of the ward’s account. In his final account as guardian, the difference between the sums thus repaid ($4,620) and the $5,500 originally borrowed was covered by a charge for his services, and the notes given were thus satisfied.
The only witnesses were Sproul, his wife, and a lady, who was formerly his bookkeeper, but had ceased to be such at the time of the trial. The District Court found that to the extent the ease depended upon the testimony of these witnesses they had testified with substantial accuracy, and that their testimony should be accepted; that “Sproul, at the time of loaning [borrowing] the money and thenceforward, regarded the Allston property as held by him as security for the loan,” and being of the opinion that an equitable interest or trust had thus been created in the real estate in favor of the ward’s estate, it held that the payment of the net proceeds of the real estate to the ward’s estate, though within four months of the filing of the petition in bankruptcy, was not a preference.
As to the $1,000 borrowed on the life insurance policy, the District Court found that the insurance policy was payable to the wife; that it had no cash surrender value; that the wife pledged her interest in it “to enable her husband to raise the money to repay to that extent what he had borrowed from the ward’s estate”; and held that the $1,000 was not recoverable by the trustee.
As to the $120 that wa's borrowed from the sister and paid into the ward’s estate, while it was found that it was borrowed “for the express purpose of paying it to his ward’s estate, to repay to that extent the amount borrowed,” the District Court ruled that it was recoverable.
By his assignments of error the trustee (appellant) contends that the court erred (1) in finding that a binding agreement or contract was made between Sproul as an individual and himself as guardian to hold the Allston property as security for the $5,500 loan, and in ruling that the Allston property was charged with a trust or equitable lien in favor of the ward’s estate; and (2) in finding and ruling that the $1,0.00 borrowed of a friend did not increase the total indebtedness of the bankrupt, and that the payment of the $1,000 to the ward’s estate was not a preferential payment-.
No appeal was taken by the defendants from the decree awarding the trustee the $120. It is therefore not open to us to inquire whether the decree in that respect is correct or not.
As to the question presented by the first assignment, we are satisfied that there was substantial evidence from which it reasonably could be found that, at the time the loan of $5,500 was made, it was agreed that the Allston real estate was to be held by the bankrupt in trust and as security for its repayment. There was little, if any, evidence that could be said to be in conflict with this conclusion. Whether this agreement was in fact made depended almost wholly upon the credit to he attached to the oral testimony given in open court by the witnesses called in its support. The court below has found that these witnesses testified truthfully, and such being the ease this court accepts its finding. On this record it cannot be said that their testimony was untruthful, and should be rejected, even if in a given case facts might appear authorizing such action by this court.
The fact that the agreement (to hold the real estate as security) was not reduced to writing does not render it invalid. 27 Corpus Juris, 324.
Agreements creating equitable interests in property, when established, are recognized and enforced in Massachusetts, where this contract was made. Westall v. Wood, 212 Mass. 540, 99 N. E. 325; Mass. Trust Co. v. MacPherson (C. C. A.) 1 F.(2d) 769, and eases there cited. See 37 Corpus Juris, 308, 321, 322, 326.
By the agreement, made while Sproul was solvent and some seven years prior to the filing of the petition, the ward’s estate acquired an equitable interest or lien in the real estate and its proceeds, and, as the rights of the ward’s estate therein arose at the time the agreement was made, the payment and receipt of the proceeds in part satisfaction of the loan did not constitute an unlawful preference or transfer, though made within four months of the filing of the.petition. It was not an agreement or promise to give security in the future, but was for a present right, and by the payment and receipt of the proceeds, before the filing of tbe petition, the ward’s estate acquired the legal title thereto. Mass. Trust Co. v. MacPherson (C. C. A.) 1 F.(2d) 769, 771, 772; Petition of Post (C. C. A.) 17 F.(2d) 555.. The trustee acquired no rights in the real estate or its proceeds by virtue of section 47a, cl. 2, of the Bankruptcy Act of 1898, as amended in 1910 (11 USCA § 75); for such rights as are conferred upon him by that section arise as of the date of the filing of the petition. At that time the bankrupt, having previously sold the real estate and paid the proceeds into the ward’s estate, had no right, title, or interest in the real estate or its proceeds, and no creditor had acquired rights therein by attachment or otherwise to which the trustee could succeed. Mass. Trust Co. v. MacPherson (C. C. A.) 1 F.(2d) 769, 771; In re Snelling (D. C.) 202 F. 259; same ease on appeal Clark v. Snelling (C. C. A.) 205 F. 240; Bailey v. Baker Ice Machine Co., 239 U. S. 268, 36 S. Ct. 50, 60 L. Ed. 275; Fairbanks v. Wills, 240 U. S. 642, 36 S. Ct. 466, 60 L. Ed. 841; Martin v. Commercial Nat. Bank, 245 U. S. 513, 38 S. Ct. 176, 62 L. Ed. 441; 4 Remington on Bankruptcy, pp. 271, 272, 284, 286, 296, 303.
The transfer of the insurance policy, payable to tbe wife, to secure the repayment of the $1,000 borrowed from a friend, the policy having no cash surrender value then or afterwards, was not a preference. It in no way reduced the assets of the bankrupt’s estate available to creditors. In re Simmons & Griffin (C. C. A.) 255 F. 521; Remington on Bankruptcy, §§ 1243, 1247, 1653. Neither do we regard the payment into the ward’s estate of the $1,000 borrowed on the policy as creating a preference. The money was borrowed on the understanding that it was to be used to repay the ward’s estate; it was on this understanding that the wife transferred her interest in the policy to secure the loan, and which made the loan possible. The bankrupt could not lawfully use the money for any other purpose and he never attempted to. It did not increase his assets available to creditors generally. The transaction, though different in form, was in substance and effect the same as though the friend had paid the $1,000 directly into the ward’s estate. It is not claimed, if the transaction had taken this form, that the payment would have been a preference.
The decree of the District Court is affirmed, with costs to the appellee Packer, guardian.
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 11? Answer with a number.
Answer:
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