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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Joe B. MORRIS and Virginia Taylor Morris, Individually and as Co-partners, d/b/a Houston Taylor Motors, Successors of Houston Taylor, d/b/a Houston Taylor Motors.
No. 14824.
United States Court of Appeals Eighth Circuit.
May 12, 1953.
David P. Findling, Associate General Counsel, National Labor Relations Board, and A. Norman Somers, Asst. General Counsel, National Labor Relations Board, Washington, D. C., for petitioner.
Edgar E. Bethell, Fort Smith, Ark., for respondents.
PER CURIAM.
Order of National Labor Relations Board enforced, on petition for enforcement, and stipulation filed with Board.
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:
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songer_usc2
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14
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What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 42. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
UNITED STATES of America, Appellant, v. Wilbur G. WARD, Circuit Court Clerk and Registrar, George County, Mississippi, et al., Appellees.
No. 21717.
United States Court of Appeals Fifth Circuit.
May 25, 1965.
Rehearing Denied June 24, 1965.
Peter Smith, Harold H. Greene, Attys., Dept, of Justice, Washington, D. C., Robert E. Hauberg, U. S. Atty., Jackson, Miss., John Doar, Acting Asst. Atty. Gen., Frank E. Schwelb, Gerald P. Chop-pin, Peter S. Smith, Attorneys, Department of Justice, Washington, D. C., for appellant.
Peter M. Stockett, Jr., Sp. Asst. Atty. Gen., Jackson, Miss., William T. Bailey, Lucedale, Miss., William A. Allain, Asst. Atty. Gen., Jackson, Miss., Joe T. Patterson, Atty. Gen., of State of Mississippi, for appellees.
Before WOODBURY, WISDOM, and BELL, Circuit Judges.
Of the Mrst Circuit, sitting by designation.
BELL, Circuit Judge.
This appeal involves the right of Negroes to vote in George County, Mississippi. It is from an order of the District Court granting only partial relief.
On April 13, 1962, the Attorney General, acting in the name of the United States, filed a complaint against Eldred “W. Green, Circuit Court Clerk and Registrar of George County; and the State of Mississippi, under 42 U.S.CA. § 1971, as .amended by Part IV of the Civil Rights Act of 1957 and Title VI • of the Civil Rights Act of 1960. The complaint alleged that the defendants had engaged in .racially discriminatory acts with respect to voter registration. It was alleged that more stringent standards were applied to Negro applicants for registration than to white applicants, that Negroes were .arbitrarily denied the opportunity to register, that the Registrar failed and refused to afford Negro applicants the isame opportunity to register as was afforded to white applicants, and failed and refused to register Negroes who possessed the same or similar qualifications as white applicants who had theretofore been registered. It was said that these deprivations were pursuant to a pattern and practice. The prayer of the complaint was for findings that the acts and practices described were racially discriminatory, constituted deprivations of the right to vote secured by 42 U.S.C.A. § 1971(a), that such deprivations were pursuant to a pattern and practice, and for injunctive relief.
On April 24, 1962, the District Court restrained defendant Green from applying different and more difficult tests to Negroes than whites, delaying or refusing to register qualified Negroes, requiring Negroes to name members of the county executive committee, the election commissioners and other officials as a part of the test for registration; requiring Negroes to meet with the election commissioners in order to register; and from registering only citizens with whom he was personally acquainted.
After a period of skirmishing through the use of the Federal Rules of Civil Procedure, the defendants filed their answer on December 13, 1962 denying the alleged discriminatory acts and practices, challenging the jurisdiction of the court and the constitutionality of 42 U.S.C.A. § 1971(b), (c), (d) and (e). On January 23, 1964 the defendants filed, without success, separate motions to dismiss the complaint on the ground that the State Board of Election Commissioners had accepted defendant Green’s resignation as registrar on January 22, 1964 and had appointed Wilbur Ward as his successor on the same date.
The case came on for final hearing on January 27, 1964 and the District Court entered its findings of fact and conclusions of law and order on February 19, 1965. Ward had previously been substituted for Green as a party defendant.
The voting age population of George County by race, as of the 1960 census, was 5,276 whites and 580 Negroes. There were 24 Negroes on the voter registration books at the time of the trial. The number of whites on the books exceeded 5,276, no doubt due to a failure to purge the rolls of those who had died or moved away. The most recent reregistration of voters in the county was in 1935. Eight Negroes were registered in that year, two in 1936, one in 1939, one in 1943, one in 1947, one in 1955, five in 1962 and four in 1963. Between 1955 and the entry of the restraining order of April 24, 1962, only one Negro was registered. The Registrar in office for the period 1948 to January 1956 registered 397 whites and one Negro. The Registrar from January 1956 to January 1960 registered 1,349 whites and no Negroes. From the inception of his term in 1960 until he began to retain application forms on May 21,1960, Registrar Green registered 77 whites and no Negroes. At the time of the trial, 685 written applications for registration were on file in the Registrar’s office, dating from May 21, 1960 to December 30, 1963. These show that during the portion of this period ending with the date of the restraining order, April 24, 1963, Mr. Green registered 281 whites and no Negroes, while rejecting two whites and 15 Negroes. After the entry of the restraining order and during the remainder of the period, he accepted 351 whites and 9 Negroes while rejecting 10 whites and 17 Negroes.
Considerable evidence was adduced on the trial demonstrating that illiterate and semi-literate whites were registered-both before and after the date in 1955 when the statutory standards for registration were changed, and after which date a greater degree of literacy was required. Moreover, it was clear that Mr. Green assisted whites in registering but not Negroes. This assistance was in the form of suggestions as to answers, and leniency in grading. Additional discrimination against Negroes came in the form of assigning white applicants sections of the state constitution for interpretation which were simpler in form than those given to Negroes. Negro applicants were told on occasion that the registration books were closed, or that they would have to meet with a committee or simply that they could not register. One Negro applicant was told that he would have to file a statement certifying his desire to register which statement would be presented to the election commissioners. There is evidence that discrimination in the form of assigning Negroes more difficult sections of the constitution transpired even after the entry of the restraining order. For example, 64 percent of the white applicants were assigned § 30 of the constitution, the simplest section of the constitution used by Mr. Green, to interpret while only 24 percent of the Negroes were given this section.
The testimony of Mr. Ward indicates that he intended to conduct the office of Registrar without discrimination. He would strike any white person from the voter rolls who had admitted at the trial that he was unqualified, but he did not plan to investigate unqualified applicants who did not testify at the trial. His purpose would be to follow the Mississippi law in the operation of his office, including the constitutional interpretation requirements. He submitted an affidavit to this court under date of March- 25, 1965 showing that during hife tenure in office 195 people had applied for registration; 191 white and 4 Negroes, and that he had registered 170 of the whites and 2- of the Negroes while rejecting the others. The percentage of the voting age Negroes who were registered had increased from approximately two percent at the time of suit to three percent at the time of trial, a period of nearly two years.
The District Court found as a fact that Registrar Green had desisted from most of his discriminatory practices after the entry of the restraining order, but had continued to illegally assist white registrants, and had wrongfully passed a number of white illiterates. The Registrar was permanently enjoined from discriminating in the administration of the registration law, including the processing, testing, grading and notification of applicants. The use of sections of the state constitution for interpretation was restricted to 25 to be selected by the Registrar and which could be readily understood by the average voter in George County, with the added requirement that the sections be drawn at random by the applicant from a container. No persons were to be registered who could not read and write reasonably well, and who could not give reasonably satisfactory answers to the questions contained on the official application form. No help was to be given to any applicant except as to answering questions regarding the proper use of the form. The Registrar was directed to request the election commissioners to examine the registration records and to expunge the names of all illiterates thereon. The United States was given access to the registration records, and permission to make copies of them every four months during the next ensuing twelve months.
The State of Mississippi was dismissed as a party defendant, and the court failed to make a finding as to a pattern or practice under § 1971(e). This action and inaction of the court is assigned as error. The failure of the District Court to give relief in the form of freezing so as to afford Negro applicants the opportunity to register under the same standards applied to whites already on the voting rolls was also assigned as error. In addition, and this relief was sought for the first time in a proposed decree submitted to the District Court after trial, it is urged that the District Court should have ordered the registration of nine named Negro applicants who had filled out application forms demonstrating that they were as qualified as whites whose applications for registration had theretofore been accepted.
I.
The District Court erred in dismissing the complaint as to the State of Mississippi. The contention that § 601 (b) of the Civil Rights Act of 1960, 42 U.S.C.A. § 1971(c), *****8 either does not authorize suits by the United States against a state, or, in any event is unconstitutional has now been settled by the Supreme Court adversely to defendants. United States v. Mississippi, 1965, 380 U.S. 128, 85 S.Ct. 808, 13 L.Ed.2d 717. The court pointed out that the language of the statute clearly permits the United States to sue a state in a suit such as this, and that the Fifteenth Amendment gave Congress the power to so provide. It was noted that the law for many years has been that the United States may institute proceedings against states to protect federally guaranteed rights of citizens.
This authority is over and above the necessity of joining the state in a suit requesting relief in the form of freezing. See United States v. State of Mississippi (Walthall County), 5 Cir., 1964, 339 F.2d 679; and United States v. Duke, supra.
II.
The District Court also erred in failing to make a specific finding that the disclosed discrimination against Negroes in the voter registration process was pursuant to a pattern and practice. It is now settled that such a finding, where sought, must be made, and may not be pretermitted. This follows from the clear language of the statute, 42 U.S.C.A. § 1971(e):
“(e) In any proceeding instituted pursuant to subsection (c) of this section in the event the court finds that any person has been deprived on account of race or color of any right or privilege secured by subsection (a) of this section, the court shall upon request of the Attorney General and after each party has been given notice and the opportunity to be heard make a finding whether such deprivation was or is pursuant to a pattern or practice. * * * ”
See our express holdings to this effect in United States v. State of Mississippi (Walthall County), supra; and United States v. Logue, 5 Cir., 1965, 344 F.2d 290. See also United States v. Mayton, 5 Cir., 1964, 335 F.2d 153.
In United States v. Fox, 5 Cir., 1964, 334 F.2d 449, and United States v. Logue, supra, we deemed it the better practice to remand for consideration of this question in the first instance by the District Court. However, the appeals there were from motions for preliminary injunction. Here the appeal is from an order entered after a final hearing and we think good judicial administration warrants, if indeed it does not dictate, final disposition in light of the complete record. We hold that the evidence as a matter of law demands a finding that the discrimination here in issue was pursuant to a pattern and practice within the meaning of § 1971(e), supra.
III.
Discrimination having been found in the voter registration process in George County against Negro applicants, and it having also now been held that such deprivation of rights thereunder was pursuant to a pattern and practice, we come then to the question of the relief to be accorded. The United States sought relief in the form of freezing. For a discussion of the freezing principle, see United States v. Duke, supra, and the authorities there cited. We hold that it was error for the District Court not to have granted such relief.
Defendants rely on United States v. Atkins, 5 Cir., 1963, 323 F.2d 733, where this court held that relief by way of the freezing principle would be appropriate only where there was no alternative whereby justice could be obtained, and suggested that purging the registration rolls of improperly registered whites might be such an alternative. See discussion in United States v. State of Louisiana, E.D. La., 1963, 225 F.Supp, 353, 396-397, aff’d, 1965, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709, outlining the deficiencies of purging. Thereafter in United States v. Duke, and United States v. State of Mississippi (Walthall County), both supra, this court invoked the freezing principle to afford relief under circumstances similar to those here-presented. Further light was shed on this problem and principle by the Supreme Court in affirming the freezing relief granted in United States v. State of Louisiana, supra. Justice Black, speaking for the court, said:
“This leaves for consideration the District Court’s decree. We bear in mind that the court has not merely the .power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future. * * * ”
We hold that freezing must be invoked in this case on remand in the form and manner outlined in the decree which is to be entered. See Part V, infra.
IV.
We come now to consider whether the court erred in having failed to order the registration of the nine named Negro applicants on the basis of their prior applications in the light of treatment theretofore accorded white applicants. We think the relief to be accorded under the decree that is to be entered on remand is an adequate vehicle for the vindication of the right of the applicants to register and the disposition of this phase of the case is thus left for disposition under that decree.
These applicants may follow the plan promulgated in the decree along with all other Negro applicants who may wish to seek registration. However, their applications should be promptly reconsidered, and they should be registered without delay if they meet the standards set out in the plan.
V.
The United States has submitted a suggested decree at our request for entry on remand. Defendants responded to it at our request, and have filed written objections to some -parts of it. This matter has had our careful consideration, and has been weighed in the balance of the long delay since suit was filed, the discrimination shown in the record, and the relative ease with which the small number of Negroes of voting age in George County (580) may be accommodated for registration. The District Court is directed upon remand to enter forthwith the following judgment in this matter, the form and substance of which is to some extent analogized with our decisions in the Duke and Walthall County cases.
“In accordance with and pursuant to the opinion of the United States Court of Appeals for the Fifth Circuit in the within matter, this court finds that the successive registrars of voters of George County, Mississippi have engaged in acts and practices which have deprived Negro citizens of George County of their right to register to vote without distinction by reason of race, and that such deprivation has been pursuant to a pattern or practice of discrimination against Negro citizens in the registration processes in George County, Mississippi.
“By virtue of and pursuant to the mandate of the United States Court of Appeals for the Fifth Circuit in this cause, it is ordered, adjudged, and decreed by the Court that Defendants Wilbur G, Ward, the State of Mississippi, their agents, officers, employees and successors in office be and each is hereby permanently enjoined from
“1. Engaging in any act or practice which involves or results in distinctions based on race or color between Negro citizens and other citizens in the registration for voting process in George County, Mississippi.
“2. Determining the qualifications of citizens in George County, Mississsippi in any manner or by any procedure different from or more stringent than the following which have heretofore been used by registrars of George County and their agents in determining the qualifications of white applicants:
“(a) He is a citizen and is or will be 21 years of age or older at the time of the next election;
“(b) He, at the time of the next election, has or will have resided in the State two years and in the election district in which he intends to vote one year;
“(c) He embraces the duties and obligations of citizenship as demonstrated by his willingness to take and sign the oath to bear allegiance to the Constitution of the United States and the State of Mississippi; provided, however, that any errors or omissions in filling out or signing the oath on the application form shall not be a basis for rejection, except that an applicant may be rejected if he refuses to sign the oath (or affirmation) after being specifically requested to sign the oath and being shown by the registrar or his agent where to sign;
“(d) He is not disqualified by reason of conviction of a disqualifying crime, insanity or idiocy;
“(e) He is able to demonstrate a reasonable ability to read and write by completion of Questions 1-18 of the application form with assistance by the registrar or his agents, as needed, and as has heretofore been given to white registrants; provided, however, the section of the Mississippi Constitution to be copied shall be selected by lot but in no event shall an applicant be required to copy any section which exceeds four lines as printed in the Mississippi Constitution, Mississippi Code of 1942;
Provided further that no applicant shall be rejected for an error or omission in his application which is not material in determining whether the applicant meets the substantive requirements set out in paragraph 2(a), (b), (c), and (d); nor shall any applicant be rejected for any other error or omission relating to his substantive qualifications as set forth in -paragraph 2(a), (b), (c), and (d) in his application unless such error or omission has been specifically pointed out and explained to him by the registrar or his agent and the applicant refuses to supply the requested information.
“The provisions of this paragraph (2) shall remain in full force and effect until such time as:
“(a) The proper local officials of George County, Mississippi, order an entirely new registration of all voters in George County. No such registration shall take place, however, until the officials conducting the registration shall notify all of the parties to this suit of the requirements, standards, and procedures to be used for such reregistration by the filing of a petition or motion, and until a hearing can be held by this Court and findings made that the requirements, standards and procedures to be used insure that such reregistration will comply fully with the Constitution and laws of the United States and the valid constitutional provisions and laws of the State of Mississippi and that no discrimination by reason of race or color will be made in the administration of the registration procedures in said new registration; In the event of such a new registration, each applicant shall be subjected to the same procedures and be required to meet the same standards as every other applicant without regard to whether or when he had been previously registered to vote; or
(b) It has been shown to the satisfaction of this Court that the effect of the pattern or practice of discrimination against Negroes seeking to register to vote in George County have been overcome. No such showing, however, may be made to this Court until after one year from the entry of this judgment. Any modification of the requirements of this paragraph (2) shall be consistent with the provisions of § 101(a) of the Civil Rights Act of 1964, and any amendment thereto.
“3. It is further ordered that defendant Wilbur G. Ward, his agents, employees, and successors, in conducting registration of voters in George County, Mississippi, are enjoined and ordered to:
a. Afford each applicant for registration an opportunity to apply and complete the application form whether either the registrar or deputy registrar is present; u
“b. Advise each applicant, when he or she applies, whether the applicant is accepted or rejected; if accepted, the applicant must be registered at that time; If rejected the applicant must be informed of the reason or reasons for his rejection and must be advised of his right to apply directly to this Court to be registered as provided in paragraph (4) hereof.
“c. Receive and process each applicant as expeditiously as possible to the extent that the physical facilities of the registration office permit but in no case less than three applicants at one time and in no case refuse to process fewer than three applications at one time. The office of the registrar shall be open during the office hours observed by defendant Ward in his capacity as the clerk of the courts of George County for registration from Monday through Friday of each week except on holidays during the twelve month period following the entry of this order.
“4. Any applicant for registration hereafter rejected or not given the opportunity to apply by the defendant Ward, his agents, employees, or successors, may in accordance with 42 U.S.C. 1971 (e) apply to this, court, or to a voting referee to be appointed by and in the discretion, of this court no more than 20 days after receipt by the court of the first application, to have his qualifications determined. The court or such referee shall register all such applicants who meet the standards established in this order.
“5. It is further ordered that the defendant Ward, his agents, employees, and successors in office shall file a written report with the clerk of this Court and shall mail a copy thereof to the Plaintiff’s attorneys on or before the fifth day of each month. Said reports shall contain the name and race of each applicant for registration from the previous monthly period, the date of the application, the action taken on the application, and if the applicant is rejected, the specific reason or reasons for rejecting the application. The first of such reports shall be submitted on the fifth day of the month following the date of this order and shall cover and include the aforementioned information for the period from the date of the last application form, presented at the trial of this case on January 27 and 28, 1964, through the month immediately preceding the issuance of the first report: Provided however that defendant Ward shall be allowed twenty days from the date hereof to file the first report in the event twenty days would not be available otherwise under the provisions of this paragraph.
“6. The defendant Ward, his deputies, agents, and successors in office shall, until further order of this Court, make the registration records of Getirge County, Mississippi available to attorneys or agents of the United States at any and all reasonable times in the circuit clerk’s office in Lucedale for the purpose of inspection, copying, and photographing.
“7. Jurisdiction is retained of this cause for all purposes and especially for the purpose of issuing any and all additional orders as may become necessary or appropriate for the purposes of modifying and/or enforcing this order.
“8. Costs in this Court are awarded to plaintiff.”
Reversed and remanded for further proceedings not inconsistent herewith.
. These facts should he considered in the light of the progressively more onerous requirements for registration under the Mississippi law. See United States v. Duke, 5 Cir., 1964, 332 F.2d 759, for a summary of these requirements. The facts of this case demonstrate that Negro applicants have made little progress toward registration whatever the requirements.
. In pertinent part:
“* * * Whenever, in a proceeding instituted under this subsection any official of a State or subdivision thereof is alleged to have committed any act or practice constituting a deprivation of any right or privilege secured by subsection (a) of this section, the act or practice shall also be deemed that of the State and the State may be joined as a party defendant and, if, prior to the institution of such proceeding, such ofiicial has resigned or has been relieved of his ofiice and no successor has assumed such oflice, the proceeding may be instituted against the State.”
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 42. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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sc_petitionerstate
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13
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the petitioner. If the petitioner is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
FRANCIS, WARDEN v. FRANKLIN
No. 83-1590.
Argued November 28, 1984
Decided April 29, 1985
BRENNAN, J., delivered the opinion of the Court, in which White, MARSHALL, Blackmun, and Stevens, JJ., joined. Powell, J., filed a dissenting opinion, post, p. 327. Rehnquist, J., filed a dissenting opinion, in which Burger, C. J., and O’Connor, J., joined, post, p. 331.
Susan V. Boleyn, Assistant Attorney General of Georgia, argued the cause for petitioner. With her on the brief were Michael J. Bowers, Attorney General, James P. Googe, Jr., Executive Assistant Attorney General, Marion 0. Gordon, First Assistant Attorney General, and William B. Hill, Jr., Senior Assistant Attorney General.
Ronald J. Tabak argued the cause for respondent. With him on the brief was John Charles Boger.
Justice Brennan
delivered the opinion of the Court.
This case requires that we decide whether certain jury instructions in a criminal prosecution in which intent is an element of the crime charged and the only contested issue at trial satisfy the principles of Sandstrom v. Montana, 442 U. S. 510 (1979). Specifically, we must evaluate jury instructions stating that: (1) “[t]he acts of a person of sound mind and discretion are presumed to be the product of the person’s will, but the presumption may be rebutted” and (2) “[a] person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted.” App. 8a-9a. The question is whether these instructions, when read in the context of the jury charge as a whole, violate the Fourteenth Amendment’s requirement that the State prove every element of a criminal offense beyond a reasonable doubt. See Sandstrom, supra; In re Winship, 397 U. S. 358, 364 (1970).
1 — 1
Respondent Raymond Lee Franklin, then 21 years old and imprisoned for offenses unrelated to this case, sought to escape custody on January 17, 1979, while he and three other prisoners were receiving dental care at a local dentist’s office. The four prisoners were secured by handcuffs to the same 8-foot length of chain as they sat in the dentist’s waiting room. At some point Franklin was released from the chain, taken into the dentist’s office and given preliminary treatment, and then escorted back to the waiting room. As another prisoner was being released, Franklin, who had not been reshackled, seized a pistol from one of the two officers and managed to escape. He forced the dentist’s assistant to accompany him as a hostage.
In the parking lot Franklin found the dentist’s automobile, the keys to which he had taken before escaping, but was unable to unlock the door. He then fled with the dental assistant after refusing her request to be set free. The two set out across an open clearing and came upon a local resident. Franklin demanded this resident’s car. When the resident responded that he did not own one, Franklin made no effort to harm him but continued with the dental assistant until they came to the home of the victim, one Collie. Franklin pounded on the heavy wooden front door of the home and Collie, a retired 72-year-old carpenter, answered. Franklin was pointing the stolen pistol at the door when Collie arrived. As Franklin demanded his car keys, Collie slammed the door. At this moment Franklin’s gun went off. The bullet traveled through the wooden door and into Collie’s chest killing him. Seconds later the gun fired again. The second bullet traveled upward through the door and into the ceiling of the residence.
Hearing the shots, the victim’s wife entered the front room. In the confusion accompanying the shooting, the dental assistant fled and Franklin did not attempt to stop her. Franklin entered the house, demanded the car keys from the victim’s wife, and added the threat “I might as well kill you.” When she did not provide the keys, however, he made no effort to thwart her escape. Franklin then stepped outside and encountered the victim’s adult daughter. He repeated his demand for car keys but made no effort to stop the daughter when she refused the demand and fled. Failing to obtain a car, Franklin left and remained at large until nightfall.
Shortly after being captured, Franklin made a formal statement to the authorities in which he admitted that he had shot the victim but emphatically denied that he did so voluntarily or intentionally. He claimed that the shots were fired in accidental response to the slamming of the door. He was tried in the Superior Court of Bibb County, Georgia, on charges of malice murder — a capital offense in Georgia— and kidnaping. His sole defense to the malice murder charge was a lack of the requisite intent to kill. To support his version of the events Franklin offered substantial circumstantial evidence tending to show a lack of intent. He claimed that the circumstances surrounding the firing of the gun, particularly the slamming of the door and the trajectory of the second bullet, supported the hypothesis of accident, and that his immediate confession to that effect buttressed the assertion. He also argued that his treatment of every other person encountered during the escape indicated a lack of disposition to use force.
On the dispositive issue of intent, the trial judge instructed the jury as follows:
“A crime is a violation of a statute of this State in which there shall be a union of joint operation of act or omission to act, and intention or criminal negligence. A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking or intention or criminal negligence. The acts of a person of sound mind and discretion are presumed to be the product of the person’s will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted. A person will not be presumed to act with criminal intention but the trier of facts, that is, the Jury, may find criminal intention upon a consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted.” App. 8a-9a.
Approximately one hour after the jury had received the charge and retired for deliberation, it returned to the courtroom and requested reinstruction on the element of intent and the definition of accident. Id., at 13a-14a. Upon receiving the requested reinstruction, the jury deliberated 10 more minutes and returned a verdict of guilty. The next day Franklin was sentenced to death for the murder conviction.
Franklin unsuccessfully appealed the conviction and sentence to the Georgia Supreme Court. Franklin v. State, 245 Ga. 141, 263 S. E. 2d 666, cert. denied, 447 U. S. 930 (1980). He then unsuccessfully sought state postconviction relief. See Franklin v. Zant, Habeas Corpus File No. 5025 (Super. Ct. Butts Cty., Ga., Sept. 10, 1981), cert. denied, 456 U. S. 938 (1982). Having exhausted state postconviction remedies, Franklin sought federal habeas corpus relief, pursuant to 28 U. S. C. §2254, in the United States District Court for the Middle District of Georgia on May 14, 1982. That court denied the application without an evidentiary hearing. App. 16a.
Franklin appealed to the United States Court of Appeals for the Eleventh Circuit. The Court of Appeals reversed the District Court and ordered that the writ issue. 720 F. 2d 1206 (1983). The court held that the jury charge on the dis-positive issue of intent could have been interpreted by a reasonable juror as a mandatory presumption that shifted to the defendant a burden of persuasion on the intent element of the offense. For this reason the court held that the jury charge ran afoul of fundamental Fourteenth Amendment due process guarantees as explicated in Sandstrom v. Montana, 442 U. S. 510 (1979). See 720 F. 2d, at 1208-1212. In denying petitioner Francis’ subsequent petition for rehearing, the panel elaborated its earlier holding to make clear that the effect of the presumption at issue had been considered in the context of the jury charge as a whole. See 723 F. 2d 770, 771-772 (1984) (per curiam).
We granted certiorari. 467 U. S. 1225 (1984). We affirm.
I — H I
The Due Process Clause of the Fourteenth Amendment “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U. S., at 364. This “bedrock, ‘axiomatic and elementary’ [constitutional] principle,” id., at 363, prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime. Sandstrom v. Montana, supra, at 520-524; Patterson v. New York, 432 U. S. 197, 210, 215 (1977); Mullaney v. Wilbur, 421 U. S. 684, 698-701 (1975); see also Morissette v. United States, 342 U. S. 246, 274-275 (1952). The prohibition protects the “fundamental value determination of our society,” given voice in Justice Harlan’s concurrence in Winship, that “it is far worse to convict an innocent man than to let a guilty man go free.” 397 U. S., at 372. See Speiser v. Randall, 357 U. S. 513, 525-526 (1958). The question before the Court in this case is almost identical to that before the Court in Sandstrom: “whether the challenged jury instruction had the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of... state of mind,” 442 U. S., at 521, by creating a mandatory presumption of intent upon proof by the State of other elements of the offense.
The analysis is straightforward. “The threshold inquiry in ascertaining the constitutional analysis applicable to this kind of jury instruction is to determine the nature of the presumption it describes.” Id., at 514. The court must determine whether the challenged portion of the instruction creates a mandatory presumption, see id., at 520-524, or merely a permissive inference, see Ulster County Court v. Allen, 442 U. S. 140, 157-163 (1979). A mandatory presumption instructs the jury that it must infer the presumed fact if the State proves certain predicate facts. A permissive inference suggests to the jury a possible conclusion to be drawn if the State proves predicate facts, but does not require the jury to draw that conclusion.
Mandatory presumptions must be measured against the standards of Winship as elucidated in Sandstrom. Such presumptions violate the Due Process Clause if they relieve the State of the burden of persuasion on an element of an offense. Patterson v. New York, supra, at 215 (“[A] State must prove every ingredient of an offense beyond a reasonable doubt and... may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense”). See also Sandstrom, supra, at 520-524; Mullaney v. Wilbur, supra, at 698-701. A permissive inference does not relieve the State of its burden of persuasion because it still requires the State to convince the jury that the suggested conclusion should be inferred based on the predicate facts proved. Such inferences do not necessarily implicate the concerns of Sandstrom. A permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury. Ulster County Court, supra, at 157-163.
Analysis must focus initially on the specific language challenged, but the inquiry does not end there. If a specific portion of the jury charge, considered in isolation, could reasonably have been understood as creating a presumption that relieves the State of its burden of persuasion on an element of an offense, the potentially offending words must be considered in the context of the charge as a whole. Other instructions might explain the particular infirm language to the extent that a reasonable juror could not have considered the charge to have created an unconstitutional presumption. Cupp v. Naughten, 414 U. S. 141, 147 (1973). This analysis “requires careful attention to the words actually spoken to the jury..., for whether a defendant has been accorded his constitutional rights depends upon the way in which a reasonable juror could have interpreted the instruction.” Sandstrom, supra, at 514.
A
Franklin levels his constitutional attack at the following two sentences in the jury charge: “The acts of a person of sound mind and discretion are presumed to be the product of the person’s will, but the presumption may be rebutted. A person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts but the presumption may be rebutted.” App. 8a-9a. The Georgia Supreme Court has interpreted this language as creating no more than a permissive inference that comports with the constitutional standards of Ulster County Court v. Allen, supra. See Skrine v. State, 244 Ga. 520, 521, 260 S. E. 2d 900, 901 (1979). The question, however, is not what the State Supreme Court declares the meaning of the charge to be, but rather what a reasonable juror could have understood the charge as meaning. Sandstrom, 442 U. S., at 516-517 (state court “is not the final authority on the interpretation which a jury could have given the instruction”). The federal constitutional question is whether a reasonable juror could have understood the two sentences as a mandatory presumption that shifted to the defendant the burden of persuasion on the element of intent once the State had proved the predicate acts.
The challenged sentences are cast in the language of command. They instruct the jury that “acts of a person of sound mind and discretion are presumed to be the product of the person’s will,” and that a person “is presumed to intend the natural and probable consequences of his acts,” App. 8a-9a (emphasis added). These words carry precisely the message of the language condemned in Sandstrom, 442 U. S., at 515 (“ ‘The law presumes that a person intends the ordinary consequences of his voluntary acts’”). The jurors “were not told that they had a choice, or that they might infer that conclusion; they were told only that the law presumed it. It is clear that a reasonable juror could easily have viewed such an instruction as mandatory.” Ibid, (emphasis added). The portion of the jury charge challenged in this case directs the jury to presume an essential element of the offense — intent to kill — upon proof of other elements of the offense — the act of slaying another. In this way the instructions “undermine the factfinder’s responsibility at trial, based on evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt.” Ulster County Court v. Allen, supra, at 156 (emphasis added). acknowledged that the instructions there challenged could have been reasonably understood as creating an irrebuttable presumption, 442 U. S., at 517, it was not on this basis alone that the instructions were invalidated. Had the jury reasonably understood the instructions as creating a mandatory rebuttable presumption the instructions would have been no less constitutionally infirm. Id., at 520-524.
An irrebuttable or conclusive presumption reheves the State of its burden of persuasion by removing the presumed element from the case entirely if the State proves the predicate facts. A mandatory rebuttable presumption does not remove the presumed element from the case if the State proves the predicate facts, but it nonetheless relieves the State of the affirmative burden of persuasion on the presumed element by instructing the jury that it must find the presumed element unless the defendant persuades the jury not to make such a finding. A mandatory rebuttable presumption is perhaps less onerous from the defendant’s perspective, but it is no less unconstitutional. Our cases make clear that “[s]uch shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause.” Patterson v. New York, 432 U. S., at 215. In Mullaney v. Wilbur we explicitly held unconstitutional a mandatory rebuttable presumption that shifted to the defendant a burden of persuasion on the question of intent. 421 U. S., at 698-701. And in Sandstrom we similarly held that instructions that might reasonably have been understood by the jury as creating a mandatory rebuttable presumption were unconstitutional. 442 U. S., at 524.
When combined with the immediately preceding mandatory language, the instruction that the presumptions “may be rebutted” could reasonably be read as telling the jury that it was required to infer intent to kill as the natural and probable consequence of the act of firing the gun unless the defendant persuaded the jury that such an inference was unwarranted. The very statement that the presumption “may be rebutted” could have indicated to a reasonable juror that the defendant bore an affirmative burden of persuasion once the State proved the underlying act giving rise to the presumption. Standing alone, the challenged language undeniably created an unconstitutional burden-shifting presumption with respect to the element of intent.
B
The jury, of course, did not hear only the two challenged sentences. The jury charge taken as a whole might have explained the proper allocation of burdens with sufficient clarity that any ambiguity in the particular language challenged could not have been understood by a reasonable juror as shifting the burden of persuasion. See Cupp v. Naughten, 414 U. S. 141 (1973). The State argues that sufficient clarifying language exists in this case. In particular, the State relies on an earlier portion of the charge instructing the jurors that the defendant was presumed innocent and that the State was required to prove every element of the offense beyond a reasonable doubt. The State also points to the sentence immediately following the challenged portion of the charge, which reads: “[a] person will not be presumed to act with criminal intention....” App. 9a.
As we explained in Sandstrom, general instructions on the State’s burden of persuasion and the defendant’s presumption of innocence are not “rhetorically inconsistent with a conclusive or burden-shifting presumption,” because “[t]he jury could have interpreted the two sets of instructions as indicating that the presumption was a means by which proof beyond a reasonable doubt as to intent could be satisfied.” 442 U. S., at 518-519, n. 7. In light of the instructions on intent given in this case, a reasonable juror could thus have thought that, although intent must be proved beyond a reasonable doubt, proof of the firing of the gun and its ordinary consequences constituted proof of intent beyond a reasonable doubt unless the defendant persuaded the jury otherwise. Cf. Mullaney v. Wilbur, 421 U. S., at 703, n. 31. These general instructions as to the prosecution’s burden and the defendant’s presumption of innocence do not dissipate the error in the challenged portion of the instructions.
Nor does the more specific instruction following the challenged sentences — “A person will not be presumed to act with criminal intention but the trier of facts, that is, the Jury, may find criminal intention upon a consideration of the words, conduct, demeanor, motive and all other circumstances connected with the act for which the accused is prosecuted,” App. 9a — provide a sufficient corrective. It may well be that this “criminal intention” instruction was not directed to the element of intent at all, but to another element of the Georgia crime of malice murder. The statutory definition of capital murder in Georgia requires malice aforethought. Ga. Code Ann. § 16-5-1(1984) (formerly Ga. Code Ann. § 26-1101(a)(1978)). Under state law malice aforethought comprises two elements: intent to kill and the absence of provocation or justification. See Patterson v. State, 239 Ga. 409, 416-417, 238 S. E. 2d 2, 8 (1977); Lamb v. Jernigan, 683 F. 2d 1332, 1337 (CA11 1982) (interpreting Ga. Code Ann. § 16-5-1), cert. denied, 460 U. S. 1024 (1983). At another point in the charge in this case, the trial court, consistently with this understanding of Georgia law, instructed the jury that malice is “the unlawful, deliberate intention to kill a human being without justification or mitigation or excuse.” App. 10a.
The statement “criminal intention may not be presumed” may well have been intended to instruct the jurors that they were not permitted to presume the absence of provocation or justification but that they could infer this conclusion from circumstantial evidence. Whatever the court’s motivation in giving the instruction, the jury could certainly have understood it this way. A reasonable juror trying to make sense of the juxtaposition of an instruction that “a person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts,” id., at 8a-9a, and an instruction that “[a] person will not be presumed to act with criminal intention,” id., at 9a, may well have thought that the instructions related to different elements of the crime and were therefore not contradictory — that he could presume intent to kill but not the absence of justification or provocation.
Even if a reasonable juror could have understood the prohibition of presuming “criminal intention” as applying to the element of intent, that instruction did no more than contradict the instruction in the immediately preceding sentence. A reasonable juror could easily have resolved the contradiction in the instruction by choosing to abide by the mandatory presumption and ignore the prohibition of presumption. Nothing in these specific sentences or in the charge as a whole makes clear to the jury that one of these contradictory instructions carries more weight than the other. Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity. A reviewing court has no way of knowing which of the two irreconcilable instructions the jurors applied in reaching their verdict. Had the instruction “[a] person... is presumed to intend the natural and probable consequences of his acts,” App. 8a-9a, been followed by the instruction “this means that a person will not be presumed to act with criminal intention but the jury may find criminal intention upon consideration of all circumstances connected with the act for which the accused is prosecuted,” a somewhat stronger argument might be made that a reasonable juror could not have understood the challenged language as shifting the burden of persuasion to the defendant. Cf. Sandstrom, 442 U. S., at 517 (“[GJiven the lack of qualifying instructions as to the legal effect of the presumption, we cannot discount the possibility that the jury may have interpreted the instruction” in an unconstitutional manner). See also Corn v. Zant, 708 F. 2d 549, 559 (CA11 1983), cert. denied, 467 U. S. 1220 (1984). Whether or not such explanatory language might have been sufficient, however, no such language is present in this jury charge. If a juror thought the “criminal intention” instruction pertained to the element of intent, the juror was left in a quandary as to whether to follow that instruction or the immediately preceding one it contradicted.
Because a reasonable juror could have understood the challenged portions of the jury instruction in this case as creating a mandatory presumption that shifted to the defendant the burden of persuasion on the crucial element of intent, and because the charge read as a whole does not explain or cure the error, we hold that the jury charge does not comport with the requirements of the Due Process Clause.
I — I HH
Petitioner argues that even if the jury charge fails under Sandstrom this Court should overturn the Court of Appeals because the constitutional infirmity in the charge was harmless error on this record. This Court has not resolved whether an erroneous charge that shifts a burden of persuasion to the defendant on an essential element of an offense can ever be harmless. See Connecticut v. Johnson, 460 U. S. 73 (1983). We need not resolve the question in this case. The Court of Appeals conducted a careful harmless-error inquiry and concluded that the Sandstrom error at trial could not be deemed harmless. 720 F. 2d, at 1212. The court noted:
“[Franklin’s] only defense was that he did not have the requisite intent to kill. The facts did not overwhelmingly preclude that defense. The coincidence of the first shot with the slamming of the door, the second shot's failure to hit anyone, or take a path on which it would have hit anyone, and the lack of injury to anyone else all supported the lack of intent defense. A presumption that Franklin intended to kill completely eliminated his defense of 'no intent.’ Because intent was plainly at issue in this case, and was not overwhelmingly proved by the evidence... we cannot find the error to be harmless.” Ibid.
Even under the harmless-error standard proposed by the dissenting Justices in Connecticut v. Johnson, swpra, at 97, n. 5 (evidence “so dispositive of intent that a reviewing court can say beyond a reasonable doubt that the jury would have found it unnecessary to rely on the presumption”) (Powell, J., joined by Burger, C. J., and Rehnquist and O’Connor, JJ., dissenting), this analysis by the Court of Appeals is surely correct. The jury’s request for reinstruction on the elements of malice and accident, App. 13a-14a, lends further substance to the court’s conclusion that the evidence of intent was far from overwhelming in this case. We therefore affirm the Court of Appeals on the harmless-error question as well.
IV
Sandstrom v. Montana made clear that the Due Process Clause of the Fourteenth Amendment prohibits the State from making use of jury instructions that have the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of intent in a criminal prosecution. 442 U. S., at 521. Today we reaffirm the rule of Sandstrom and the wellspring due process principle from which it was drawn. The Court of Appeals faithfully and correctly applied this rule, and the court’s judgment is therefore
Affirmed.
The malice murder statute at the time in question provided:
“A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being.... Malice shall be implied where no considerable provocation appears and where all the circumstances of the killing show an abandoned and malignant heart.” Ga. Code Ann. § 26-1101(a) (1978).
A mandatory presumption may be either conclusive or rebuttable. A conclusive presumption removes the presumed element from the ease once the State has proved the predicate facts giving rise to the presumption. A rebuttable presumption does not remove the presumed element from the case but nevertheless requires the jury to find the presumed element unless the defendant persuades the jury that such a finding is unwarranted. See Sandstrom v. Montana, 442 U. S. 510, 517-518 (1979).
We are not required to decide in this case whether a mandatory presumption that shifts only a burden of production to the defendant is consistent with the Due Process Clause, and we express no opinion on that question.
Intent to kill is an element of the offense of malice murder in Georgia. See Patterson v. State, 239 Ga. 409, 416-417, 238 S. E. 2d 2, 8 (1977).
Justice Rehnquist’s suggestion in dissent that our holding with respect to the constitutionality of mandatory rebuttable presumptions “extends” prior law, post, at 332, is simply inaccurate. In Sandstrom v. Montana our holding rested on equally valid alternative rationales: “[T]he question before this Court is whether the challenged jury instruction had the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of petitioner’s state of mind. We conclude that under either of the two possible interpretations of the instruction set out above, precisely that effect would result, and that the instruction therefore represents constitutional error.” 442 U. S., at 521 (emphasis added). In any event, the principle that mandatory rebuttable presumptions violate due process had been definitively established prior to Sandstrom. In Mullaney v. Wilbur, it was a mandatory rebuttable presumption that we held unconstitutional. 421 U. S., at 698-701. As we explained in Patterson v. New York:
“Mullaney surely held that a State... may not shift the burden of proof to the defendant by presuming that ingredient upon proof of the other elements of the offense.... Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause.” 432 U. S., at 215.
An irrebuttable presumption, of course, does not shift any burden to the defendant; it eliminates an element from the case if the State proves the requisite predicate facts. Thus the Court in Patterson could only have been referring to a mandatory rebuttable presumption when it stated that “such shifting of the burden of persuasion... is impermissible.” Ibid. (emphasis added).
These portions of the instructions read:
“I charge you that before the State is entitled to a verdict of conviction of this defendant at your hands... the burden is upon the State of proving the defendant’s guilt as charged... beyond a reasonable doubt.” App. 4a.
“Now... the defendant enters upon his trial with the presumption of innocence in his favor and this presumption... remains with him throughout the trial, unless it is overcome by evidence sufficiently strong to satisfy you of his guilt... beyond a reasonable doubt.” Id., at 5a.
Because the jurors heard the divergent intent instructions before they heard the instructions about absence of justification, Justice Rehnquist’s dissent argues that no reasonable juror could have understood the criminal intent instruction as referring to the absence of justification. The dissent reproves the Court for reading the instructions “as a ‘looking-glass charge’ which, when held to a mirror, reads more clearly in the opposite direction.” Post, at 340. A reasonable juror, however, would have sought to make sense of the conflicting intent instructions not only at the initial moment of hearing them but also later in the jury room after having heard the entire charge. One would expect most of the juror’s reflection about the meaning of the instructions to occur during this subsequent deliberative stage of the process. Under these circumstances, it is certainly reasonable to expect a juror to attempt to make sense of a confusing earlier portion of the instruction by reference to a later portion of the instruction. The dissent obviously accepts this proposition because much of the language the dissent marshals to argue that the jury would not have misunderstood the intent instruction appears several paragraphs after the conflicting sentences about intent. Indeed much of this purportedly clarifying language appears after the portion of the charge concerning the element of absence of justification. See post, at 336 (Rehnquist, J., dissenting), quoting App. 10a.
It is puzzling that the dissent thinks it “defies belief” to suggest that a reasonable juror would have related the contradictory intent instructions to the later instructions about the element of malice. Post, at 339. As the portion of the charge quoted in the dissent makes clear, the later malice instructions specifically spoke of intent: “Malice... is the unlawful, deliberate intention to kill a human being without justification or mitigation or excuse, which intention must exist at the time of the killing.” App. 10a. See post, at 336 (Rehnquist, J., dissenting). A reasonable juror might well have sought to understand this language by reference to the earlier instruction referring to criminal intent.
Finally, the dissent’s representation of the language in this part of the charge as a clarifying “express statemen[t]... that there was no burden on the defendant to disprove malice,” post, at 340, is misleading. The relevant portion of the charge reads: “it is not required of the accused to prove an absence of malice, if the evidence for the State shows facts which may excuse or justify the homicide.” App. 10a. This language is most naturally read as implying that if the State’s evidence does not show mitigating facts the defendant does have the burden to prove absence of malice. Thus, if anything, this portion of the charge exacerbates the potential for an unconstitutional shifting of the burden to the defendant.
Justice Rehnquist’s dissent would hold a jury instruction invalid only when “it must at least be likely” that a reasonable juror would have understood the charge unconstitutionally to shift a burden of persuasion. Post, at 342. Apparently this “at least likely” test would not be met even when there exists a reasonable possibility that a juror would have understood the instructions unconstitutionally, so long as the instructions admitted of a “more ‘reasonable’” constitutional interpretation. Post, at 340-341. Apart from suggesting that application of the “at least likely” standard would lead to the opposite result in the present case, the dissent leaves its proposed alternative distressingly undefined. Even when faced with clearly contradictory instructions respecting allocation of the burden of persuasion on a crucial element of an offense, a reviewing court apparently would be required to intuit, based on its sense of the “tone” of the jury instructions as a whole, see ibid., whether a reasonable juror was more likely to have reached a constitutional understanding of the instructions than an unconstitutional understanding of the instructions.
This proposed alternative standard provides no sound basis for appellate review of jury instructions. Its malleability will certainly generate inconsistent appellate results and thereby compound the confusion that has plagued this area of the law. Perhaps more importantly, the suggested approach provides no incentive for trial courts to weed out potentially infirm language from jury instructions; in every case, the “presumption of innocence” boilerplate in the instructions will supply a basis from which to argue that the “tone” of the charge as a whole is not unconstitutional. For these reasons, the proposed standard promises reviewing courts, including this Court, an unending stream of cases in which ad hoe decisions will have to be made about the “tone” of jury instructions as a whole.
Most importantly, the dissent’s proposed standard is irreconcilable with bedrock due process principles. The Court today holds that contradictory instructions as to intent — one of which imparts to the jury an unconstitutional understanding of the allocation of burdens of persuasion — create a reasonable likelihood that a juror understood the instructions in an unconstitutional manner, unless other language in the charge explains the infirm language sufficiently to eliminate this possibility. If such a reasonable possibility of an unconstitutional understanding exists, “we have no way of knowing that [the defendant] was not convicted on the basis of the unconstitutional instruction.” Sandstrom, 442 U. S., at 526. For this reason, it has been settled law since Stromberg v. California, 283 U. S. 359 (1931), that when there exists a reasonable possibility that the jury relied on an unconstitutional understanding of the law in reaching a guilty verdict, that verdict must be set aside. See Leary v. United States, 395 U. S. 6, 31-32 (1969); Bachellar v. Maryland, 397 U. S. 564, 571 (1970). The dissent’s proposed alternative cannot be squared with this principle; notwithstanding a substantial doubt as to whether the jury decided that the State proved intent beyond a reasonable doubt, the dissent would uphold this conviction based on an impressionistic and intuitive judgment that it was more likely that the jury understood the charge in a constitutional manner than in an unconstitutional manner.
Rejecting this conclusion, Justice Rehnquist’s dissent “simply do[es] not believe” that a reasonable juror would have paid sufficiently close attention to the particular language of the jury instructions to have been perplexed by the contradictory intent instructions. See post, at 340. See also Sandstrom v. Montana, supra, at 528 (Rehnquist, J., concurring) (“I continue to have doubts as to whether this particular jury was so attentively attuned to the instructions of the trial court that it divined the difference recognized by lawyers between ‘infer’ and
Question: What state is associated with the petitioner?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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songer_r_fiduc
|
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 "fiduciaries". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
John C. FRANK, Plaintiff-Cross Appellant, v. Victoria BLOOM, Defendant-Appellant.
Nos. 79-1061, 79-1062.
United States Court of Appeals, Tenth Circuit.
Argued Sept. 18, 1980.
Decided Nov. 5, 1980.
Ronald K. Badger, Wichita, Kan., for defendant-appellant.
D. Lee McMaster of McMaster & Smith, Wichita, Kan., for plaintiff-cross appellant.
Before DOYLE, McKAY and LOGAN, Circuit Judges.
WILLIAM E. DOYLE, Circuit Judge.
Introductory
John C. Frank, the plaintiff-appellee and cross-appellant, originally brought an action against Victoria Murdock Bloom, the defendant-appellant, to recover his attorney’s fees for services rendered to Mrs. Bloom during a period starting June 4,1971 and continuing to April 10, 1973. Frank’s claim was for $107,000. The cause was tried before a jury which rendered a verdict in the amount of $85,000. Mrs. Bloom has appealed the final judgment based upon this award. Frank has filed a cross appeal from the trial court’s order disallowing prejudgment interest on the award.
Frank was originally hired by Mrs. Bloom to represent her interest in the Murdock litigation which is also pending in this court. Mrs. Bloom was a member of the Murdock family which owned a newspaper in Wichita, Kansas. The paper had been in the Murdock family since the newspaper was originally founded by Mrs. Bloom’s grandfather, Colonel Marshall Murdock, in 1872. When he died in 1914 the newspaper was inherited by his three children, Marcellus, Victor and Pearl. Each received one-third. Victor’s one-third passed to his daughter, Katherine Henderson, and his grandson, Victor Delano. Pearl’s one-third share passed to her grandson, Harry B. Brown. Victoria’s father, Marcellus Murdock, following his death on March 10,1970, left his share in a trust which he had created during his lifetime. He placed one-half of his interest in the paper, or one-sixth of the stock, in that trust. The trust created five shares, one for his widow and one for each of his four children. In 1966 Marcellus Murdock created a testamentary trust. In this he provided five shares, one for his widow and one for each of his children. The remaining one-sixth share of stock of the newspaper was willed to the testamentary trust.
There were six surviving heirs of Marcellus - his widow Paula, his three children, Marshall Murdock, Janet Jennings and Victoria Bloom, and two grandchildren of Jane, his deceased daughter, Vici McComb and David Colwell.
The Will Litigation
Frank was employed by Victoria Bloom on June 4,1971 in connection with litigation concerning the interest which the widow of Marcellus, Paula, was entitled to receive from the estate. This dispute was litigated in state court in Wichita. It centered on the interpretation and validity of an Anti-Nuptial Agreement executed in 1940, a Will executed in 1966 and a Codicil to the Will executed in 1967. The widow, Paula, took the position that she was entitled to one-half of the estate. The son, Marshall, here contended that Paula was entitled to one-fifth of the estate in accordance with the Anti-Nuptial Agreement. Victoria Bloom disputed the claim of Paula that she was entitled to one-half and contended that she should receive nothing at all.
A provision in the Will of Marcellus stated that Paula should receive nothing if she and Marcellus were not living as husband and wife at the time of his death. The facts were that Marcellus, after having lived with Paula for 24 years, moved out of the family residence. She, however, continued to live there until Marcellus’ death. The trial court determined that Paula was entitled to a one-fifth share in accordance with the Anti-Nuptial Agreement.
This decision was affirmed by the Supreme Court of Kansas which held that the clause in question encouraged separation and was on that account contrary to public policy and unenforceable.
The trial judge in the will or widow’s case awarded plaintiff-appellee Frank the sum of $48,000 for his services in the estate proceedings. Later the state supreme court ruled this sum to be not payable out of the estate. It did not comment on the reasonableness of the award.
Voting the Stock
There was also litigation concerning the voting rights of the trustee. The beneficiaries of the trust sought to have the bank vote the stock in accordance with their wishes. The bank refused, however, to do so. Mrs. Bloom’s position was the same as that of the bank: that the trustees should vote according to their own discretion, and not necessarily in accordance with the wishes of the beneficiaries.
Sale of the Newspaper
A third trial arose in connection with the sale of the newspaper to Ridder Publications, Inc. This action was brought by Victor Delano seeking an injunction against the sale of the newspaper and requesting damages from all other shareholders. The court did not enjoin the sale of the newspaper. It was during this injunction trial that Frank withdrew as the attorney for Mrs. Bloom. He testified that Mrs. Bloom insisted that he call her as a witness and ask her questions which she had previously prepared but had refused to allow Frank to review. He advised her that she was not needed as a witness since the hearing was limited. After denial of the injunction the newspaper was sold to Ridder Publications for $42,000,000.
At the outset of the Bloom-Frank relationship the understanding was that Frank was to be paid fees based upon the hourly rate of $50.00 per hour. Frank’s contention is that this contract was modified early in the relationship. Mrs. Bloom testified that she was approached by Frank with the suggestion that he seek his fees from the estate with the understanding that if the estate was not held liable he would seek to be paid by Bloom. Bloom maintained that Frank informed her that all of the attorneys were seeking to be paid by the estate and asked her if she wished for him to do the same. Frank’s version was similar, with the exception that he claimed that it was Bloom who approached him with the idea of his seeking his fees from the estate. Frank said that he did not give Bloom an answer until he had thought about and researched the issue. He said that at some later date he advised her that°he would seek payment from the estate and have the court allow the fee; that he would no longer bill her on a regular basis. Frank - also testified that he and Bloom agreed that if the court refused to grant- the fees from the estate he would continue to look to Bloom for payment and that his fees would be what he considered to be reasonable and could be more or less than the $50.00 per hour.
The testimony on behalf of Mrs. Bloom as to the fee arrangement generally was that her contract with Frank was for $50.00 per hour, and that this contract never changed. She maintained that nothing was said about changing the $50.00 hourly rate to be charged nor was there anything said about the court setting the fee. She understood that Frank would try to get his fee from the estate at the $50.00 per hour rate. She understood that if the estate did not pay that she would have to pay as originally agreed, i. e. $50.00 per hour.
In his counterclaim Frank alleged that the reason for the change in the fee arrangement was Mrs. Bloom’s excessive demands on his time. In his answer he claimed that in an itemized statement he told Mrs. Bloom that the excessive demands on his employment by her were placing a severe burden on his law practice and that he would prefer to withdraw. The answer further stated that Mrs. Bloom encouraged him to continue to represent her and indicated her willingness to forego the hourly fee contract and replace it with a reasonable compensation arrangement. Frank also testified at the trial that he told Mrs. Bloom that he did not know whether the fee based on reasonable rates would be higher or lower than under the original contract, but in his deposition he testified that his feeling was that the fee would probably be lower.
Frank testified at the estate hearing on fees that his office had spent 450 hours on the case and that his fee should be from $38,000 to $48,000. According to Bloom’s brief, this would have amounted to $85.00 to $106.00 per hour based on 450 hours. The worksheet showed that approximately 280 hours had been spent on the case.
The additional amount demanded by Frank derived from representing Mrs. Bloom in the two state court cases, one having to do with the widow’s case and the other the voting case. Both of these pertained to control of the newspaper.
Somewhat later, on March 2, 1973, Mrs. Bloom said that she learned the newspaper had been sold and that this sale had been arranged by Mr. Kitch and Mr. Brown. Mrs. Bloom finally did sell her stock, notwithstanding that Kitch was going to receive a finder’s fee from the buyer of the paper based upon the number of shares that he was able to sell. Mr. Delano filed a lawsuit seeking to enjoin the sale of the newspaper and Frank represented Mrs. Bloom in that case and filed a cross claim against Kitch to recover Mrs. Bloom’s portion of the finder’s fee.
After the Supreme Court of Kansas ruled that the estate was not responsible for the fee here in question, Frank billed Mrs. Bloom for the sum of $107,500 for the representation in the several cases. However that was not itemized or broken down according to the various cases in which he had participated. This present suit was filed September 26, 1974. Originally Frank employed the Kitch firm to bring the fee action against Mrs. Bloom. Mrs. Bloom took exception to Frank hiring the Kitch law firm to bring the action against her because she had been adversary to Kitch in the other litigation. She sought to have the Kitch firm disqualified from trying the present case, i. e. for the attorney’s fees. Later the Kitch firm voluntarily withdrew.
The Contentions of Mrs. Bloom
There are a great many assignments of error and we list all of them. She asserts that the trial court
1. Erroneously failed to instruct the jury that a contract for additional compensation entered into under threat of withdrawal following partial performance of the fee contract was invalid.
2. Failed to instruct the jury as to the legal effect of the $48,000 award to Frank given by the Kansas judge in connection with the litigation in the estate of Marcellus Murdock. (Under the Supreme Court of Kansas ruling the estate was not liable for this fee.)
3. Failed to instruct that a fee contract which was changed after the attorney-client relationship went into effect was void per se or voidable at the election of the client.
4. Erred in not granting a new trial or in not granting a remittitur as an alternative to a new trial.
5. Erred in admitting the desk calendars of Frank into evidence together with the estimated number of hours shown on those calendars.
6. Erroneously received evidence showing the amount of money saved Mrs. Bloom by virtue of the reduction of the widow’s share of the estate, in that this analysis was based on the value of the stock sold in 1973 instead of the estate inventory value in 1970.
7. Erred in failing to instruct the jury regarding a determination of a reasonable fee in the event that the jury found that the original hourly rate contract had been charged.
8. Erred in instructing the jury that in order to find a modified contract invalid it must determine that the client was under the domination of the attorney.
9. Committed grievous error in withdrawing from the jury the issue of disentitlement to attorneys’ fees as a result of conduct of the attorney which is against the best interests of the client.
I. Did The Trial Court Err in Failing to Instruct the Jury That a Contract Between An Attorney and Client Which is Modified Under Threat of Withdrawal by the Attorney is Invalid?
During the pleading stage in the case, an answer was filed on behalf of Frank, responding to Mrs. Bloom’s counterclaim. In the answer Frank alleged that Mr. Frank and Mrs. Bloom had modified their initial contract; that Frank had notified Mrs. Bloom that he wished to withdraw from her case due to the excessive demands of being employed by her. Frank also alleged that Mrs. Bloom objected to Frank’s withdrawal and offered to replace the $50 per hour fee with a reasonable compensation standard if he would continue to represent her. That identical statement appeared in a letter written by one of Mr. Frank’s attorneys to the trial judge in this case, United States District Judge Wesley Brown, explaining the reason for the change in the fee arrangement. Mrs. Bloom’s lawyer brought all of this out in an effort to impeach the testimony of Frank during the trial.
The factual matter contained in the pleadings is admissible as an admission by a party made by his agent acting within the scope of his employment. Such evidence is admissible for substantive purposes, and need not be received solely for impeachment purposes. See Weinstein on Evidence, 1978, 801(d) [01], page 801-10, and 801(d)(2)(D)[01], page 801-137. At the trial Frank repudiated the statements made by his lawyer, saying that they were incorrect. However, he is nevertheless bound by his lawyer’s admissions on his behalf.
It is significant that Mrs. Bloom did not claim at the trial to have been influenced to agree to a change in basis for computing fees by any threat made by Mr. Frank. These admissions were used solely to try to impeach Frank. One thing is clear, and that is that the evidence on this question of a change in the fee standard was in sharp dispute at the trial. It is also plain that although Mrs. Bloom now contends that the contract was modified under threat of Frank’s withdrawal, it does not appear that she raised that at trial. In fact, she denied that the parties ever discussed modifying the contract.
Nevertheless, the trial Judge gave an instruction that “any admissions contained in the pleadings.... must be accepted by you as true and are not required to be supported by additional evidence.” The jury could have concluded that based upon the admissions in Frank’s pleadings, he had, indeed, threatened to withdraw and the instructions permitted the jury to question whether Mrs. Bloom relied on such withdrawal.
The jury was also instructed that a presumption of undue influence exists when contracts are made between parties to a confidential relationship. Further, the Court told the jury that Mr. Frank, as a domineering party, had the burden of showing that the contract was made in good faith without unfairness or overreaching and for a valuable consideration.
A further instruction given by the trial judge charged the jury that a modifying contract would be invalid if a confidential relationship existed between the parties, if, in addition, Mrs. Bloom was, in fact, under the domination of Frank, and the modification lacked consideration, was unfair, unreasonable, the result of overreaching, coercion or inequitable conduct, and was not freely and voluntarily entered into and with full understanding of its terms and consequences.
There is case law holding modified agreements for attorney fees invalid in circumstances in which the court found that the clients had had no freedom of choice and had agreed to the change in reliance on the threat of the lawyer to withdraw. Egan v. Burnight, 34 S.D. 473, 149 N.W. 176 (1914), and Griffin v. Rainer, 212 Va. 627, 186 S.E.2d 10 (1972). In the cited cases the courts found that the client had relied on the attorney’s threat of withdrawal. In Griffin, for example, the court said that the client lacked freedom of choice to resist the pressure which had been applied by the attorney. If the jury had determined that Mrs. Bloom was similarly pressured, notwithstanding that she had not claimed that she had been so influenced, the instructions to the jury which were here given and which are described above would have adequately covered the subject whereby the jury could have found the contract to have been invalid.
The instructions which were given to the jury regarding attorney pressure in relation to the voiding of a contract were thus adequate. The failure of the jury to rule that Mrs. Bloom was pressured was due to lack of evidence rather than to lack of a specific instruction pinpointing the appellant’s theory of the case. We are unable, therefore, to find that the court committed error in its treatment of the foregoing.
II. Did the Trial Court Err in Not Instructing the Jury as to the Legal Effect of the Witness Judge Stephan’s Testimony On This Dispute?
Judge Stephan was the judge in Wichita who presided in the widow’s case. As noted previously, concern had to do with whether Marcellus Murdock’s widow was entitled to one-fifth or one-half of her husband’s estate. Judge Stephan awarded Frank $48,000 for his services in that case. The Kansas Supreme Court reversed the part of the decision which charged this fee to the estate, and so the parties continue to dispute whether the Frank-Bloom agreement for the payment of $50 per hour is in effect, or whether it is a question of the reasonable value of Frank’s services. Judge Stephan, the man who made the determination that the services were worth $48,000, testified at trial that the $48,000 was reasonable for the services rendered by Frank. Mrs. Bloom maintains here that the jury should have been informed that the court’s award had no binding relationship to any contract between the parties; that it was not binding between her and Frank; that Mrs. Bloom was not obligated nor entitled to call the court’s (meaning Judge Stephan) attention to the $50 per hour contract that she believed to be in effect.
The instruction of the trial court here stated:
If you find (Mrs. Bloom) made an enforceable agreement to pay (Mr. Frank) the reasonable value of his services in the widow’s case, then you may consider from the evidence the amount (Mr. Frank) is reasonably entitled to recover. On the other hand, if you find (Mrs. Bloom) made no enforceable agreement to assume and pay such fees, if not payable out of the estate, then the basis for (Mr. Frank’s) recovery in the widow’s case would be the terms of the original contract of employment as you find them.
The jury was further instructed that even though Judge Stephan was called as an expert witness to value Frank’s services the jury was not bound to accept Judge Stephan’s testimony; that his testimony was to be considered by the jury in the same manner as any other evidence; and that the testimony should be given the weight and credit the jury deemed appropriate. The jury was also told that it was up to it to determine whether Mrs. Bloom had contracted to pay Frank the reasonable value of his services or whether the terms of the original contract governed. Moreover, the jury was told that Judge Stephan’s award did not bind the jury.
In view of the extent of the instructions given by the court, we are unable to see a need for an additional one saying that Judge Stephan’s award was not binding on the jury. The jury was told in plain terms that the $48,000 was not binding on it and further instruction could only cause confusion. Appellant’s claim of error must be denied.
III. Is Mrs. Bloom’s Argument That the Trial Court Erred in Refusing to Instruct the Jury That a Fee Contract Change After The Creation of the Attorney-Client Relationship is Void Per Se or Voidable at The Election of the Client a Valid One?
We hold that the trial court did not err in not so instructing. Mrs. Bloom’s argument springs from her claim that such an instruction is in harmony with the law of Kansas which upholds strict rules of conduct for fiduciaries. No showing has been made, however, that the Kansas Court has embraced this specific principle. The general rule is that a contract made during the existence of an attorney-client relationship is valid and enforceable if it is fair and equitable. 13 ALR 3d 710 (1967). Mrs. Bloom’s argument is not reasonable. It seems highly unlikely that the Kansas Supreme Court would hold that a client has the power to void any fee contract which comes into existence after the attorney-client relationship has arisen. This argument is not shown to have support in Kansas law, and, therefore, Appellant’s claim of error on this is denied.
IV. Was it Error to Instruct the Jury that in Order to Find a Modified Contract Invalid It Must Determine that the Client was under the Domination of the Attorney?
The claim of error is based on appellant’s belief that domination is presumed as a consequence of the attorney-client relationship, and thus a modified contract between an attorney and his client is void per se or void at the client’s election. However, as stated above, there is no indication that Kansas follows this minority per se doctrine. The Kansas pattern jury instruction states that when deciding whether the party is to be relieved of his responsibilities because of undue influence the jury may be instructed to consider whether the moving party to a confidential relationship is under the domination of the other party. See Kansas Pattern Instructions, Section 18.-02G. The instruction given by the trial court was in accord with the present Kansas law. Thus, this contention lacks merit.
V. Did the Trial Court Abuse Its Discretion in Denying the Motion for New Trial or a Remittitur as an Alternative to a New Trial Based on the Fact that the Amount of the Verdict, $85,000, is Excessive and Contrary to the Weight of the Evidence?
A. Was There Insufficient Evidence for the Jury to Find That the Parties had Modified the Original Contract?
Mrs. Bloom maintains that the jury necessarily found that the parties had modified the original contract. As we have previously noted (many times) there were two opposing versions: Mrs. Bloom maintained that the contract continued to be based upon the $50 per hour rate (or nothing). Frank contended that soon after his employment the contract was modified to require that Mrs. Bloom pay him a reasonable fee. Frank said that the other members of his law firm were aware of the alleged modification. This, however, was never corroborated. The jury was left to determine who was telling the truth as between Frank and Mrs. Bloom. The parties agreed that there had been some modification in the arrangement in that Mrs. Bloom ceased to pay Frank on a regular basis, and also the fees attributable to the widow’s claim were agreed to be obtained from the estate if possible. It is difficult to say that the jury reached a result which was clearly erroneous inasmuch as they were called upon to evaluate and determine the credibility of the parties as witnesses. The evidence was sufficient to show that reasonable minds could differ and, therefore, the trial court was within its authority in denying a new trial. See Fireman’s Fund Ins. Co. v. Aalco Wrecking Co., 466 F.2d 179 (8th Cir. 1972); cert. denied 410 U.S. 930, 93 S.Ct. 1371, 35 L.Ed.2d 592 (1973).
B. Did the Evidence Justify, Under the Standard of a Reasonable Fee, the Allowance of $85,000?
The instruction required the jury, if it determined that the contract had been modified so as to pay Mr. Frank the reasonable value of his services, to take into account the following factors in determining that value:
1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude her employment by the attorney.
3) The fee customarily charged in the locality for similar legal services.
4) The amount of money... involved in the controversy and the result secured for the client.
5) The nature and length of the professional relationship with the client.
6) The experience, reputation and ability of the attorney performing the service. [Tr.Vol. V, p. 102]
Mrs. Bloom argues that there was insufficient evidence as to the value of the services rendered whereby the jury could determine reasonable value and that there was insufficient evidence as to the total hours spent by Frank on her behalf. However, several witnesses did testify giving opinions as to the value of such services and the jury was at liberty to give to that testimony the weight that the jury deemed appropriate. As to the testimony concerning the number of hours: Frank’s desk calendars were introduced; these had been kept by Frank’s secretary; a ledger and time sheet prepared by secretaries were introduced. These were prepared for the litigation in question. Much of this evidence was somewhat inconsistent and contradictory, and therefore, had limited probative value. All of these discrepancies and contradictions were called to the attention of the jury, however, and undoubtedly were considered by it. The Judge instructed the jury that the issue was to be
determined by you on the basis of the evidence presented. In making this determination, you may consider the failure to keep proper records and the passage of time between the rendition of services and arriving at an estimate as effecting the reliability of such evidence.
The law is very clear that reviewing courts are not at liberty to set aside jury verdicts merely because the reviewing judges feel that opposite results seem more reasonable. See Tennant v. Peoria and P. U. Ry. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 412, 88 L.Ed. 520 (1944). The Tennant case pertained to a motion for a judgment notwithstanding the verdict. However, the rule has been applied to motions for new trial. See Firestone, supra; Lind v. Schenley Industries, Inc., 278 F.2d 79 (3rd Cir. 1960), cert. denied 364 U.S. 835, 81 S.Ct. 58, 5 L.Ed.2d 60; Duncan v. Duncan, 377 F.2d 49 (6th Cir. 1967); cert. denied 389 U.S. 913, 88 S.Ct. 239, 19 L.Ed.2d 260. It is to be noted also that Frank had obtained an award from the Judge who tried the widow’s case in the amount of $48,000 for the effort in that case. Even though the trial court instructed the jury that this was not binding, it may have had influence because this was a limited part of the total work performed.
The trial judge was not at liberty to set aside the verdict, unless it was clearly against the weight of the evidence. See Moore’s Federal Practice, 59(5) 1979. Even if the judge would have reached a decision different from the jury he would not be justified in interfering with the jury’s conclusion because the credibility of,, the witnesses is for the trier of the facts; in this case, the jury. In order for the court to set aside the jury verdict it must clearly appear that the jury reached a seriously erroneous result. Moore, Section 59.08(5), pages 59-159. There are no unusual or special circumstances here to warrant a finding that the trial court’s action, in failing to set aside the verdict, constituted an abuse of discretion.
Considering the broad discretion that the trial court has in ruling on motions for new trial, we must conclude that no grounds existed in this case to warrant the overturn of the jury’s verdict and the granting of a new trial. Accordingly, the appellant’s contention that error was committed in this respect is denied.
VI. Was it Error for the Trial Court to Receive Into Evidence Frank’s Desk Calendars?
At the very outset the trial court, in its instructions to the jury, mentioned the lack of proper records and the time lapse between the rendition of the services by Frank and the attempt to estimate the number of hours spent by Frank. In addition, the testimony at trial pointed out the lapse of time and also the insufficiency of the records. Thereby the jury was in a position to determine the weight to be given to the information in the calendars and to reach a conclusion concerning the number of hours devoted to the task. Federal Rule of Evidence 401 provides that evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more proper or less proper than it would be without the evidence. Rule 401 defines relevance in broad terms. In the light of these guides it cannot be said that the desk calendars lacked “any tendency” toward probativeness as to the number of hours spent by Frank on behalf of Mrs. Bloom.
Relevant evidence is to be excluded only if its probative value is outweighed by danger of unfair prejudice, confusion of the issues, misleading the jury or by questions of undue delay, waste of time or needless presentation of cumulative evidence. Federal Rule of Evidence 403. It was brought to the jury’s attention that there was a lack of proper records and a lapse of time before such records were compiled. It is not apparent that the probative value of the evidence was circumstantially outweighed by other dangers. It was open to the jury to attribute to the evidence any amount of weight that it deemed proper and this could have been resolved in favor of Frank or against him.
In addition, it is argued by Mrs. Bloom that Frank took the position during the pretrial procedure that the calendars would not be used in and of themselves as evidence showing hours, but would be limited to refreshing his memory on the work that he was doing. Therefore, Mrs. Bloom contends that Frank cannot rely on this evidence at trial. However, Frank never asserted that the calendars were not reliable; he merely asserted that he was not planning to rely on them. Frank was ordered to produce the calendars during the discovery stage and he did so over his own objections on the grounds of confidentiality. He blocked out the confidential parts and gave copies to Mrs. Bloom. Inasmuch as these were discovered by Mrs. Bloom and were produced, there does not appear to be any reason for not allowing them to be used for whatever value they may have had. Accordingly, the assignment of error in connection with the desk calendars should be and is hereby denied.
VII. Did the Trial Court Err in Ruling That the Amount of Money Which Was Saved Mrs. Bloom in the Widow’s Case Based on the Sale Price of the Newspaper Three Years After the Trial of the Case Was Relevant and Could Be Received in Evidence?
The position of Mrs. Bloom in the widow’s case was that the widow should receive nothing. The widow, Paula Murdock, claimed one-half of the estate. She was restricted to one-fifth. Mr. Frank’s argument is that due to his efforts, Mrs. Bloom’s share of the estate was enhanced as a result of the reduction of the widow’s share from one-half to one-fifth.
To demonstrate that Mrs. Bloom profited from the result in the widow’s case, Frank presented evidence as to the value of the estate before the case and thereafter. The figures were used to show the value of the newspaper three years afterward when it was sold. Mrs. Bloom’s position was that only the value of the paper at the time of trial ought to have been shown.
In the circumstances presented it was not prejudicial to reveal the sale price. At the time of the widow’s trial it was easy to predict that the paper would be sold. It is true that it was sold at its inflated value, but this was a product of the times. Certainly the jury could cope with this factor. The numbers were not important. The relevant item was the fact that Frank had saved Mrs. Bloom a substantial sum of money regardless of the sale price. Mrs. Bloom was seeking to show that Frank was of no help or of little help in the widow’s case. Frank was entitled to show that his effort did enhance ultimate recovery. Obviously Frank did not bring about the inflated sale price, but he might have anticipated it. True, the. amount of money that Mrs. Bloom ultimately received is of problematical relevance, but it ought not to require overturning of the verdict. See Moore’s Federal Practice Sec. 10311.11, P. 1-21-22.
VIII. Was it Error for the Trial Court to Withdraw from the Jury the Issue of Alleged Forfeiture of Attorney’s Fees to Frank Based on His Failure to Act in Accordance with Mrs. Bloom’s Request or Because of His Alleged Disloyalty?
This problem derives from the action of the trial court (Judge Templar) in withdrawing from jury consideration the defense of Mrs. Bloom to the payment of the attorney’s fees based upon a number of instances in which he allegedly acted contrary to Mrs. Bloom’s interest. The trial court summarized the issue as follows:
The defendant Bloom as a defense to plaintiff Frank’s claims contends that plaintiff Frank has lost his right to fees in the widow’s case and the voting trust case under the $50 per hour contract because he failed to take the deposition of Paul Kitch; because he failed to file the cross-claim against Kitch in the DelanoKitch case; that he looked to Paul Kitch for advice as to whether she should sell her stock in the Eagle-Beacon newspaper when he knew that a decision not to sell would reduce Kitch’s finder’s fee and also knew there was a strong possibility that she could stop the sale altogether, resulting in no finder’s fee; and that he employed the firm of Fleeson, Gooing, Coulson and Kitch to file his suit against her and represent him, which led to the turning over to that firm of attorneys his entire file in the Delano-Kitch ease while it was on appeal.
Now, you’re instructed that the Court is withdrawing these issues from your consideration and you will not consider these matters in your deliberations.
Mrs. Bloom’s argument that Frank forfeits all compensation because of the six instances in which he is alleged to have acted in a manner detrimental to the interest of Mrs. Bloom is in truth a claim of malpractice against Mr. Frank.
It is important to point out that the only evidence in the record that Frank acted in a way that could be described in the court’s instruction is in the descriptions of what occurred. There is no evidence evaluating his course of conduct so as to establish that he conducted himself contrary to law or in an unethical way. The appellant treats this alleged misconduct as if it was per se illegal. It might have been helpful if there had been an expert witness who condemned Frank’s activities as being contrary to her interest
Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
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songer_applfrom
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A
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
UNITED STATES of America, Plaintiff-Appellee, v. Laura TROMBLEY, Defendant-Appellant.
No. 83-1492.
United States Court of Appeals, Sixth Circuit.
Argued March 15, 1984.
Decided April 25, 1984.
See also, D.C., 563 F.Supp. 564.
Gershwin A. Drain, Kenneth R. Sasse, argued, Detroit, Mich., for defendant-appellant.
Leonard R. Gilman, U.S. Atty., Michael J. Lavoie, Art Noel, argued, Detroit, Mich., for plaintiff-appellee.
Before KEITH and KRUPANSKY, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
KEITH, Circuit Judge.
The appellant, Laura Trombley, was indicted in a multiple count indictment in which she and four other individuals were charged with violations of 18 U.S.C. § 2, § 2312 and § 2313. A jury trial was held, and appellant was convicted on Count Three of transporting a stolen motor vehicle in interstate commerce in violation of 18 U.S.C. §§ 2312 and 2. She was convicted on Count Four of receiving a stolen motor vehicle which was part of and constituted interstate commerce in violation of 18 U.S.C. § 2313. Appellant was sentenced to three years probation with a fine of $1,000 to be paid within two years. This appeal followed. For the reasons set forth below, we affirm.
In March of 1982, the FBI conducted an undercover project in Detroit known as Project Derings. The goal of the project was to have undercover agents introduced to individuals who were involved in large scale commercial auto theft rings. To facilitate the introduction, undercover FBI agents represented themselves as corrupt employees of the Michigan Secretary of State’s office who were selling fraudulent titles, registrations, and license plates to automobile thieves for $1,000.
Joseph Finnegan, an undercover agent, adopted the identity of Joe Booker and posed as a corrupt official of the Secretary’s Office. On June 16, 1982, Agent Finnegan prepared a Michigan vehicle title, registration, and a license plate for Laura Irene Trombley, who resided at 23072 North Brookside Drive, Dearborn Heights, Michigan. Finnegan delivered these documents to Gwen Clemens, who conveyed them to the appellant through Eric Fair (Eric Fair was also indicted in this case).
Approximately six months later, on December 9, 1982, Agent Finnegan recorded a telephone conversation with Ms. Trombley. The overall thrust of the conversation was her complaint that the paperwork for the 1981 Seville, which she had obtained from Eric Fair, did not adequately legitimize the stolen automobile. During this conversation, she made several admissions. The appellant admitted that she had acquired a 1981 Cadillac Seville for $3,700, instead of a Lincoln Continental, in approximately March of 1982. She also admitted that she took out a loan for $3,000 from General Finance, using the car as collateral. The loan was used to take a trip to Texas to visit her son who was in the hospital. In driving to Texas, appellant indicated that she had travelled across sixteen state lines, and in doing so, was concerned about the result if she had been stopped by police. She further admitted that she knew the car was “hot”. In response to the undercover agent’s question as to why she decided to acquire the car knowing it was “hot”, the appellant stated: “Well, because my son owed me some money and uh, my son knew Eric and Sam.” The appellant acknowledged that she knew that the vehicle identification number had been altered on the automobile. Finally, the appellant admitted that she had driven to Texas accompanied by her mother. Throughout the conversation, the defendant persisted in efforts to acquire additional paperwork for the automobile which she hoped would make it “legal”.
Eric Fair testified that he met the appellant through one of her sons and attempted to obtain a Lincoln Continental as requested by the appellant for $2,500. He was unable to obtain a Lincoln, but did acquire a 1981 Seville. He took the Seville to the house of one of appellant’s sons. Trombley inspected the car, which had a broken window and a damaged ignition. Ms. Trombley gave Fair money to repair these items, and the car was taken to her garage.
Fair also testified that the appellant contacted him some time later and told him the plates had expired and she could not get them renewed. Trombley told Fair that she had to get the plates renewed so that she could visit her son in Texas. Fair gave the appellant’s phone number to the undercover agent (Agent Finnegan) so he could contact her about the problem with the paperwork.
The evidence showed that the 1981 Cadillac had been stolen from Lorraine Harris in late February 1982. According to Ms. Harris the automobile had less than three thousand miles when stolen and was valued at $14,500. In December 1982 there were approximately eight thousand miles on the car’s odometer.
The appellant admitted that she travelled to Texas in the summer of 1982 but that she went in a 1968 Cadillac instead of the 1981 Cadillac Seville. She stated that she took the older car because it had more space for luggage and a roomier backseat for her mother. When confronted with her tape-recorded admission to undercover agent Finnegan that she had taken the Seville to Texas, she said that it was a false statement. The appellant said she told the undercover agent she had taken the car across state lines in an effort to try and scare him into getting proper paperwork.
The sole question presented for review is whether appellant’s pre-arrest, out-of-court admission to an undercover government agent that she transported a stolen motor vehicle between Michigan and Texas was sufficiently corroborated to establish the jurisdictional element of interstate transportation.
The appellant contends that the government relied entirely on the tape recorded admissions made during the conversation with the undercover FBI agent to prove that the stolen 1981 Cadillac Seville travelled in interstate commerce. The appellant claims that because the prosecution failed to provide any independent corroboration of the admission, the conviction should be reversed. The government submits that the appellant’s admission that the stolen 1981 Cadillac Seville was transported to Texas was corroborated elsewhere in the government’s case. Furthermore, even if corroboration was lacking, the defendant’s entire statement to the undercover agent was amply corroborated as a whole, and sufficient to prove interstate transportation.
The Supreme Court has recognized that the government must introduce independent evidence to establish the trustworthiness of a defendant’s statement. Opper v. United States, 348 U.S. 84, 93, 75 S.Ct. 158, 164, 99 L.Ed. 101 (1954). The Supreme Court further held in Smith v. United States, 348 U.S. 147, 155, 75 S.Ct. 194, 198, 99 L.Ed. 192 (1954) that the corroboration rule was applicable not only to confessions but also to mere admissions where the admission is made after the fact to an official charged with investigating the possibility of wrongdoing, and the statement embraces an element of the case.
It is generally recognized that corroboration in federal court does not entail independent proof of each element of the offense charged. The purpose of corroboration is to ensure the reliability of the confession or admission of the accused. United States v. Bukowski, 435 F.2d 1094, 1106 (7th Cir.1970), cert. denied, 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809 (1971). Thus, the requirement is only that there be extrinsic evidence corroborating the admission as a whole which, taken together with the admission, is sufficient to support a finding of guilt beyond a reasonable doubt. United States v. Gravitt, 484 F.2d 375, 381 (5th Cir.), cert. denied, 414 U.S. 1135, 94 S.Ct. 879, 38 L.Ed.2d 761 (1973). If there is extrinsic evidence tending to corroborate the confession, the confession as a whole is admissible, and some elements of the offense may be proven entirely on the basis of a corroborated confession. United States v. White, 493 F.2d 3 (5th Cir.), cert. denied, 419 U.S. 901, 95 S.Ct. 186, 42 L.Ed.2d 147 (1974).
In United States v. Wilson, 436 F.2d 122 (3d Cir.), cert. denied, 402 U.S. 912, 91 S.Ct. 1393, 28 L.Ed.2d 654 (1971), the court examined a corroboration issue which is virtually on all fours with the present case. In Wilson, the defendant made an admission to a Philadelphia detective that he drove a Dodge Charger from Philadelphia to California. In other parts of the defendant’s admission he stated where he had purchased the car and that he was stopped by a policeman in California. These other parts of defendant’s admission were corroborated. The court stated that since two parts of the defendant’s admission were corroborated by other evidence, this established the trustworthiness of the entire admission and the prosecutor could prove the element of interstate transportation solely by the defendant’s admission.
In the present case, the government could prove the interstate transportation element entirely by the appellant’s statements to Agent Finnegan, provided there were other parts of the defendant’s statement which were corroborated.
The appellant talked with the undercover agent because she had been told by Eric Fair that he was the one who provided the paperwork in the past for the stolen car. Since appellant was unable to obtain renewed license plates for the car, she contacted the undercover agent to obtain the necessary paperwork from him. During this conversation appellant made numerous admissions relative to her acquisition of the stolen car, her use of the stolen car, her knowledge that the car was stolen, and her transportation of the car from Michigan to Texas and back. Specifically, she admitted the following: that she received the car from Eric Fair; that she had two different sets of papers for the car; that the first set was entirely wrong; that she paid $3,700 in full for the car; that she had initially ordered a Mark VI for $2,500, but had to pay an additional $1,200 for the Cadillac Seville because it was “too hard to take”; that she took the car across sixteen state lines to visit her injured son in Texas; that she knew the car was stolen; that she bought the car knowing it was “hot” because her son owed her some money and this would “cross the bill off”; that her mother went to Texas with her; and that she knew the vehicle identification number was altered by changing a five to an eight. In the second conversation, held minutes after the first one, the appellant continued to complain about the adequacy of the paperwork for the car and persisted in her attempts to obtain paperwork which would “legitimize” the stolen car. At one point appellant again admitted that she knew the car was stolen, and said “they tell me this is all legal when they give you this paperwork”.
The appellant’s preceding statements were corroborated by other evidence presented in this case. Eric Fair testified that he delivered the stolen car to Trombley’s house, that the vehicle identification number had been changed, that he delivered the paperwork for the stolen car to the appellant, and that she told him she was going to see her sick son in Texas. The appellant’s admission that the vehicle identification number was altered from five to eight was also corroborated. Special Agent Charles Poplinger of the FBI testified as an expert witness that the defendant’s title contained a vehicle identification number which had been altered by changing a five to an eight. Additionally, all defense witnesses testified that Trombley travelled to Texas in the summer of 1982 to visit her sick son.
The appellant’s admission that she drove across state lines is also corroborated. Lorraine Harris, the owner of the car, testified that the car was stolen in February of 1982 and that there were less than three thousand miles on the car at the time of the theft. The appellant testified that there were approximately eight thousand miles on the car when she talked to the undercover agent in December of 1982. The only reasonable explanation for the additional five thousand miles was the appellant’s trip to Texas. The appellant testified that she did not drive the car prior to obtaining insurance on July 14, 1982. Approximately one week later she left for Texas. On October 22, 1982, appellant’s husband attempted to get new plates for the car, but was unable to do so. After this date the car was kept in the appellant’s garage. Therefore, the only reasonable explanation for the additional mileage was the trip to Texas. These facts corroborate the appellant’s admission that she drove to Texas.
Based on these facts, corroboration exists for both the whole and the part of the appellant’s admission, establishing the jurisdictional element of interstate transportation.
Accordingly, we affirm the judgment of the Honorable Thomas P. Thornton of the United States District Court for the Eastern District of Michigan.
. 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.
Title 18 U.S.C. § 2312 provides:
Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.
Title 18 U.S.C. § 2313 provides:
Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_applfrom
|
J
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
THE WESTERN WAVE. NORTH AMERICAN FRUIT & S. S. CORPORATION et al. v. BOARD OF COMMISSIONERS OF PORT OF NEW ORLEANS et al.
No. 7594.
Circuit Court of Appeals, Fifth Circuit.
May 20, 1935.
Harry F. Stiles, Jr., of New Orleans, La., for. appellants.
Nicholas Callan, Philip S. Pugh, Jr., and Harold A. Moise, all of New Orleans, La., for appellees.
Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.
BRYAN, Circuit Judge.
These are two libels in rem against the steamship Western Wave; one by the Johnson Iron Works Dry Dock & Shipbuilding Company for repairs, and the other by the Board of Commissioners of the Port of New Orleans for wharfage. The claimant and owner of the ship, the North American Fruit & Steamship Corporation, defended on the grounds that the repairs and wharfage were furnished to the New Orleans, Houston & Corpus Christi Steamship Company, charterer, which was forbidden by the terms of the charter party from subjecting the ship to any liens except for seamen’s wages and salvage, and that neither libelant was entitled to a lien on it, because by the exercise of reasonable diligence each of them could have ascertained that the charterer had no authority to bind the vessel. A decree was entered awarding to each libelant a lien on the vessel for the full amounts claimed which admittedly were due and owing by the charterer; and from it the shipowner appeals.
Appellant on March 28, 1931, entered into a charter party for the hire of the steamship Western Wave for the period of one year to the New Orleans, Houston & Corpus Christi Steamship Company. The bare boat was chartered. The charterer agreed to pay all charges, make all necessary repairs, and not to permit any liens except for crew’s wages and salvage; to notify any person furnishing repairs, supplies, towage, or other necessaries, that it had no right to create liens therefor; to post on the steamer in a conspicuous place, and to maintain there during the life of the charter, a notice reading as follows: “This steamer is the property of the North American Fruit & Steamship Corporation. It is under Charter to New Orleans, Houston & Corpus Christi S. S. Co. Inc., and by the terms of the Charter neither the Charterer nor the Master has any right, power, or authority to create, incur, or permit to be imposed upon the steamer any liens whatsoever except for crew’s wages and salvage.”
The charterer was given the option during the life of the charter to purchase the vessel for $35,000. It was also required to keep a copy of the charter party with the ship’s papers, and according to the undisputed evidence this was done. At the time the charter party was entered into, the Western Wave was laid up at Walnut street in the harbor of New Orleans, and before being moved copies of the notice were posted in the passageway to the saloon, in the smoking room, in the pilot house, and in the crew’s messroom. The charterer was incorporated by two brothers, N. L. Proctor, who became president, and J. C. Proctor, who became vice president. The former acted as master of the Western Wave and the latter as manager. J. C. Proctor arranged with Neil Armstrong, superintendent of the Johnson Iron Works, whom he had known for many years, to make certain repairs to the vessel which were necessary before it could be put into commission and engage in the carrying trade for which it had been chartered between New Orleans and other Gulf ports. lie testified he told Armstrong that he and his brother were chartering the ship from appellant, and Armstrong agreed to make repairs on the credit of the Proctors and their newly formed corporation. Armstrong denied that this was the arrangement, and said J. C. Proctor told him that he and his brother, acting for the corporation which they had just organized, had bought the ship. Armstrong knew that appellant had theretofore been the owner, because as superintendent of the Johnson Iron Works he had been accustomed to make all repairs to it for appellant; but he said that he did not see any of the posted notices, and accounts for this by the circumstance that none of them was placed in the engine room where the repairs ordered by Proctor were made. A newspaper article published in New Orleans stated that according to an announcement made by J. C. Proctor steamship service would soon be inaugurated by the Proctor Company between New Orleans and other Gulf ports; and added that the new company had purchased the Western Wave. That article is relied on to discredit J. C. Proctor and to corroborate Armstrong, and further as justification for the belief on the part of the Johnson Iron Works that it would have a maritime lien on the vessel; hut it was published after Armstrong agraed to make the repairs. Appellant had a local representative at New Orleans by the name of Campbell, who acted during the time the vessel was chartered also as bookkeeper and auditor for the charterer. Campbell knew that Armstrong, for the Johnson Iron Works, was making the repairs, and he knew also that the Board of Commissioners of the Port of New Orleans, commonly called the “Dock Board,” was furnishing wharfage space; but he kept silent as to the terms on which the Western Wave was turned over to the Proctors and their corporation, and as to the continued ownership of the vessel by appellant. The Dock Board does not claim to have been misled into extending credit to the charterer. It is a public agency of the state of Louisiana, vested by law with complete jurisdiction of the public wharves of the Port of New Orleans, and with authority to establish and collect charges for the use of all facilities administered by it. Ulster S. S. Co. v. Board of Commissioners of Port of New Orleans (C. C. A.) 299 F. 474. It stands on its published tariffs which provide that the ship is responsible for all charges for use of the public wharves, and takes the position that it has a maritime lien .on the Western Wave for wharfage, regardless of the ownership of that vessel or of the authority of the person in custody of it.
The Johnson Iron Works in our opinion did not acquire a maritime lien, because by the exercise of reasonable diligence it could have ascertained that J. C. Proctor had no authority from the owner to bind the vessel for the repairs which were made upon his order. 46 USCA § 973. Armstrong, according to his testimony, which the District Court apparently accepted in preference to that of Proctor, had known appellant as owner of the Western Wave. Reasonable diligence on his part, upon being told by Proctor that he and his brother had bought the ship, would have required an examination of the ship’s papers, and such an examination in turn would have revealed the truth that neither Proctor nor the new company had authority to place a lien upon the ship for repairs. An inquiry of Campbell, the local agent, would have resulted either in a denial of Proctor’s claim of ownership, or in the Johnson Iron Works being in a better position to assert the claim now made of fraud and deception. The newspaper article could not have influenced Armstrong to enter into the contract for repairs, since it was published after that contract was made. The evidence strongly suggests that Armstrong intentionally refrained from seeking information from Campbell, and that Campbell as deliberately and carefully refrained from volunteering any information to Armstrong. But the statute places the burden of exercising diligence upon the furnisher of repairs, and not upon the owner or his agent; and so we have here no question of estoppel of the owner to assert the truth. The charter party was on board among the ship’s papers where it was required by the owner to be kept, and where it was open to inspection. Under the undisputed facts, the Johnson Iron Works was chargeable with knowledge that the vessel was under charter, and of the terms of that charter. United States v. Carver, 260 U. S. 482, 43 S. Ct. 181, 67 L. Ed. 361.
We are of opinion also that the Dock Board, because of its failure to make inquiry as to the charterer’s authority, and because of the charterer s lack of authority to bind the vessel, has no maritime lien for wharfage. By the general maritime law, without the aid of.a statute, liens are given for necessaries furnished upon the credit of a foreign vessel. The Roanoke, 189 U. S. 185, 23 S. Ct. 491, 47 L. Ed. 770. Among these necessaries are wharfage, Ex parte Easton, 95 U. S. 68, 24 L. Ed. 373; pilotage on the high seas, Id.; and on inward and outward voyages, The Pirate (D. C.) 32 F. 486; stevedoring, El Amigo (C. C. A.) 285 F. 868; Atlantic Transpor Co. v. Imbrovek, 234 U. S. 52, 34 S. Ct. 733, 58 L. Ed. 1208, 51 L. R. A. (N. S.) 1157; and of course seamen’s wages and salvage. By the Maritime Lien Act of 1910, 36 Stat. 604 [46 USCA § 971 note] Congress provided that: “Any person furnishing repairs, supplies, or other necessaries, including the use of dry dock or marine railway, to a vessel, whether foreign or domestic, upon the order of the owner or owners of such vessel, or of a person by him or them authorized, shall have a maritime lien on the vessel which may be enforced by a proceeding in rem, and it shall not be necessary to allege or prove that credit was given to the vessel.” After the passage of this act it was held in the Second circuit that towage was not included within its provisions. The J. Doherty (D. C.) 207 F. 997; The Hatteras (C. C. A.) 255 F. 518. The case last cited was decided in 1918, and in 1920 the act of 1910 was amended to include towage by name, and so as to read: “Any person furnishing repairs, supplies, towage, use of dry dock or marine railway, or other necessaries,” etc. 46 USCA § 971. Section 973 of the same title provides: “But nothing in this chapter shall be construed to confer a lien when the furnisher knew, or by exercise of reasonable diligence could have ascertained, that because of the terms of a charter party, agreement for sale of the vessel, or for any other reason, the person ordering the repairs,. supplies, or other necessaries was without authority to bind the vessel therefor.” In Piedmont & George’s Creek Coal Co. v. Seaboard Fisheries Co., 254 U. S. 1, it was said at page 11, 41 S. Ct. 1, 4, 65 L. Ed. 97, that the purpose of the act of 1910 was: “First, to do away with the artificial distinction by which a maritime lien was given for supplies furnished to a vessel in a port of a foreign country or state, but denied where SUppjies Were furnished in the home port or state. * * * Second, to do away with the doctrine that when the owner of a vessei contracts in person for necessaries or js present in the port when they are ordered, it is presumed that the materialman did not intend to rely upon the credit of the vessel, and that hence no lien arises. * * * Third, to substitute a singje federal statute for the state statutes in so far as they confer liens for repairs, suppijes and other necessaries.” While the acts of 1910 and 1920 were not intended to take away any maritime lien, Piedmont & George’s Creek Coal Co. v. Seaboard Fisheries Co., supra; New Bedford Dry Dock Co. v. Purdy, 258 U. S. 96, 42 S. Ct. 243, 66 L. Ed. 482; Marshall & Co. v. S. S. President Arthur, 279 U. S. 564, 49 S. Ct. 420, 73 L. Ed. 846, they were intended to require those who furnish necessaries to vessels, as conditions precedent to the ex-jstence of liens, to use reasonable diligence to aScertain that the persons ordering necessaries have authority to bind such vesseis. We think the statutory words “other necessaries” should not be narrowly, interpreted as was done in cases like The J. Doherty, The Hatteras, supra, The Muskegon (C. C. A.) 275 F. 348, The Suelco (D. C.) 286 F. 286, but that they should be given a broad meaning, as they were in The Rupert City (D. C.) 213 F. 263, and The Henry S. Grove (D. C.) 285 F. 60, and held to include maritime services generally, at least in so far as port charges are concerned, whether such services consist of the furnishing of labor or material. If materials only were furnished, there would be no need to add anything to the words repairs and supplies. Towage was included under the circumstances we have already stated, and we see no reason why other maritime services, such as stevedoring, pilotage, and wharfage should not be, since they all give rise to maritime liens. In King v. Smith, 30 F.(2d) 890, this court rejected a claim of lien for wharfage because the lien claimant’s agent knew that the owner had some interest in the libeled barge, and was therefore put on inquiry as to the extent of that interest, as disclosed by the charter party. The ruling was not much discussed, it is true, but it was made because of section 973, and of the decision in the Carver Case, supra, which we think is controlling here.
The decrees are reversed, and the causes remanded for further proceedings not inconsistent with this opinion.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_r_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.
UNITED STATES ex rel. Robert BLANCO, Appellant, v. RKO THEATRES INC., d/b/a RKO Greenpoint, Appellee.
No. 301, Docket 71-1812.
United States Court of Appeals, Second Circuit.
Argued Nov. 16, 1971.
Decided Dec. 17, 1971.
Robert Blanco, Elmhurst, N. Y., for appellant.
Frank J. Amabile, Brooklyn, N. Y., for appellee.
Before MOORE, HAYS and MULLIGAN, Circuit Judges.
PER CURIAM:
On February 22, 1961 Mrs. Dorothy Blanco suffered certain injuries in a fall in one of appellee’s theaters due to appel-lee’s alleged negligence. She commenced an action for damages in New York State Supreme Court, and there moved for a general trial preference, apparently on the ground that the seriousness of her injuries warranted such a disposition of her case. The motion was denied and the case remained in its assigned position on the jury calendar. Mrs. Blanco appealed the denial of the motion, and the order was affirmed by the Appellate Division. On motion for reconsideration in the Supreme Court, the motion was again denied. Mrs. Blanco then petitioned the district court for a writ of habeas corpus, alleging that the denial of a general trial preference deprived Mrs. Blanco of the right to a jury trial, thus violating her right to due process of law under the fourteenth amendment. Basing jurisdiction on 28 U.S.C. § 1331(a) (1970), petitioner requested that the district court order the New York Supreme Court to grant Mrs. Blanco a general preference. The district court dismissed for lack of jurisdiction. We affirm. Mrs. Blanco was not deprived of a jury trial. The constitutional claim is frivolous.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_genapel1
|
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.
Clarence William JONES, Appellant, v. UNITED STATES of America, Appellee.
No. 19362.
United States Court of Appeals District of Columbia Circuit.
Argued Oct. 12, 1965.
Decided Nov. 29, 1965.
Mr. Odell Kominers, Washington, D. C., (appointed by this court) for appellant.
Mr. Allan Palmer, Asst. U. S. Atty., for appellee. Messrs. John C. Conliff, Jr., U. S. Atty. at the time the brief was filed, Frank Q. Nebeker, Harold H. Titus, Jr., Asst. U. S. Attys., and Edwin C. Brown, Jr., Asst. U. S. Atty., at the time the record was filed, were on the brief for appellee. Mr. David C. Acheson, U. S. Atty., at the time the record was filed, also entered an appearance for appellee.
Before Bazelon, Chief Judge, and Danaher and Wright, Circuit Judges.
PER CURIAM:
Appellant was convicted on charges of possession and sale of narcotics. On this appeal he challenges the trial court’s denial of his motion to suppress narcotics which he alleges were seized pursuant to an invalid search warrant. He asserts that the affidavit of two narcotics agents submitted to the Commissioner did not disclose probable cause for issuance of the warrant.
The affidavit recited that a confidential informant, “whose reliability has been proven in the past,” told the agents that appellant was selling heroin at his apartment at the second floor, front, 11 Randolph Place, N. W.; that the agents met with the informant and, after searching him and finding him free of narcotics, furnished him with Official Government Advance Funds to purchase narcotics from appellant at his apartment; that the informant was observed by the agents to enter 11 Randolph Place, N. W., without meeting anyone en route, and was then observed by them to emerge, surrendering to the agents what tests showed was a narcotic substance; that the informant told the agents that he had purchased the narcotics from appellant in the second floor front apartment at 11 Randolph Place; and that the informant identified appellant from a police photograph as the person from whom he had made the purchase. On the basis of this affidavit, a search warrant was issued for narcotics and narcotics paraphernalia in “second floor, front, 11 Randolph Place.”
When an affidavit is “based on hearsay information * * * the magistrate must be informed of [1] some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and [2] some of the underlying circumstances from which the officer concluded that the informant * * * was ‘credible’ or his information ‘reliable.’ ” Aguilar v. State of Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964). The first sort of circumstances were clearly presented in the affidavit. And the agents’ observation of the informant entering 11 Randolph Place, N. W., without narcotics and emerging with narcotics in his possession and his identification of appellant’s photograph provided bases for the agents to “credit” the information that appellant was selling narcotics in the second floor, front, thus satisfying the second Aguilar requirement. While it would have been preferable if the affidavit had also detailed the basis for the agents’ conclusion that the informant had proved reliable in the past, its failure to do so does not preclude probable cause in light of the substantial “crediting” circumstances.
Recital of some of the underlying circumstances in the affidavit is essential if the magistrate is to perform his detached function'and not serve merely as a rubber stamp for the police. However, where these circumstances are detailed, where reason for crediting the source of the information is given, and when a magistrate has found probable cause, the court should not invalidate the warrant by interpreting the affidavit in a hyperteehnical, rather than a commonsense, manner. * * [T]he resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants. [United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965).]
For the foregoing reasons, appellant’s conviction must be affirmed.
So ordered.
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_dissent
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
UNITED STATES of America v. John TODARO, Appellant.
No. 19430.
United States Court of Appeals, Third Circuit.
Argued Jan. 29, 1971.
Decided Sept. 3, 1971.
James B. Magnor, New York City, for appellant.
Stephen M. Greenberg, Asst. U. S. Atty., Newark, N. J., for appellee.
Before FORMAN, ALDISERT and GIBBONS, Circuit Judges.
OPINION OF THE COURT
FORMAN, Circuit Judge.
Appellant, John Todaro, was tried by a jury and convicted in the United States District Court for the District of New Jersey on an indictment charging violations on one count under 18 U.S.C. § 1951, 2**and on a second under 29 U.S.C. § 186. Appellant was sentenced to two years’ imprisonment on the first count and one year on the second, the terms to run consecutively, and was fined $1,000 on each count.
The act which formed the basis of the verdict of guilty was appellant’s attempt between January and March 1970 to secure “ * * * $500 now, a little in June and July, and something before Christmas” from Henry Vernwald, an employee of Nash Janitorial Services, Inc. (hereinafter Nash), a corporation of the State of Washington engaged in interstate commerce. The attempt followed shortly after an award to Nash of a Government contract for the cleaning of a federal building in Newark, New Jersey. At that time appellant, a business representative in the maintenance division of the Teamsters Union Local 97, was engaged in negotiations with Mr. Vernwald for the employment of members of his union. Fearing economic loss if he failed to comply with appellant’s demand, Mr. Vernwald delayed shipments of supplies from Philadelphia, Pennsylvania, and contacted the Federal Bureau of Investigation.
Principally, appellant challenges as prejudicial (1) a question asked by the District Judge on voir dire, (2) the presence of a copy of the indictment in the jury room during deliberations, and (8) the admission of the testimony of two witnesses. He assigns numerous additional errors which he claims deprived him of a fair trial. These were not objected to in the District Court, and are raised here for the first time.
The District Judge asked the jury on voir dire whether they could follow an instruction that a union official “ * * * may be guilty of a crime by merely demanding money from an employer, without any money changing hands.” (Emphasis supplied.)
Appellant asserts that this question unfairly influenced the jury to his prejudice from the start. In the context of the voir dire, where the District Judge had outlined the charges in the indictment shortly before asking this question, it amounted simply to a sounding of the jury’s willingness to follow the provisions of the statutes. It was far from plain error and well within his discretion under Rule 24(a) of the Federal Rules of Criminal Procedure.
Likewise, the District Judge did not err in allowing the jurors to have a copy of the indictment with them during their deliberations. This is a matter within the discretion of the District Judge, subject to a limiting instruction that the indictment does not constitute evidence, but is an accusation only. We have examined the charge of the District Judge and find that he properly instructed the jury on this point.
Nor did the District Judge err in allowing two witnesses to testify over appellant’s objections on the grounds of unfair prejudice and irrelevancy. First, Walter Hawzen, whose company held the contract immediately before it was awarded to Nash, was permitted to testify that his losing bid reflected an hourly wage base submitted to him by appellant, who represented his employees. After Nash was awarded the contract, he observed that appellant had agreed to a lower hourly rate from Mr. Vernwald, and when he demanded to know appellant’s reason for this “ * * * he [appellant] told me that I was selfish and I wanted all the profits for myself.” This conversation took place a few minutes before appellant’s alleged attempt to obtain the money from Mr. Vernwald. Appellant challenges it as irrelevant.
Following an offer of proof, Ralph Tessitore was permitted to testify next that appellant had approached him, and demanded that the recently established janitorial services agency in which only he and his brother-in-law were involved join the Teamsters Union. He stated that appellant “ * * * made it quite clear that he controlled the State of New Jersey” and that if Mr. Tessitore did not join, he “ * * * might wake up some morning and find (his) trucks smashed and all (his) equipment ruined. Of course, in the old days, people’s families were hurt.” Appellant challenges this testimony as inflammatory and prejudicial. Mr. Tessitore went on to relate that appellant demanded an “initiation fee” of $50 to be paid to him at Christmas. This testimony is attacked as irrelevant. The entire conversation took place about two months after the alleged attempt to secure money from Mr. Vernwald.
We agree with the Government’s contention that the testimony of both witnesses had probative value, and was neither unfairly prejudicial nor irrelevant. We have affirmed in several cases the principle that evidence of both prior and subsequent acts is admissible if:
“ * * * stated in terms of the capacity of the evidence to prove some specific fact or issue such as intent, plan, scheme or design * * *. Evidence of other offenses may be received if relevant for any purpose other than to show a mere propensity or disposition on the part of the defendant to commit the crime.”
In United States v. Carter we stated that:
“Evidence of other offenses, wholly independent of the one charged, is generally inadmissible. This rule is subject to some well-established exceptions, one of which * * * (is) * * * where the other offense is logically connected with that charged, or where the act is so closely and inextricably a part of the history of the guilty act itself as to form part of the common plan or scheme of criminal action.”
We find that the testimony of Messrs. Hawzen and Tessitore falls within the meaning of the above-stated language and was relevant for the purpose of showing appellant’s intent, design and modus operandi. We cannot find, on the other hand, that Mr. Tessitore’s testimony, specifically his reference to appellant’s statement concerning the practice of “hurting families” was inflammatory or unfairly prejudicial. It was said to have taken place “in the old days” and was remote from the actual threat. In addition, any potential error was cured by the District Judge’s instruction that the testimony of these witnesses was relevant only in the consideration of appellant’s intent, plan or scheme, and that they were to draw no other inferences from it.
Appellant’s other objections, as mentioned previously, were not raised in the trial court, and are presented here for the first time. In such circumstances, we are limited by Rules 30 and 52 of the Federal Rules of Criminal Procedure to the consideration of defects which constitute plain error. This rule, however:
“ * * * is appropriate only in exceptional cases where it is necessary to prevent grave miscarriages of justice or to preserve the integrity of the judicial proceedings.”
Nevertheless, we have reviewed the entire record, including the District Judge’s fully stated instructions, and are convinced that the issues now raised by appellant did not affect his substantial rights or the fairness of the proceedings in the District Court, and require no further discussion.
The judgment of conviction will be affirmed.
. Section 1951 provides in pertinent 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 * * * 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—
}¡S >js * s}{ *
“ (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.”
Subsection (b) (3) defines commerce to encompass interstate commerce.
. Section 186 provides in pertinent part:
“(a) It shall be unlawful for any employer * * * or any person * * * who acts in the interest of an employer to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value—
“(1) to any representative of any of his employees who are employed in an industry affecting commerce ; or $ # #
“(b) (1) It shall be unlawful for any person to request, demand, receive, or accept, or agree to receive or accept, any payment, loan, or delivery of any money or other thing of value prohibited by subsection (a) of this section.
sjs sje s|s
“(d) Any person who willfully violates any of the provisions of this section shall, upon conviction thereof, be guilty of a misdemeanor and be subject to a fine of not more than $10,000 or to imprisonment for not more than one year, or both.”
. In the trial court appellant’s objection was to the use of the phrase “is guilty,” as proposed by the Government. The District Judge’s language conformed to appellant’s request.
. See Hawkins v. United States, 434 F.2d 738, 739 (5 Cir. 1970) ; United States v. Rabb, 394 F.2d 230, 233 (3 Cir. 1968) ; United States v. Bowe, 360 F.2d 1, 9 (2 Cir. 1966), cert. den. 385 U.S. 961, 87 S.Ct. 401, 17 L.Ed.2d 306 (1966) ; United States v. Lebron, 222 F.2d 531, 536 (2 Cir. 1955), cert. den. 350 U.S. 876, 76 S.Ct. 121, 100 L.Ed. 774 (1955).
. United States v. Press, 336 F.2d 1003, 1016 (2 Cir. 1964), cert. den. 379 U.S. 965, 85 S.Ct. 658, 13 L.Ed.2d 559 (1965) ; United States v. Schanerman, 150 F.2d 941, 945 (3 Cir. 1945).
. United States v. Stirone, 262 F.2d 571, 576 (3 Cir. 1958), rev’d on other grounds, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960).
. 401 F.2d 748, 749 (3 Cir. 1968), cert. den. 393 U.S. 1103, 89 S.Ct. 905, 21 L.Ed.2d 797 (1968). See Robinson v. United States, 366 F.2d 575, 578 (10 Cir. 1966), cert. den. 385 U.S. 1009, 87 S.Ct. 717, 17 L.Ed.2d 547 (1967) ; United States v. Laurelli, 293 F.2d 830, 832 (3 Cir. 1961), cert. den. 368 U.S. 961, 82 S.Ct. 406, 7 L.Ed.2d 392 (1962) ; United States v. Klass, 166 F.2d 373, 377 (3 Cir. 1948) ; United States v. Bradley, 152 F.2d 425, 426 (3 Cir. 1945).
. They include: (1) that the District Judge did not properly charge on “reasonable doubt” or on the element of “fear” necessary to prove extortion, (2) that sua sponte he should have instructed the jury that appellant’s use of an alias at age 15 should have been disregarded by it; that the Government’s case was not proved because no money changed hands, no work stoppage occurred, and Yernwald’s testimony was uncorroborated, (3) that evidence of a taped telephone conversation between Mr. Yernwald and appellant should have been ruled inadmissible, even though at the trial appellant stipulated its admissibility.
. United States v. Carter, supra, 401 F.2d note 7, at 750. See United States v. Phillips, 431 F.2d 949, 950 (3 Cir. 1970) ; United States v. Panepinto, 430 F.2d 613, 617 (3 Cir. 1970), cert. den. Orangio v. United States, 400 U.S. 949, 91 S.Ct. 258, 27 L.Ed.2d 256 (1970) ; United States v. Lawson, 337 F.2d 800, 807-808 (3 Cir. 1964), cert. den. 380 U.S. 919, 85 S.Ct. 913, 13 L.Ed.2d 804 (1965) ; United States v. Kravitz, 281 F.2d 581, 587 (3 Cir. 1960), cert. den. 364 U.S. 941, 81 S.Ct. 459, 5 L.Ed.2d 372 (1961).
Question: What is the number of judges who dissented from the majority?
Answer:
|
songer_typeiss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
COLBECK et al. v. UNITED STATES, and three other cases.
(Circuit Court of Appeals, Seventh Circuit.
December 8, 1925.
Rehearing Denied January 13, 1926.)
Nos. 3558, 3560, 3562, 3618.
1. Criminal law <@=1149 — Indictment and Information <@=136 — Motion to quash indictment addressed to court’s discretion, and decision not reviewabie on writ of error.
Motion to quash indictment is always addressed to discretion of court, and a decision thereon cannot be reviewed on writ of error.
2. Indictment and information <S=I0 — Convict not incompetent witness, on whose testimony indictment cannot be found.
A person convicted of an infamous crime is not an incompetent witness, on whose testimony indictment cannot be found.
3. Indictment and information <@=138 — Motion to quash held bad as alleging mere conclusions and no facts.
Motion to quash indictment because it “was not found * * * on legal and competent evidence, but was found and based wholly and entirely on illegal, incompetent, and hearsay evidence,” held bad on its face as alleging mere conclusions and no facts.
4. Criminal law <@=301 — Indictment and information <@=139 — Refusal to permit withdrawal of pleas of not guilty and filing of motion to quash indictment held within court’s discretion.
Refusal to permit defendants, just before trial, to withdraw pleas of not guilty and file motion, sworn to on information and belief, to quash indictment, returned on illegal, incompetent, and insufficient evidence, held within court’s discretion.
5. Criminal law <@=572 — Essentials of defense • of “alibi” stated.
Defense of “alibi” means that defendant was away from scene when crime was committed, and hence could have taken no part in it, and, to be effective, it must appear that defendant was elsewhere during all activities going to make up crime and show his connection with it.
[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Alibi.]
6. Criminal law <@=69 — Accessories before the fact are principals.
Under Criminal Code, § 332 (Comp. St. § 10508), accessories before the fact are principals.
7. Criminal law <@=59 (5) — Actual presence when crime is committed not essential to guilt of aiding and abetting.
Actual presence when crime is committed is not essential to guilt of aiding and abetting its commission.
8. Criminal law <@= 1172(1) — Instructions belittling defense of alibi held not prejudicial.
Where evidence of alibi went only to time of actual robbery, ard no effort was made to show that defendants were not at places where, at- times when, evidence tended to show they were aiding and abetting, crime, as charged, by assisting in preparations for it, they were not injured if instructions “belittled and disparaged” such defense.
9. Criminal law <@=i 170t/2(l) — Witnesses <@= 357 — Exclusion of impeaching witnesses’ testimony that they would not believe witness under oath, not error, and not prejudicial.
Refusal to permit impeaching witnesses to state whether they would believe witness under oath held not error, and in any event not prejudicial, where he was admitted convict, and admitted his guilt in instant case, other witnesses had testified that his general reputation for truth and veracity was bad, and no contrary testimony was offered by government.
10. Criminal law <@=789(2) — Instruction defining reasonable doubt held not erroneous.
Instruction defining reasonable doubt held not erroneous.
11. Criminal law <@= 1059(1) — Exception to instruction held insufficient.
Exception to “supplemental instruction upon the subject of reasonable doubt” held insufficient to present any question for review.
12. Post office <§=49 — Evidence held to sustain conviction of robbing persons in charge of mail.
Evidence of defendant’s activity in preparation for mail robbery, to be committed when conditions warranted, justified conviction under Criminal Code, §§ 194, 197 (Comp. St. §§ 10364, 10367), of robbing persons in charge of mail, though his presence at time - of robbery, after date first intended, was not shown, and court’s instruction and refusal of defendant’s instruction as to abandonment of enterprise by him were not erroneous.
In Error to the District Court of the United States for the Southern Division of the Southern District of Illinois.
William P. Colbeck, Oliver Daugherty, Stephen Ryan, David Robinson, Charles Smith, Charles Lanham, Gustav B. Dietmeyer, Prank Haekethal, and Prank Eppelsheimer were convicted of violations of Criminal Code, §§ 194, 197, and they bring error.
Affirmed.
James E. Carroll and William Baer, both of St. Louis, Mo., and L. S. Harvey, of Kansas City, Kan., for plaintiffs in error Col-beck-and others.
Thomas J. Rowe, Sr., of St. Louis, Mo., for plaintiffs in error Lanham and another.
Edmund Burke, of Springfield, Ill., for plaintiff in error Haekethal.
Edward Pree, of Springfield, Ill., for plaintiff in error Eppelsheimer.
Thomas Williamson, of Springfield, Ill., and Horace L. Dyer, of St. Louis, Mo., for the United States.
Before ALSCHULEE,, PAGE, and ANDERSON, Circuit Judges.
Petition of Hackethal for certiorari denied 46 S. Ct. 474, 70 L. Ed. —.
ANDERSON, Circuit Judge.
The plaintiffs in error, with several others, were charged in the court below with the violation of sections 194 and 197 of the Criminal Code (Comp. St. §§ 10364, 10367). The indictment is in four counts, and charges all the defendants, in the first count with robbing persons having lawful charge of the mails; in the second, with robbing such persons and in effecting the robbery, putting the life of the persons having custody of the mails in jeopardy by the use of deadly weapons; in the third, with receiving and concealing stolen mail matter, knowing that it was stolen; and, in the fourth, with having possession of stolen mail matter with knowledge that it was stolen. Plaintiff in error Dietmeyer was found guilty on counts 1 and 2, and the other eight plaintiffs in error were found guilty on all counts. Each was sentenced to the penitentiary for 25 years. Some of them assigned errors and petitioned for writs together and some separately. They are all here on one record; their cases have been heard together, and will be so disposed of. The errors chiefly relied on in the briefs and urged upon the argument are: (a) The overruling of the motions to quash the indictment; (b) the instructions upon alibi; (c) the refusal to allow impeaching witnesses to say whether they would believe an impeached witness under oath; and (d) the instruction upon reasonable doubt.
(a) The motion to quash.
The indictment was returned on September 3, 1924. On October 10, Dietmeyer and Lanham filed their motions to quash. These motions were identical in terms and were based wholly upon the alleged fact that the indictment was found and presented on the evidence of a convict. On October 21, Eppelsheimer filed his motion to quash “because said indictment was not found and presented by the grand jury on legal and competent evidence, but was found and based wholly and entirely on illegal, incompetent, and hearsay evidence.” No other conclusion and no facts whatever were alleged in his motion. The case came on for trial on November 10, 1924, and on that morning, just before the trial began, while the jury was in waiting, Colbeek, Daugherty, Robinson, Smith, and Ryan asked leave to withdraw their pleas of not guilty and to file a motion to quash. This motion to quash was based upon the allegation that the indictment was returned upon illegal and incompetent’ evidence and without legal evidence to connect defendants with the crime charged. These motions were all sworn to upon information and belief.
“A motion to quash is always addressed to the discretion of the court, a decision upon it is not error, and cannot be reviewed on a writ of error.” United States v. Hamilton, 109 U. S. 63, 3 S. Ct. 9, 27 L. Ed. 857; United States v. Rosenberg, 7 Wall. 580, 19 L. Ed. 263; Logan v. United States, 144 U. S. 263, 282, 12 S. Ct. 617, 36 L. Ed. 429; Durland v. United States, 161 U. S. 306, 314, 16 S. Ct. 508, 40 L. Ed. 709; Radford v. United States, 129 F. 49; 51, 63 C. C. A. 491. But, aside from this, the motions of Dietmeyer and Lanham were based upon the erroneous notion that a person convicted of an infamous crime is an incompetent witness. The old common-law rule of the incompetency of felons as witnesses is no longer in force in the courts of the United States. Rosen v. United States, 245 U. S. 467, 38 S. Ct. 148, 62 L. Ed. 406; Peace v. United States (C. C. A.) 278 F. 180.
Eppelsheimer’s motion stated no facts and alleged mere conclusions and was bad on its face. The request of Colbeek, Daugherty, Robinson, Smith, and Ryan for permission to withdraw their pleas of not guilty and file motion to quash came just as the court was entering upon the trial, and the refusal to permit them to withdraw their pleas of not guilty and file their motion was purely within the discretion of the court. On October 31, the motion of Eppelsheimer came on to be heard. He called the district attorney to the stand, who testified that persons, eyewitnesses, testified before the grand jury to the subject-matter in all its phases, and, in answer to a question, whether there was other evidence before the jury besides the statements of the convict to connect the defendant with the crime the district attorney said “there was positive identification by witnesses.” So it appears there was already evidence in the ease ten days before the day of trial that competent and legal evidence upon all phases of the matter had been presented to the grand jury. This ease illustrates the abuses to which such practices would lead if they were encouraged. • If a defendant, without any knowledge of the facts, upon a motion sworn to upon information and belief, can compel a review of the evidence before the grand jury, which returned the indictment against him, to ascertain whether it was competent or sufficient, then all the evidence received must be brought before the court to be weighed and examined. Such practice should not be tolerated, much less encouraged.
In the case most cited in support of such procedure, the reason given for it is that “no person should be subjected to the expense, vexation, and contumely of a trial for a criminal offense, unless the charge has been investigated, and a reasonable foundation laid for an indictment or information.” As stated by the court, in Radford v. United States, supra, after conviction this reason no longer exists, a jury, under the guidance of the judge, having heard the evidence in open court and having come to the conclusion, not only that there was reasonable ground for the charge but also that the charge was true.
(b) Alibi.
This defense means that the defendant was elsewhere, away from the scene of the crime when it was committed, and therefore could not have taken part in it. To be effective, it must appear that the defendant was elsewhere during all the activities which go to make up the crime and show his connection with it. The defendants wei’e all indicted as principals. There was evidence to show that a part only perpetrated the actual robbery, while the other’s were accessories befoi’e the fact. Under section 332 of the Criminal Code (Comp. St. § 10506), accessories before the fact are principals, and it has been held that an accessory before the fact may be charged as a principal, and the charge will be sustained by proof showing him to be an accessory before the fact. Vane v. United States, 254 F. 32, 165 C. C. A. 442; Di Preta v. United States (C. C. A.) 270 F. 73. It is not necessary that one who aids and abets the commission of a dime be present when the crime is committed. Parisi v. United States (C. C. A.) 279 F. 253, 255. In Jin Fuey Moy v. United States, 254 U. S. 189, 41 S. Ct. 98, 65 L. Ed. 214, the Supreme Court upheld the conviction of a physician upon a charge of “selling” morphine when the evidence showed him to have aided and abetted the sale by issuing a prescription upon which a druggist made the sale. The evidence of the so-called alibi went only to the time of the actual robbery. There was no effort to show that the defendants urging this defense were not at the places at the times when the evidence tended to show them aiding and abetting the crime by assisting in the preparations for it. It did not pretend to cover the activities alleged against them and therefore it was no alibi at all. The complaint is . that the court, in its instructions upon this point, “belittled and disparaged” this defense. As the showing made did not rise to the dignity of an alibi, it is difficult to see how the defendants, were injured by the court’s treatment of it.
(c) Refusal to allow the question to be put to the impeaching witnesses whether they would believe Renard under oath.
The impeaching witnesses were asked if they knew the general reputation of Renard in the community in which he resided for truth and veracity. Upon answering “Yes,” they were asked-what it was, and each said it was bad. They were then asked, “Based on what you have said as to'his general reputation for truth and veracity, would you believe him on oath?” The government’s objection to this question was sustained, and the ruling excepted to. There is conflict in the decisions upon this question. The Supreme Court in Teese et al. v. Huntingdon et al., 23 How. 2, 16 L. Ed. 479, said:
“According to the views of Mir. Green-leaf, the inquiry in all cases should be restricted to the general reputation of the witness for truth and veracity; and he also expresses the opinion that the weight of authority in the American courts is against allowing the question to be put to the impeaching witness whether he would believe the other on his oath. In the last edition of his work on the law of evidence, he refers to several decided eases, which appear to support these positions; and it must be admitted that some of these decisions, as well as others that have since been made to the same effect, are enforced by reasons drawn from the analogies of the law, to which it would be difficult to give any satisfactory answer,” citing numerous cases.
We think the weight of authority sustains the ruling below. But suppose the ruling should have been the other way, was the error a substantial one? Renard was an admitted convict. He was brought from prison to testify. He admitted his guilt in the instant case and testified to his participation in it. Witnesses had testified that his general reputation for truth and veracity was bad and no testimony to the contrary was offered by the government. It is not perceived how his standing as a witness could .be further impaired by allowing witnesses to express their opinion that they did not regard him worthy of belief. No substantial injury was done plaintiffs in error by this xruling.
(d) Reasonable doubt.
At the close of the charge to the jury, the court asked defendant’s counsel if they had any suggestions to make. The record shows this to have occurred.
“Mr. Baer: The defendants and each of them desire to except to the charge of the court' upon the subject of reasonable doubt, as not being a proper statement of the law upon the subject of reasonable doubt.
“The Court: In what respect?
“Mr, Baer: Well, I think it leaves to the jury the question of this doubt based upon a reason, and does not advise the jury specifically that a reasonable doubt, if it is created, is of itself sufficient, in the absence of all other evidence, to warrant an acquittal of the defendants.”
The court had already in its instructions, after defining a reasonable doubt, specifically told the jury that if they had such a doubt as to the guilt of any or either of the defendants in the ease, it was their duty to give such defendants the benefit of such doubt. After the jury had been out for some time, the court called them back and asked whether any question of law was troubling-them, whéreupon this occurred:
“The Juror: Well, we have had some discussion in regard to what would be considered a reasonable doubt.
“The Court: A reasonable doubt, gentlemen, is just such a doubt as the name implies — a doubt based upon reason, and that reason being based upon the evidence or lack of evidence in the case. A reasonable doubt is not the possibility of a doubt, nor the probability of a doubt, nor a speculative doubt, but a substantial doubt, based upon the evidence or lack of evidence in the case. If, upon a consideration of all of the evidence in the ease, you have'a conviction amounting to a moral certainty that such and such is the case, then the proof is beyond a reasonable doubt. Is there anything else?
“Mr. Baer: The defendants and each of them except to the supplemental instruction given by the court upon the subject of alibi and upon the subject of reasonable doubt.”
Under the rules of practice in this situation, the exception to what is called the supplemental instruction on reasonable doubt presents no question at all. The exception is to the “supplemental instruction upon the subject of reasonable doubt.” It does not point out wherein the instruction is wrong and thus give the court an opportunity to correct it. But we fail to see. any error in the instruction complained of. It certainly is sound as far as it goes, and is not subject to the meticulous criticisms made of it in the briefs.
The court directed the jury to find Dietmeyer not guilty on counts 3 and 4, apparently because there was no direct evidence that he had shared in the loot. His counsel insist that because of this, and the fact that he was not shown to be present at the time of the robbery, the case failed as to him. This ignores the fact that there was evidence before the jury which, if believed, was sufficient to show him quite active in the preparations for the robbery. As shown above, his presence at the robbery was not essential. Further complaint is made on behalf of Dietmeyer of the refusal to give his instruction as to his abandonment of the enterprise and of the court’s instruction on this point. The request and the objections to the instructions given are based upon an erroneous conception of the crime charged and of the evidence adduced to establish it. Counsel argue that the joint enterprise in which he is shown to have been engaged had for its object the robbery of the mails on April 14 only, and did not contemplate the robbery which was committed on May 26. The evidence showed a design and plan to rob the mail coming into Staunton when the circumstances warranted. It was first designed to rob it on April 14, but “something went wrong” as one witness said, and the crime was postponed and actually committed May 26. Dietmeyer was shown to have been active in the preparations for robbing the mail upon its arrival at Staunton whenever it arrived and the surroundings were propitious. This broad and general plan included the robbery which was effected. He therefore aided and abetted in the commission of that robbery.
There is no substantial error in the record, and the judgment is affirmed.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
BUFFALO ARMS, Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Appellee.
No. 255, Docket 23331.
United States Court of Appeals Second Circuit.
Argued April 7, 1955.
Decided June 3, 1955.
Kenefiek, Bass, Letchworth, Baldy & Phillips, Buffalo, N. Y., for petitioner; Howard M. Holtzman, New York City, Francis V. Cole, Francis J. Offermann, Jr., and William A. Bain, Jr., Buffalo, N. Y., of counsel.
David P. Findling, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Frederick U. Reel, Atty., N. L. R. B., Washington, D. C., and Rosanna A. Blake, Atty., N. L. R. B., Silver Spring, Md., for respondent.
Arthur J. Goldberg, Gen. Counsel, Washington, D. C., Peter J. Crotty, Buffalo, N. Y., H. Howard Ostrin, Cooper, Ostrin & De Vareo, New York City, At-tys., for United Steelworkers of America, CIO, as amicus curiae.
Before L. HAND, SWAN and HINCKS, Circuit Judges.
SWAN, Circuit Judge.
This case is before us upon the petition of Buffalo Arms, Inc., to set aside an order of the National Labor Relations Board, and upon the Board’s request for enforcement of the order. The order directs Buffalo to cease and desist from refusing to bargain collectively with United Steelworkers of America, CIO, and to take specified affirmative action, including (a) bargaining collectively with the .Steelworkers union upon request, and (b) offering reinstatement with back pay, upon application by them, to all employees who went on strike on June 14, 1954 or thereafter in protest against the company’s refusal to bargain with the union. There is no dispute that Buffalo did refuse to bargain collectively with the Steelworkers union. The Company contends that its refusal was justified (1) because the consent election held on November 19, 1953, at which the Steelworkers union received a majority of the votes cast by employees in an appropriate unit of Buffalo’s employees, was invalid, and (2) because the Regional Director by his Supplemental Report set aside the election, and the agreement under which the election was held made final and conclusive his determination of any question relating to the election.
The facts relative to the election must be stated in some detail. Section 9 (c) of the National Labor Relations Act, 29 U.S. C.A. § 159(c), provides for two types of ■election. One is to be held after a hearing “conducted by an officer or employee ■of the regional office,” 29 U.S.C.A. § 159 (c) (1); the other is after “the waiving ■of hearings by stipulation for the purpose of a consent election in conformity with regulations and rules of decision of the Board.” 29 U.S.C.A. § 159(c) (4). The election of November 19, 1953 purported to be a consent election pursuant to an agreement therefor dated November 10, 1953 between Buffalo, the Steelworkers union and the International Association of Machinists, AFL, and approved by the Regional Director of the Board. This agreement waived a hearing, provided for an election by secret ballot under the supervision of the Regional Director, defined the eligible voters, specified that the Regional Director shall prepare a Notice of Election and that the employer, upon the request of and at a time specified by the Regional Director, will post such Notices, and stated:
“ * * * In the event more than one labor organization is signatory to this agreement, the choices on the ballot will appear in the wording indicated below and in the order enumerated below, reading from left to right on the ballot:
First. Neither
Second. United Steelworkers of America, CIO
Third. District No. 76, International Association of Machinists, AFL.”
The quoted provision as to choices to appear on the ballot was obviously applicable, since both the CIO union and the AFL union were signatories to the agreement. However, on November 12, 1953 the AFL union notified the Regional Director that it was withdrawing from the ballot. On the following day the Regional Director sent to Buffalo the Notice of Election to be posted by it. The notice made no mention of the AFL union and the sample ballot, which the notice incorporated, stated that the voters were to vote “Yes” or “No” on the question:
“Do you wish to be represented for purposes of collective bargaining by—
“United Steelworkers of America, C.I.O.?”
Accompanying the notice received by Buffalo was a copy of the consent election agreement bearing a red-pencil notation that the AFL union had withdrawn from the ballot. Buffalo promptly posted the Notice of Election. On November 16, 1953 Buffalo received from the Regional Director a letter, dated November 13, giving formal notice of the withdrawal from the ballot of the AFL union. Buffalo’s counsel immediately wrote the Regional Director that Buffalo, “reserving all its rights in the premises,” protests and objects “to the making of this substantial change in the terms and conditions of the election as agreed upon, to the manner of effecting the change, and to the failure to give due and adequate notice thereof to the employer as one of the parties to the agreement.” Upon receipt of this letter on November 17, thé Regional Director telephoned Buffalo’s counsel, but the parties are not in accord as to whether Buffalo was offered an opportunity to withdraw from the consent agreement. On November 18, Buffalo posted a notice urging the eligible voters to exercise their right to vote and reminding them that “a majority of the valid ballots cast will determine the result of the election.” The election was held on November 19. There were 435 eligible voters; 403 ballots were cast, of which one was invalid; of the 402 valid ballots, 243 were for the union and 159 against it.
After the result of the election was known, Buffalo wrote the Regional Director reiterating the objections stated in its letter of November 16 and asserting in addition that the withdrawal of the AFL union voided the agreement of November 10th and consequently the election could not have been held legally without a new agreement. On December 2, 1953 the Regional Director issued his report overruling Buffalo’s objections, and certified that the Steelworkers union is the exclusive representative of the employees in the unit for purposes of collective bargaining. Once again, by letter of December 7, Buffalo objected. The Regional Director considered this letter a request for reconsideration. He therefore reopened the case, reconsidered the matter and issued a Supplemental Report dated February 8,1954, in which he withdrew his Report of December 2, 1953, set aside the election, and recommended that the National Labor Relations Board revoke the certification of the CIO union included in that Report. The union filed exceptions to this Supplemental Report. On April 9,1954 the Board, two members dissenting, sustained the union’s exceptions and affirmed the Regional Director’s report of December 2, 1953. By letter dated April 20 Buffalo excepted to the Board’s order of April 9th, questioning the authority of the Board to issue the order. On June 8, 1954 the Board, the chairman dissenting, denied Buffalo’s “request for reconsideration”.
The complaint in the unfair labor practice proceeding was filed June 14, 1954. It charged that on December 14, 1953, and at all times thereafter Buffalo refused and still refuses to bargain collectively with the union. The complaint also charged that on June 14, 1954 Buffalo’s employees went on strike, and that the strike “was caused and prolonged” by Buffalo’s refusal to bargain collectively with the union. A hearing was conducted on July 12, 1954 before a trial examiner who issued a report on September 23, 1954 in which he stated that the issues involved had been decided by the Board’s order of April 9, 1954 and he did not deem himself authorized to alter or depart from such decision. Accordingly he found that the Steelworkers union had been since December 2, 1953 the certified exclusive bargaining representative of the employees in the specified unit; that Buffalo refused on December 14, 1953 to bargain with the union, and has continued such refusal in violation of section 8(a) (5) of the Act, 29 U.S.C.A. § 158(a) (5); and that the strike of June 14th was caused and prolonged by the employer’s unlawful refusal to bargain. Buffalo filed exceptions to the report, which the Board overruled. It adopted the findings,, conclusions and recommendations of the trial examiner and issued the order now before us for review.
We turn now to the Company’s two contentions asserted as justification for its refusal to bargain. My brothers are of opinion that it is unnecessary to decide whether the withdrawal of the AFL union invalidated the election. What is said below on that subject expresses only my personal views. We are all agreed that the Regional Director’s Supplemental Report setting aside the election was a final and conclusive determination which the Board should not have overruled.
The Board’s Rules make no provision for the withdrawal of a party from a consent election agreement. In its order of April 9, 1954 affirming the Regional Director’s Report of December 2, 1953 the Board held that Buffalo had ratified and consented to the withdrawal of the AFL union by posting the election notice and affirmatively encouraging the employees to vote in the election. I cannot agree that posting the notice was a consent to the truncated election. Buffalo would have exposed itself to the danger of being charged with an unfair labor practice for failure to participate in the election had it not posted the notice furnished by the Regional Director for that purpose. More can be said in favor of finding ratification and consent to the changed conditions in Buffalo’s notice of November 18 urging the employees to vote. However, before this was posted, Buffalo had protested to the Regional Director, “reserving all its rights in the premises”. The' situation seems somewhat analogous to that where a defendant seasonably protests the jurisdiction of the court but proceeds to a determination of the merits, expressly reserving the jurisdictional question. But however that may be, in my opinion the only valid way of waiving a hearing for the purpose of a consent election is “by stipulation”. 29 U.S.C.A. § 159(c) (4). The very purpose of this provision mufet be to avoid disputes, which are likely to result in delay and possible litigation, as to whether conduct not evidenced by formal stipulation shall be deemed a waiver. If one party to a three-party stipulation for a consent election withdraws, I believe that a new .agreement must be signed by the other two before a valid consent election can be held. This was the view taken by the Regional Director in his Supplemental Report of February 8, 1954. I think he was right. Buffalo might well have thought neither union would win if both appeared on the ballot. This had happened a year before in the September 17, 1952 election, and the run-off election of September 29th. With this recent election history in mind it may well be doubted whether the employer would have stipulated with the Steelworkers union alone for the consent election in November 1953. The Board’s ruling treats the employer as if it had made a stipulation it never did make.
Furthermore, I think that the sample ballot must have created an atmosphere of confusion among the employees. While there is no evidence in the record on the subject, it can scarcely be doubted that the employees, or at least some of them, expected both unions to be candidates at the election, as they had been in the 1952 election; and the employees were given no intimation why the AFL union was omitted from the ballot. In Matter of General Shoe Corporation, 77 N.L.R.B. 124, 127 the Board stated:
“In election proceedings, it is the Board’s function to provide a laboratory in which an experiment may be conducted, under conditions as nearly ideal as possible, to determine the uninhibited desires of the employees. It is our duty to establish those conditions ; it is also our duty to determine whether they have been ful- • filled.”
This was approved in Kearney & Trecker Corp. v. N.L.R.B., 7 Cir., 210 F.2d 852, 858. I do not think ideal “laboratory” conditions were established for the November 19th election.
We pass now to Buffalo's second contention, namely, that the Board lacked .authority to reverse the Regional Director’s determination in his Supplemental Report of February 8, 1954 to set aside the election. The consent agreement of November 10th provided in part as follows:
“» * * gaj(j election shall be held in accordance with the National Labor Relations Act, the Board’s Rules and Regulations, and the customary procedures and policies of the Board, provided that the determination of the Regional Director shall be final and binding upon any -question, including questions as to the eligibility of voters, raised by any party hereto relating in any manner to the election * * (Italics added.)
The Rules and Regulations of the Board •also recognize the finality of the Regional Director’s determinations. Both the ‘Board and the courts have recognized that the determination of the Regional Director should ordinarily be accepted as final. In Semi-Steel Casting Co. v. N.L. R.B., 8 Cir., 160 F.2d 388, 391, the court -said:
"On review the Board accepts the Regional Director’s decision on all questions pertaining to the election, unless shown to be arbitrary or capricious or not in conformity with the policies of the Board and the requirements of the Act.”
In the case at bar the Board held that the final decision of the Regional Director was “without basis”. It did not hold that his decision was arbitrary. There was no ground for so holding, in our opinion. Nor do we think the Board rightly could have held that his decision was in conflict “with the policies of the Board and the requirements of the Act.” The Regional Director was confronted with a close question, for the solution of which there was no clear statutory or decisional guide. He thought it fairer to set aside' the election and begin anew. Had the Steelworkers union accepted his decision as final, in accordance with its agreement, unquestionably a valid election — with or without the employer’s consent — could have been held with very little delay. The union still contends that the consent agreement was binding on Buffalo, despite the withdrawal of the AFL union, but by the same token it was binding on the Steel Workers .union, and it was precluded from a review of the Regional Director’s decision. The Board gave no effect to the agreement of finality and entertained a review on the merits. Even if the Board was right on the merits, as my brothers seem to think, we hold that it erred in failing to give recognition to the contract provision which made the Regional Director the final arbiter of questions relating to the election. Such a provision is highly salutary and should be favored. It tends to avoid controversies and delay in representation proceedings. To give it no effect, as did the Board, will strongly tend to remove all incentive to stipulate for consent elections. We conclude therefore that the action of the Regional Director in setting aside the election should have been sustained with the result that the unfair labor practice complained of was not proved.
The petition to set aside the order is granted.
. Sec. 102.54 of the Board’s Rules and Regulations provides for a consent election pursuant to such an agreement.
. The union’s charge on which the complaint was based had been filed on December 17, 1953, on which date the Regional Director had before him Buffalo’s motion to reconsider his Report of December 2, 1953.
. Finsilver, Still & Moss, Inc., v. Goldberg Maas & Co., Inc., 253 N.Y. 382, 391, 171 N.B. 579, 69 A.L.K. 809; Hassler, Inc., v. Shaw, 271 U.S. 195, 200, 46 S.Ct. 479, 70 L.Ed. 900.
. Section 102-54 (a) provides in pertinent part:
“The method of conducting such election shall be consistent with the method followed by the regional director in conducting elections pursuant to sections 102.C1 and 102.62 except that the rulings and determinations by the regional director of the results thereof shall be final, * *
. See Semi-Steel Casting Co. v. N. L. R. B., 8 Cir., 160 F.2d 388, certiorari denied 322 U.S. 758, 68 S.Ct 57, 92 L.Ed. 344; N. L. R. B. v. Capitol Greyhound Lines, 6 Cir., 140 F.2d 754, 758, certiorari denied 332 U.S. 763, 64 S.Ct. 1285, 88 L.Ed. 1590; N. L. R. B. v. General Armature & Mfg. Co., 3 Cir., 192 F.2d 316, 317, certiorari denied 343 U.S. 957, 72 S.Ct. 1052, 90 L.Ed. 1357; N. L. R. B. v. Carlton Wood Products Co., 9 Cir., 201 F.2d 863; 860, 36 A.L.R.2d 1170; N. L. R. B. v. Voltney Felt Mills, Inc., 6 Cir., 210 F.2d 559.
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_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.
UNION CARBIDE CORPORATION, Petitioner, v. U.S. CUTTING SERVICE, INC., et al., Respondents. In re INDUSTRIAL GAS ANTITRUST LITIGATION. Appeal of UNION CARBIDE CORPORATION. UNION CARBIDE CORPORATION, Petitioner, v. The Honorable Susan GETZENDANNER, Respondent.
Nos. 85-2926, 85-2965 and 85-3039.
United States Court of Appeals, Seventh Circuit.
Submitted in Nos. 85-2965 and 85-3039 Dec. 9, 1985.
Argued in No. 85-2926 Dec. 17, 1985.
Decided Jan. 28, 1986.
H. Blair White, Sidley & Austin, Chicago, Ill., for petitioner.
Michael J. Freed, Much, Shelist, Freed, etc. Chicago, Ill., for respondents.
Before BAUER, POSNER, and FLAUM, Circuit Judges.
POSNER, Circuit Judge.
We have consolidated for decision two interlocutory appeals (alternatively pleaded as petitions for mandamus, see 28 U.S.C. § 1651) filed by Union Carbide Corporation, a defendant in a large antitrust class action (now in the discovery stage in the district court) brought on behalf of buyers of industrial gases. In the first (Nos. 85-2965 and 85-3039), Union Carbide is trying to appeal from an order by Judge Getzendanner refusing to allow it to interview persons employed by members of the plaintiff class. Because the class is so large (it has 172,000 members), the order prevents Union Carbide from interviewing many potential witnesses — notably, former employees of Union Carbide now employed elsewhere. About the merits of Judge Getzendanner’s order we shall have nothing to say. We do not think the order is appealable or mandamus a proper substitute for an appeal. The general and very salutary rule is that discovery orders are not appealable until the end of the case." See, e.g., Marrese v. American Academy of Orthopaedic Surgeons, 726 F.2d 1150, 1157-58 (7th Cir.1984) (en banc), rev’d on other grounds, — U.S.-, 105 S.Ct. 1327, 84 L.Ed.2d 274 (1985); 8 Wright & Miller, Federal Practice and Procedure § 2006 (1970). There is a safety value: if the party disobeys the order and is punished for contempt or by the entry of final judgment or by any other sanction that has the character of a final decision, he can appeal from that. United States v. Ryan, 402 U.S. 530, 532-33, 91 S.Ct. 1580, 1581-83, 29 L.Ed.2d 85 (1971); Marrese v. American Academy of Orthopaedic Surgeons, supra, 726 F.2d at 1157. But Union Carbide has not yet attempted to avail itself of this route.
It argues however that this case is special because it involves a question under the First Amendment. It is true that in free-speech cases interlocutory appeals sometimes are more freely allowed, and writs of mandamus sometimes more freely issued, than in other types of case, especially where the interlocutory order can be characterized as imposing a “prior restraint” on speech or the press. See, e.g., Chase v. Robson, 435 F.2d 1059, 1062 (7th Cir.1970) (per curiam); In re San Juan Star Co., 662 F.2d 108, 113 (1st Cir. 1981). It is also true that an order limiting communication between named plaintiffs (and their lawyers) and members of the plaintiff class was invalidated on First Amendment grounds in Gulf Oil Co. v. Bernard, 452 U.S. 89, 101 S.Ct. 2193, 68 L.Éd.2d 693 (1981). The present case is different, however. Without meaning to prejudge the merits of Union Carbide’s constitutional challenge, we note that the limitation here is on communications with an adversary, that such a limitation grows out of the established principle that a lawyer for one party is forbidden to communicate directly with the opposing party, and that Union Carbide is seeking not to communicate its own views but merely to question witnesses. Cf. Resnick v. American Dental Ass’n, 95 F.R.D. 372, 376-77 (N;D.Ill. 1982). The threat to free speech is not so palpable as to warrant a departure from the usual principle of finality that governs federal appeals. Even more clearly, Union Carbide’s nonconstitutional challenge to the order (that the judge misinterpreted the provision of the Code of Professional Responsibility that forbids lawyers to contact an opposing party directly) cannot be appealed at this time.
Union Carbide’s other challenge is to Judge Getzendanner’s denial of its motion that she recuse herself from the case. This challenge fits within an exception to the final-judgment rule. A judge's refusal to recuse himself in the face of a substantial challenge casts a shadow not only over the individual litigation but over the integrity of the federal judicial process as a whole. The shadow should be dispelled at the earliest possible opportunity by an authoritative judgment either upholding or rejecting the challenge. In recognition of this point we have been liberal in allowing the use of the extraordinary writ of mandamus to review orders denying motions to disqualify. See, e.g., Pepsico, Inc. v. McMillen, 764 F.2d 458, 460 (7th Cir.1985); SCA Services, Inc. v. Morgan, 557 F.2d 110,117-18 (7th Cir.1977) (per curiam); see also In re IBM Corp., 618 F.2d 923, 926-27 (2d Cir.1980); In re United States, 666 F.2d 690, 694 (1st Cir.1981); 9 Moore’s Federal Practice ¶ 110.13[10] (2d ed. 1985).
Of course in frivolous and even routine cases in which a party challenges the judge’s refusal to recuse himself, mandamus will be denied — with sanctions, if the petition for mandamus is frivolous. But where a serious question is raised, we shall interpret generously our power to issue the writ, in order that we may lay the question to rest at the earliest possible time. . We therefore need not decide the difficult question whether a ruling on disqualification can ever be certified for an immediate appeal under 28 U.S.C. § 1292(b), as Judge Getzendanner attempted to do here.
There is another point. We have held, in part because of the importance “of preventing injury to the public perception of the judicial system before it has a chance to occur,” that mandamus is the only method of correcting a judge’s erroneous refusal to recuse himself under 28 U.S.C. § 455(a), which requires a judge to recuse himself “in any proceeding in which his impartiality might reasonably be questioned.” United States v. Balistrieri, 779 F.2d 1191, 1205 (7th Cir.1985). As it happens, one of Union Carbide’s grounds for recusal of Judge Getzendanner is based on section 455(a); and it is so closely related to the company’s section 455(b) ground that both should be decided together, which can only be done in this mandamus proceeding.
The recusal issue, unique in our experience, arises as follows. The suit was filed in July 1980 and a few months later assigned to Judge Getzendanner, who two and a half years later, in February 1983, married a man whose self-managed retirement account happened to contain some $100,000 worth of stock of IBM and Kodak. The judge had no reason to think that her marriage would have any effect on the propriety of her continuing to preside over the case. Neither IBM nor Kodak were named plaintiffs; nor would it have seemed likely to a person without a technical background — a person who did not know for example that liquid nitrogen is used by both companies for supercooling in various technical processes — that either company would be a member of the plaintiff class, limited as it is to buyers of oxygen, nitrogen, and argon. There was at the time no list of class members. In May 1984 and then again in May 1985 Judge Getzendanner in her required annual financial disclosure statements (28 U.S.C. App. §§ 301 et seq.) disclosed her husband’s stock interests. Not until July 1985 did Union Carbide move the judge to recuse herself, pointing out that IBM and Kodak had. in fact bought industrial gases from the defendants during the period covered by the complaint. The motion was based on 28 U.S.C. § 455(b), which provides (so far as pertinent here) that a federal judge “shall disqualify himself ... [where] (4) He knows that he ... or his spouse ... has a financial interest ... in a party to the proceeding.” The statute defines “financial interest” as “ownership of a legal or equitable interest, however small.” 28 U.S.C. § 455(d)(4).
Judge Getzendanner immediately ceased ruling on any motions in the case while the parties briefed the issue whether the statute would be violated if her husband sold the stock in his retirement account. (All concerned agree that an unnamed class member is a “party” under the statute.) During this period all motions were referred to a magistrate or another judge. After the issue was briefed Judge Getzendanner held that she could properly resume control of the case if her husband sold the stock. He did, incurring a brokerage fee of $900, but no capital gains tax, because the retirement account is tax-free; and he invested the proceeds in a money market fund. Union Carbide argues that the sale did not cure the mandatory disqualification of section 455(b) and, if it did, still Judge Getzendanner’s continuing to preside in the case violates section 455(a).
What makes the case unusual is the un-
likely confluence of a class action, a judge’s marrying pendente lite, and a tax-free retirement account. If Eastman Kodak and IBM had been named plaintiffs, Judge Getzendanner would have known in February 1983 (when she got married), or at the latest in May 1984 when she filed her financial disclosure form, that she had a financial interest in a party. If she had owned the stock when she became a judge, the parties might have discovered early on that she had an interest in a potential class member. And if her husband had not owned the stock in a tax-free retirement account he probably would not have been willing to sell it and incur a capital gains tax (assuming the stock had appreciated since he had acquired it), in which event Judge Getzendanner would unquestionably have had to recuse herself. We must decide whether this most unusual case is within the purview of either subsection (a) or subsection (b) of section 455. We start with (b).
The purpose of (b) is to establish an absolute prohibition against a judge’s knowingly presiding in a case in which he has a financial interest, either in his own or a spouse’s (or minor child’s) name. Before the statute was passed judges did not recuse themselves in such cases unless the interest was so large that a reasonable person might think it could influence the judge’s decision. This standard was too nebulous — not least from the judge’s standpoint — and Congress replaced it by a flat prohibition. Although the prohibition results in recusal in cases where the interest is too small to sway even the most mercenary judge, occasional silly results may be an acceptable price to pay for a rule that both is straightforward in application and spares the judge from having to make decisions under an uncertain standard apt to be misunderstood. See H.R.Rep. No. 1453, 93d Cong., 2d Sess. 2 (1974).
It is not apparent however whether the statute covers the situation where the judge had a financial interest in a party, without knowing it; divested himself of the interest as soon as he discovered it; and made no rulings between the date of discovery and the date of divestment. When Judge Getzendanner discovered in July 1985 that she had a financial interest in a “party” she immediately suspended her involvement in the case. Although the case was not formally reassigned to another judge, any matters requiring a judicial ruling were referred to other judges; it was as if she had recused herself. Then however her husband sold the stock and she resumed control of the case. It was as if she had been reassigned to it. And when reassigned she no longer had a financial interest in it. Since the statute forbids only the knowing possession of a financial interest, since Judge Getzendanner relinquished control of the case as soon as she found out about the financial interest, and since she did not resume control until the financial interest was eliminated, at no time was she in literal violation of the statute.
We must of course consider the purpose as well as the bare words of the statute. But the purpose as we have said is just to make sure that judges do not sit in cases in which they have a financial interest, however small. Judge Getzendanner has no financial interest in this case. If she were to rule in favor of the plaintiffs it could not put a nickel in her pocket, because neither she nor her husband own securities of any member of the plaintiff class. Before she discovered she had a financial interest, she could have had no incentive to favor the plaintiffs; when she knew she had such an interest, she made no rulings in the case; now, when she has no interest, she cannot enrich herself by favoring the plaintiffs. The statutory purpose would not be served by forcing her to recuse herself. It is no surprise that the legislative history contains no indication that Congress would have wanted a judge to recuse himself in such a case.
To hold that Judge Getzendanner is violating section 455(b) might have the practical effect — as candidly acknowledged by Union Carbide’s able counsel — of disqualifying from presiding over class actions a large fraction of the federal judges in the United States. Many, probably most, federal judges (though, as it happens, no members of this panel) own, either directly or through spouse or children, securities in individual corporations (section 455(b) does not apply to ownership of shares of mutual funds, see 28 U.S.C. § 455(d)(4)©). In many class actions the full membership of the class is unknown until the litigation is far advanced. Prudence might therefore require, if Union Carbide’s position on recusal of Judge Getzendanner were sustained, that all judges owning securities of individual companies recuse themselves from any class action in which the plaintiff class included companies. Class action judges would be drawn from the subset of judges that happen not to own such securities. Such broad-scale disqualification is an unlikely purpose to impute to Congress in passing section 455(b). Admittedly, it may happen anyway, when a judge or spouse chooses not to sell stock (because of capital gains tax) upon discovering that he has a financial interest in a class member.
In matters of judicial ethics we are bound to give some weight to the view of the committee- of judges that the Judicial Conference of the United States has established to advise federal judges on ethical questions. The Advisory Committee on Codes of Conduct of the Judicial Conference of the United States wrote to Judge Getzendanner advising her that her husband’s sale of the stock had removed her disqualification. The Committee was not interpreting the statute as such but it was interpreting the identical language as it appears in the Code of Judicial Conduct for United States Judges. See Canon 3C(l)(c). Although the Committee did not issue a formal advisory opinion, this was unnecessary, since all it was doing was applying to Judge Getzendanner’s situation its previous Advisory Opinion No. 69 (Oct. 15, 1981), in which it had concluded that disposing of a disqualifying interest when it surfaces after the judge has been sitting on the case for some time would remove the disqualification and permit the judge to continue to sit.
We conclude that section 455(b) does not require Judge Getzendanner to recuse herself in this case. In so holding, we do not mean to endorse sale as a cure for disqualification in all cases. Section 455(b) is only one node in the network of statutory and nonstatutory ethical principles that control the conduct of federal judges. All we do by holding section 455(b) inapplicable is bounce the recusal issue into other and more flexible legal and ethical provisions, such as 455(a), which requires recusal where the judge’s impartiality could reasonably be questioned; and to that subsection let us now turn. Here the issue is whether “an objective, disinterested observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt that justice would be done in the case.” Pepsico, Inc. v. McMillen, supra, 764 F.2d at 460. Union Carbide’s argument is that by having to pay $900 in brokerage fees and giving up potential future appreciation in the value of the stocks, Judge Getzendanner might be sore at Union Carbide; or, at least, that a reasonable person might think she would be sore, for Union Carbide does not suggest that she really is so petty as to want to retaliate against it for exercising its legal right to seek recusal of a judge on colorable grounds.
Union Carbide has failed to present evidence that would enable the financial impact on Judge Getzendanner and her husband of the sale of the stock even to be evaluated. Setting the matter of the brokerage fee to one side for a moment, all Union Carbide has shown is that in the five weeks between the sale of the stock and the filing of Union Carbide’s brief in this court the value of the stock increased by about 3 percent, but that because Judge Getzendanner’s husband invested the proceeds of the sale in a money market fund the proceeds did not appreciate. The comparison is unsound. If Judge Getzendanner’s husband had wanted to remain in the stock market he would have invested the proceeds in a mutual fund, and the proper comparison would then be between the mutual fund's performance and that of the stocks that were sold. It is true that the usual mutual fund holds a diversified portfolio of securities, and therefore the value of the fund’s shares fluctuates less than that of individual securities; so switching to a mutual fund might have sacrificed some appreciation if the two stocks that were sold from the retirement account turned out to be high-flyers. But the record contains no comparison between the performance of the two stocks and the performance of any mutual fund or of some composite index of mutual funds. It is possible of course that some way down the track in this protracted litigation IBM or Kodak will do splendidly and someone will think that maybe Judge Getzendanner is gnashing her teeth because her husband had sold that stock under pressure, as it were, from Union Carbide, and is spoiling for revenge. But it is one thing to assume that judges are human beings with the usual human emotions and another to attribute to them a malevolent, a calculating, vindictiveness. As a matter of fact, that Judge Getzendanner’s husband put the proceeds of the sale of the stock into the money market rather than into a mutual fund suggests that he may have wanted to get out of the stock market anyway, in which event the cost of divestiture to him may have been zero.
The $900 brokerage fee is too small to warrant a reasonable person’s concluding that Judge Getzendanner may be harboring a grudge against Union Carbide. Remember that for these purposes the reasonable person is assumed to know all the publicly available facts bearing on the issue of recusal; to know that a federal district judge in 1985 had a salary of $78,700 a year, that Judge Getzendanner’s husband is a partner in one of the largest law firms in Chicago, that $900 is less than one percent of the proceeds of the sale of the stock, and that the fee would have been incurred anyway as soon as the husband decided to turn over the stock in the retirement account, as he might have done at any time. Here we point out that not only was the account not diversified (and Judge Getzendanner’s financial disclosure statements suggest that the couple’s other assets do not make their total holdings well diversified), but most financial planners believe that tax-free assets should be invested in interest-paying securities rather than in common stock. Part of the gain from owning common stock is the favorable tax treatment of capital gains compared to ordinary income (including interest); and to maximize that gain requires investing one's taxable rather than tax-free assets in stocks. We are not trying to provide financial advice but merely pointing out how entirely speculative is any suggestion that the $900 was a cost actually incurred because of the motion to disqualify Judge Getzendanner.
If Judge Getzendanner’s husband had had to pay capital gains tax the appearance of impropriety from her continuing to preside in the case would be greater; and likewise if she had had reason to know before July 1985 that she had a financial interest in a party to the lawsuit. But as we said before, this is an extremely unusual case and we do not think a reasonable person would conclude that Judge Getzendanner’s continuing to preside would impair Union Carbide’s right to trial before an impartial judge. There is not the slightest indication that she has in fact any partiality in this matter.
It should not go unmentioned that Union Carbide may have waited too long to move to recuse Judge Getzendanner. Although her husband’s ownership of shares of stock in IBM and Kodak was a matter of public record in May 1984, Union Carbide waited till July 1985 to file the motion. Its counsel advises us that he was reluctant to move to recuse the judge and did so only at his client’s insistence. The client evidently was distressed by some rulings made by Judge Getzendanner in the interim. This is not a good reason for delay, at least where the ground for disqualification is merely an appearance of partiality. See, e.g., Potashnick v. Port City Construction Co., 609 F.2d 1101, 1115 (5th Cir.1980); Delesdemier v. Porterie, 666 F.2d 116, 121 n. 3 (5th Cir.1982); cf. United States v. Murphy, supra, 768 F.2d 1518, 1539 (7th Cir.1985). Although SCA Services, Inc. v. Morgan, supra, 557 F.2d at 117, holds that there are no time limits on motions to disqualify under 28 U.S.C. § 455, this position has been uniformly rejected in the other circuits. See United States v. Murphy, supra, 768 F.2d at 1539, and cases cited there. Murphy questions it and Balistrieri, cited earlier, undermines it by stressing the importance of promptly raising any ground for questioning the judge’s impartiality. But in view of our other grounds for rejecting Union Carbide’s argument for recusal under section 455(a), we have no need to decide whether this holding of Morgan should be reconsidered.
The appeals are dismissed; treating them as petitions for mandamus, we deny them. No costs in this court.
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_respondent
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136
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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.
CORNELIUS, ACTING DIRECTOR, OFFICE OF PERSONNEL MANAGEMENT v. NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., et al.
No. 84-312.
Argued February 19, 1985
Decided July 2, 1985
O’CONNOR, J., delivered the opinion of the Court, in which BurgeR, C. J., and White and Rehnquist, JJ., joined. Blackmun, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 813. Stevens, J., filed a dissenting opinion, post, p. 833. Marshall, J., took no part in the consideration or decision of the case. Powell, J., took no part in the decision of the case.
Solicitor General Lee argued the cause for petitioner. With him on the briefs were Acting Assistant Attorney General Willard, Deputy Solicitor General Geller, Carolyn F. Corwin, Paul Blankenstein, and Joseph A. Morris.
Charles Stephen Ralston argued the cause for respondents. With him on the brief were Julius LeVonne Chambers, James M. Nabrit III, Stuart J. Land, Leonard H. Becker, and Boris Feldman.
Joseph B. Scott and Michael J. Kator filed a brief for the United Black Fund of America et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of New York by Robert Abrams, Attorney General, Robert Hermann, Solicitor General, and Daniel L. Kurtz, Pamela A. Mann, and Jill Laurie Goodman, Assistant Attorneys General; for the American Civil Liberties Union Foundation by E. Richard Larson, Burt Neubome, Joseph M. Hassett, and Patricia A. Brannan; for the American Jewish Committee et al. by Samuel Rabinove and Richard T. Foltin; and for the National Committee for Responsive Philanthropy, Independent Sector, et al. by David C. Vladeck, Alan B. Morrison, John Cary Sims, and Adam Yarmolinsky.
Dara Klassel, Eve W. Paul, and Roger K. Evans filed a brief for the Planned Parenthood Federation of America, Inc., as amicus curiae.
Justice O’Connor
delivered the opinion of the Court.
This case requires us to decide whether the Federal Government violates the First Amendment when it excludes legal defense and political advocacy organizations from participation in the Combined Federal Campaign (CFC or Campaign), a charity drive aimed at federal employees. The United States District Court for the District of Columbia held that the respondent organizations could not be excluded from the CFC, and the Court of Appeals affirmed. 234 U. S. App. D. C. 148, 727 F. 2d 1247 (1984). We granted certiorari, 469 U. S. 929 (1984), and we now reverse.
I — i
The CFC is an annual charitable fundraising drive conducted in the federal workplace during working hours largely through the voluntary efforts of federal employees. At all times relevant to this litigation, participating organizations confined their fundraising activities to a 30-word statement submitted by them for inclusion in the Campaign literature. Volunteer federal employees distribute to their coworkers literature describing the Campaign and the participants along with pledge cards. 5 CFR §§ 950.521(c) and (e) (1983). Contributions may take the form of either a payroll deduction or a lump-sum payment made to a designated agency or to the general Campaign fund. §950.523. Un-designated contributions are distributed on the local level by a private umbrella organization to certain participating organizations. § 950.509(c)(5). Designated funds are paid directly to the specified recipient. Through the CFC, the Government employees contribute in excess of $100 million to charitable organizations each year. Brief for Petitioner 3.
The CFC is a relatively recent development. Prior to 1957, charitable solicitation in the federal workplace occurred on an ad hoc basis. Federal managers received requests from dozens of organizations seeking endorsements and the right to solicit contributions from federal employees at their worksites. U. S. Civil Service Commission, Manual on Fund-Raising Within the Federal Service for Voluntary Health and Welfare Agencies §1.1 (1977) (Manual on Fund-Raising). In facilities where solicitation was permitted, weekly campaigns were commonplace. Executive Orders 12353 and 12404 As They Regulate the Combined Federal Campaign (Part 1), Hearing before the House Committee on Government Operations, 98th Cong., 1st Sess., 67-68 (1983). Because no systemwide regulations were in place to provide for orderly procedure, fundraising frequently consisted of passing an empty coffee can from employee to employee. Id., at 68. Eventually, the increasing number of entities seeking access to federal buildings and the multiplicity of appeals disrupted the work environment and confused employees who were unfamiliar with the groups seeking contributions. Ibid.
In 1957, President Eisenhower established the forerunner of the Combined Federal Campaign to bring order to the solicitation process and to ensure truly voluntary giving by federal employees. Exec. Order No. 10728, 3 CFR 387 (1954-1958 Comp.). The Order established an advisory committee and set forth general procedures and standards for a uniform fundraising program. It permitted no more than three charitable solicitations annually and established a system requiring prior approval by a committee on fundraising for participation by “voluntary health and welfare” agencies. Id., §§ 1(c) and 3(d). One of the principal goals of the plan was to minimize the disturbance of federal employees while on duty. Id., § 1(d).
Four years after this initial effort, President Kennedy abolished the advisory committee and ordered the Chairman of the Civil Service Commission to oversee fundraising by “national voluntary health and welfare agencies and such other national voluntary agencies as may be appropriate” in the solicitation of contributions from all federal employees. Exec. Order No. 10927, 3 CFR 454 (1959-1963 Comp.). From 1963 until 1982, the CFC was implemented by guidelines set forth in the Civil Service Commission’s Manual on Fund-Raising. Only tax-exempt, nonprofit charitable organizations that were supported by contributions from the public and that provided direct health and welfare services to individuals were eligible to participate in the CFC. Manual on Fund-Raising §5.21 (1977).
Respondents in this case are the NAACP Legal Defense and Educational Fund, Inc., the Sierra Club Legal Defense Fund, the Puerto Rican Legal Defense and Education Fund, the Federally Employed Women Legal Defense and Education Fund, the Indian Law Resource Center, the Lawyers’ Committee for Civil Rights under Law, and the Natural Resources Defense Council. Each of the respondents attempts to influence public policy through one or more of the following means: political activity, advocacy, lobbying, or litigation on behalf of others. In 1980, two of the respondents — the NAACP Legal Defense and Educational Fund, Inc., and the Puerto Rican Legal Defense and Education Fund (the Legal Defense Funds) — joined by the NAACP Special Contribution Fund, for the first time sought to participate in the CFC. The Office of Personnel Management (OPM), which in 1978 had assumed the duties of the Civil Service Commission, refused admission to the Legal Defense Funds. This action led to a series of three lawsuits, the third of which is before us today.
In the first action the Legal Defense Funds challenged the “direct services” requirement on the grounds that it violated the First Amendment and the equal protection component of the Fifth Amendment. NAACP Legal Defense & Educational Fund, Inc. v. Campbell, 504 F. Supp. 1365 (DC 1981) (NAACP I). The District Court did not reach the equal protection challenge, because it found that the “direct services” requirement as formulated in the Manual on Fund-Raising was too vague to satisfy the strict standards of specificity required by the First Amendment. Id., at 1368. The Government did not appeal the District Court’s decision, and the plaintiffs, along with other legal defense funds, were allowed to participate in the 1982 and 1983 Campaigns and receive funds designated for their use by federal employees.
In the second proceeding, the Legal Defense Funds challenged the decision of the Director of OPM to authorize local federal coordinating groups to determine what share, if any, of the undesignated funds to allocate to organizations classified as national service associations. NAACP Legal Defense & Educational Fund, Inc. v. Devine, 560 F. Supp. 667, 672 (DC 1983) (NAACP II). The plaintiff legal defense funds categorized themselves as “national service associations,” a category that OPM had defined as agencies having a domestic welfare service function which includes direct services to meet basic human welfare needs. Manual on Fund-Raising § 4.2(e). The District Court rejected claims that OPM’s decision, which essentially permitted local coordinating groups to choose not to allocate undesignated funds to the Legal Defense Funds, violated their rights under the Due Process Clause and the First Amendment. 560 F. Supp., at 676. The court found that local coordinating groups must have flexibility to distribute funds in accordance with the intent of donors and the benefit to the local community. Due process was satisfied by the participation of national service associations in the process by which the local groups determined how to distribute funds. Id., at 675. The court determined that the exclusion was necessary to protect the First Amendment rights of donors not to contribute to organizations whose purposes were inconsistent with their beliefs and to serve the Government’s interest in ensuring that as much money as possible was received through the Campaign. Id., at 675-676. The Legal Defense Funds did not appeal the decision.
In response to the District Court’s decision in NAACP I, President Reagan took several steps to restore the CFC to what he determined to be its original purpose. In 1982, the President issued Executive Order No.-12353, 3 CFR 139 (1983), to replace the 1961 Executive Order which had established the CFC. The new Order retained the original limitation to “national voluntary health and welfare agencies and such other national voluntary agencies as may be appropriate,” and delegated to the Director of the Office of Personnel Management the authority to establish criteria for determining appropriateness. Shortly thereafter, the President amended Executive Order No. 12353 to specify the purposes of the CFC and to identify groups whose participation would be consistent with those purposes. Exec. Order No. 12404, 3 CFR 151 (1984). The CFC was designed to lessen the Government’s burden in meeting human health and welfare needs by providing a convenient, nondisruptive channel for federal employees to contribute to nonpartisan agencies that directly serve those needs. Id., § 1(b), amending Exec. Order No. 12353, § 2(b)(1). The Order limited participation to “voluntary, charitable, health and welfare agencies that provide or support direct health and welfare services to individuals or their families,” ibid., amending Exec. Order No. 12353, § 2(b)(2), and specifically excluded those “[a]gencies that seek to influence the outcomes of elections or the determination of public policy through political activity or advocacy, lobbying, or litigation on behalf of parties other than themselves.” Ibid., amending Exec. Order No. 12353, §2(b)(3).
Respondents brought this action challenging their threatened exclusion under the new Executive Order. They argued that the denial of the right to seek designated funds violates their First Amendment right to solicit charitable contributions and that the denial of the right to participate in undesignated funds violates their rights under the equal protection component of the Fifth Amendment. Respondents also contended that the “direct services” requirement in § 1(b) of the Executive Order suffered from the same vagueness problems as the requirement struck down in NAACP I. The District Court dismissed the vagueness challenge and the equal protection claim on ripeness grounds. NAACP Legal Defense & Educational Fund, Inc. v. Devine, 567 F. Supp. 401 (DC 1983) (NAACP III). Those rulings were not appealed and are not before us. The District Court also held that respondents’ exclusion from the designated contribution portion of the CFC was unconstitutional. The court reasoned that the CFC was a “limited public forum” and that respondents’ exclusion was content based. Id., at 407. Finding that the regulation was not narrowly drawn to support a compelling governmental interest, the District Court granted summary judgment to respondents and enjoined the denial of respondents’ pending or future applications to participate in the solicitation of designated contributions. Id., at 410.
The judgment was affirmed by a divided panel of the United States Court of Appeals for the District of Columbia Circuit. NAACP Legal Defense & Educational Fund, Inc. v. Devine, 234 U. S. App. D. C. 148, 727 F. 2d 1247 (1984). The majority did not decide whether the CFC was a limited public forum or a nonpublic forum under Perry Education Assn. v. Perry Local Educators’ Assn., 460 U. S. 37 (1983), because in its view the Government restrictions were not reasonable and therefore failed even the least exacting scrutiny. The dissent disagreed with both the analysis used and the result reached by the majority. 234 U. S. App. D. C., at 169, 727 F. 2d, at 1268 (Starr, J., dissenting). The dissent defined the relevant forum as the federal workplace and found that it was a nonpublic forum under our cases. Based on this characterization, the dissent argued that the Government must merely provide a rational basis for the exclusion, and that this standard was met here. An equally divided court denied the Government’s request for rehearing en banc. App. to Pet. for Cert. 80a.
I — I hH
The issue presented is whether respondents have a First Amendment right to solicit contributions that was violated by their exclusion from the CFC. To resolve this issue we must first decide whether solicitation in the context of the CFC is speech protected by the First Amendment, for, if it is not, we need go no further. Assuming that such solicitation is protected speech, we must identify the nature of the forum, because the extent to which the Government may limit access depends on whether the forum is public or nonpublic. Finally, we must assess whether the justifications for exclusion from the relevant forum satisfy the requisite standard. Applying this analysis, we find that respondents’ solicitation is protected speech occurring in the context of a nonpublic forum and that the Government’s reasons for excluding respondents from the CFC appear, at least facially, to satisfy the reasonableness standard. We express no opinion on the question whether petitioner’s explanation is merely a pretext for viewpoint discrimination. Accordingly, we reverse and remand for further proceedings consistent with this opinion.
A
Charitable solicitation of funds has been recognized by this Court as a form of protected speech. In Village of Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 (1980), the Court observed:
“[Sjoliciting funds involves interests protected by the First Amendment’s guarantee of freedom of speech. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748, 761 (1976)....” Id., at 629.
“Soliciting financial support is undoubtedly subject to reasonable regulation but the latter must be undertaken with due regard for the reality that solicitation is characteristically intertwined with informative and perhaps persuasive speech seeking support for particular causes or for particular views... and for the reality that without solicitation the flow of such information and advocacy would likely cease.... Furthermore,, it has not been dealt with in our cases as a variety of purely commercial speech.” Id,., at 632.
See also Bates v. State Bar of Arizona, 433 U. S. 350, 363 (1977).
In Village of Schaumburg, the Court struck down a local ordinance prohibiting solicitation in a public forum by charitable organizations that expended less than 75 percent of the receipts collected for charitable purposes. The plaintiff in that case was a public advocacy group that employed canvassers to distribute literature and answer questions about the group’s goals and activities as well as to solicit contributions. The Court found that “charitable appeals for funds, on the street or door to door, involve a variety of speech interests — communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes — that are within the protection of the First Amendment.” 444 U. S., at 632. The ordinance was invalid, the Court held, because it unduly interfered with the exercise of protected rights.
Although Village of Schaumburg establishes that noncommercial solicitation is protected by the First Amendment, petitioner argues that solicitation within the confines of the CFC is entitled to a lesser degree of protection. This argument is premised on the inherent differences between the face-to-face solicitation involved in Village of Schaumburg and the 30-word written statements at issue here. In a face-to-face encounter there is a greater opportunity for the exchange of ideas and the propagation of views than is available in the CFC. The statements contained in the CFC literature are merely informative. Although prepared by the participants, the statements must conform to federal standards which prohibit persuasive speech and the use of symbols “or other distractions” aimed at competing for the potential donor’s attention. 5 CFR § 950.521(d) (1983).
Notwithstanding the significant distinctions between in-person solicitation and solicitation in the abbreviated context of the CFC, we find that the latter deserves First Amendment protection. The brief statements in the CFC literature directly advance the speaker’s interest in informing readers about its existence and its goals. Moreover, an employee’s contribution in response to a request for funds functions as a general expression of support for the recipient and its views. See Buckley v. Valeo, 424 U. S. 1, 21 (1976). Although the CFC does not entail direct discourse between the solicitor and the donor, the CFC literature facilitates the dissemination of views and ideas by directing employees to the soliciting agency to obtain more extensive information. 5 CFR §950.521(e)(ii) (1983). Finally, without the funds obtained from solicitation in various fora, the organization’s continuing ability to communicate its ideas and goals may be jeopardized. See Village of Schaumburg v. Citizens for a Better Environment, supra, at 632. Thus, the nexus between solicitation and the communication of information and advocacy of causes is present in the CFC as in other contexts. Although Government restrictions on the length and content of the request are relevant to ascertaining the Government’s intent as to the nature of the forum created, they do not negate the finding that the request implicates interests protected by the First Amendment.
B
The conclusion that the solicitation which occurs in the CFC is protected speech merely begins our inquiry. Even protected speech is not equally permissible in all places and at all times. Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities. Cf. Jones v. North Carolina Prisoners’ Labor Union, 433 U. S. 119, 136 (1977). Recognizing that the Government, “no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated,” Greer v. Spook, 424 U. S. 828, 836 (1976), the Court has adopted a forum analysis as a means of determining when the Government’s interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes. Accordingly, the extent to which the Government can control access depends on the nature of the relevant forum. Because a principal purpose of traditional public fora is the free exchange of ideas, speakers can be excluded from a public forum only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest. See Perry Education Assn. v. Perry Local Educators’ Assn., 460 U. S., at 45. Similarly, when the Government has intentionally designated a place or means of communication as a public forum speakers cannot be excluded without a compelling governmental interest. Access to a nonpublic forum, however, can be restricted as long as the restrictions are “reasonable and [are] not an effort to suppress expression merely because public officials oppose the speaker’s view.” Id., at 46.
To determine whether the First Amendment permits the Government to exclude respondents from the CFC, we must first decide whether the forum consists of the federal workplace, as petitioner contends, or the CFC, as respondents maintain. Having defined the relevant forum, we must then determine whether it is public or nonpublic in nature.
Petitioner contends that a First Amendment forum necessarily consists of tangible government property. Because the only “property” involved here is the federal workplace, in petitioner’s view the workplace constitutes the relevant forum. Under this analysis, the CFC is merely an activity that takes place in the federal workplace. Respondents, in contrast, argue that the forum should be defined in terms of the access sought by the speaker. Under their view, the particular channel of communication constitutes the forum for First Amendment purposes. Because respondents seek access only to the CFC and do not claim a general right to engage in face-to-face solicitation in the federal workplace, they contend that the relevant forum is the CFC and its attendant literature.
We agree with respondents that the relevant forum for our purposes is the CFC. Although petitioner is correct that as an initial matter a speaker must seek access to public property or to private property dedicated to public use to evoke First Amendment concerns, forum analysis is not completed merely by identifying the government property at issue. Rather, in defining the forum we have focused on the access sought by the speaker. When speakers seek general access to public property, the forum encompasses that property. See, e. g., Greer v. Spook, supra. In cases in which limited access is sought, our cases have taken a more tailored approach to ascertaining the perimeters of a forum within the confines of the government property. For example, Perry Education Assn. v. Perry Local Educators’ Assn., supra, examined the access sought by the speaker and defined the forum as a school’s internal mail system and the teachers’ mailboxes, notwithstanding that an “internal mail system” lacks a physical situs. Similarly, in Lehman v. City of Shaker Heights, 418 U. S. 298, 300 (1974), where petitioners sought to compel the city to permit political advertising on city-owned buses, the Court treated the advertising spaces on the buses as the forum. Here, as in Perry Education Assn., respondents seek access to a particular means of communication. Consistent with the approach taken in prior cases, we find that the CFC, rather than the federal workplace, is the forum. This conclusion does not mean, however, that the Court will ignore the special nature and function of the federal workplace in evaluating the limits that may be imposed on an organization’s right to participate in the CFC. See Perry Education Assn. v. Perry Local Educators’ Assn., supra, at 44.
Having identified the forum as the CFC, we must decide whether it is nonpublic or public in nature. Most relevant in this
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_appnatpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES v. ALGER.
No. 7217.
Circuit Court of Appeals, Ninth Circuit.
Jan. 24, 1934.
John A. Carver, U. S. Atty., E. H. Cas-terlin and Frank Griffin, Asst. U. S. Attys., and R. L. Slaughter, Atty., U. S. Department of Justice, all of Boise, Idaho, and R. L. Mae-Cuteheon, Atty., U. S. Department of Justice, of Washington, D. C., and Wilbur C. Pickett, Sp. Asst, to Atty. Gen., for the United States.
Harry Benoit, of Twin Falls, Idaho, and Hawley & Worthwine, Jess Hawley, and Oscar W. Worthwine, all of Boise, Idaho, for appellee.
Before WILBUR, SAWTELLE, and GARRECHT, Circuit Judges. -
GARRECHT, Circuit Judge.
While participating in a raid upon an enemy machine gun on October 6, 1918, during the World War, plaintiff was struck from the side by a bullet which tore across his back from the right to a point about two inches to the left of his backbone, ripping through the long back muscle, and taking away a piece of the muscle and part of the bone. He fell, upon being hit, and after a moment dragged himself to a shell hole and shortly thereafter crawled toward the American lines, where he was brought in by a “buddy.” His legs were paralyzed for 48 hours following the injury. After being bandaged at a first-aid station he was removed to a base hospital and from that one to another. Gradually the wound healed, scar tissue nearly filling the hollow of the wound. He was brought back to the United States and discharged at Camp Bowie, Tex., in April of 1919, where he answered “no” to the question of whether or not he had any disability or impairment of health.
This appeal is from a judgment in favor of the insured under a policy of war risk insurance. The refusal of the trial court to direct a verdict for defendant is assigned as error. Premiums had been paid upon his $10,000 policy of war risk insurance to include the month of April, 1919, and therefore the date of lapse was May 31, 1919.
Appellant attacks the opinions of two experts who, after hearing the history of tin-case read, answered “yes” to the question whether the insured was totally and permanently disabled at the time of discharge. Cases are cited to the effect that the opinion of an expert, when opposed to undisputed facts and common sense, will not support a verdict. The work record of appellee, and his course in vocational training, are pointed out as facts contradictory of the opinion of the experts.
Appellee was an uneducated man (seventh grade grammar school at sixteen years of age) and unsuited to office work or work requiring mental training. He had been a farmer before entering the service and apparently depended, to a great extent at least, upon his back for his livelihood. Unsuited and unfitted by intellectual and physical handicaps for either office work or farming, he was placed by the government in training as an automobile mechanic, a task obviously beyond bis capacity, for bis story tells of hours and days when bo was unable to keep' up with his work — when he says he was forced by pain to cease effort and rest. He testifies that the strength of Ms back is gone and that the hard sear tissue there pains him constantly.
One of the witnesses tells of Alger fainting while at work; others that he had to be helped in almost every undertaking.
Aside from his vocational training period, there is practically no work record, for he has not earned any substantial sums of money nor has the continuity or regularity of employment been such as to take him without the definition of total and permanent disability as set down by the courts. However, Ihe work record is evidence for the jury to weigh. U. S. v. Jensen (C. C. A.) 66 F.(2d) 19, 20.
While in many cases evidence of an insured having taken vocational training may be an indication or even proof that he is not totally and permanently disabled, it is not conclusivo in all eases. It must bo remembered that vocational training was in the nature of schooling and necessarily not so exacting nor so intense as actual employment in such work. The same may be said of placement training where salary was paid by tbe government and the student or helper was not watched so closely nor was so much expected of him as would be the ease if the individual was being paid on the basis of work accomplished. Vocational training was bnt an effort upon the part of the government to malee one, who had been deprived of his means of livelihood, self-supporting, and assurance that it is or will be successful does not follow from its commencement. We are agreed that in many and most instances vocational training and placement training are inconsistent with total and permanent disability, but the rule is not inflexible; and here we conceive the case to be without the rule. See U. S. v. Jensen, supra.
Tbe Supreme Court of tlie United States, in the recent case of Lumbra v. U. S., 54 S. Ct. 272, 78 L. Ed. — (decided January 8, 1934), states: “The phrase ‘total permanent disability’ is to be construed reasonably and having regard to the circumstances of each ease. * * * The various meanings inhering in the phrase make impossible the ascertainment of any fixed rules or formula) uniformly to govern its construction. That which sometimes results in total disability may cause slight inconvenience under other conditions. Some are able to sustain themselves, without serious loss of productive power, against injury or disease sufficient totally to disable others.” See, also, Carter v. U. S. (C. C. A.) 49 F.(2d) 221; Ford v. U. S. (C. C. A.) 44 F.(2d) 754; and the case of U. S. v. Raser, 45 F.(2d) 545, decided by this court, which is similar to the ease at bar and authority for this decision.
The record discloses some conflict in the opinions of the expert witnesses, hut such disagreement together with the weight to be given tbe opinion evidence wore all for the consideration of the jury. U. S. v. Francis (C. C. A.) 64 F.(2d) 865. In that case the court said at page 867: “Where the parties permit an expert to state Ms opinion in general terms as to the incapacity of a person to work without injury to Ms health, it is very rarely that an appellate court.would be justified in holding that the conclusion thus adduced is of no substance and so baseless as to afford no support for a verdict.” See, also, U. S. v. Burleyson (C. C. A.) 64 F.(2d) 868, 872.
This court has many times held that it is not within its province to weigh the evidence. U. S. v. Dudley (C. C. A.) 64 F.(2d) 743, 744. Judge Sawtelle, in Sorvik v. U. S. (C. C. A.) 52 F.(2d) 406, 410, formulated the rule in the following language: “The test to be applied in such a case, of course, is not whether the evidence brings conviction in the mind of the trial judge; it is ‘whether or not the evidence to support a directed verdict as requested, was so conclusive that the trial court in the exercise of a sound judicial discretion should not sustain a verdict for the opposing party.’ [Cases cited.]” See, also, Gunning v. Cooley, 281 U. S. 90, 50 S. Ct. 231, 74 L. Ed. 720; Travelers Ins. Co. v. Randolph (C. C. A.) 78 F. 754.
The ease was properly submitted to the jury, and the refusal of the trial court to grant the motion of defendant for a directed verdict was not error.
Affirmed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_constit
|
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 constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant.
Douglas BENDER, by his Guardian, Mrs. Kenneth H. Nichol, Appellant, v. WALLACE-MURRAY COMPANY, Appellee.
No. 20075.
United States Court of Appeals, Eighth Circuit.
Sept. 29, 1970.
Charles Rick Johnson, Gregory, S. D., for appellant; John J. Simpson, Winner, S. D., on the brief.
Gale E. Fisher, Sioux Falls, S. D., for appellee.
Before GIBSON and LAY, Circuit Judges, and HUNTER, District Judge.
PER CURIAM.
This appeal arises from a suit against the defendant Wallaee-Murray Company on its alleged negligence in its manufacturing and distribution of a vent system installed for a furnace in a farm home near Gregory, South Dakota. A verdict was returned for the defendant and plaintiff appeals. The plaintiff originally sued the Wallaee-Murray Company, the estate of the deceased owner of the premises, and the installer of the ventilation system as joint tort-feasors. At the beginning of the trial plaintiff settled with the latter two defendants and executed releases under the South Dakota Uniform Contribution Among Tort-feasors Act.
The question on appeal is whether the trial court erred in instructing the jury that the issue of liability before them concerned only the defendant WallaeeMurray since the plaintiff had settled with the other alleged tort-feasors.
Objection is raised that the court misapplied the South Dakota Uniform Contribution Among Tort-feasors Act governing releases and settlements with multiple tort-feasors. Plaintiff’s exception to the court’s instructions focused on the right of contribution among the tort-feasors. Plaintiff urged that the jury be allowed to pass on the liability of the two absent defendants because it might affect the pro rata contribution to the overall judgment by the remaining defendant. In other words, if one of the parties released were found not to be a tort-feasor, then the remaining defendant would be liable to pay one-half of the judgment rather than one-third.
The difficulty with plaintiff’s objection to the instructions as related to the issue on appeal is that the jury found for the defendant on the issue of liability. There exists no issue of damages before us. It would be patently incorrect for this court to render an advisory opinion on the application of the South Dakota statute as to the pro rata handling of damages. Plaintiff urges, however, that the court’s instructions prevented him in some way from presenting the “whole spectrum of responsibility of the various defendants to the jury.” This was not the basis for exception to the court’s charge as required under Fed.R. Civ.P. 51. Furthermore, plaintiff concedes that no evidence was excluded by the court. Plaintiff further agrees that the issues of “proximate cause” and “concurrent negligence” were fully argued to the jury. We find no error in the verdict and judgment rendered for the defendant.
Judgment affirmed.
. Plaintiff’s counsel urged at trial that “a pro rata reduction in any event will not and cannot be ordered if a party to a settlement was not in fact a tortfeasor.”
Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant?
A. Issue not discussed
B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent
C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant
D. The resolution of the issue had mixed results for the appellant and respondent
Answer:
|
songer_usc2
|
33
|
What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 33. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
CALIFORNIA SHIP SERVICE CO. et al. v. PILLSBURY, Deputy Commissioner.
No. 11957.
United States Court of Appeals Ninth Circuit.
June 21, 1949.
DENMAN, Chief Judge, dissenting.
Lasher B. Gallagher, Los Angeles, Cal., for appellant.
H. G. Morison, Asst. Atty. Gen., James M. Carter, U. S. Atty., Clyde C. Downing and Max F. Deutz, Assts. U. S. Atty., Los Angeles, Cal., Alvin O. West, Atty. Dept, of Justice, Washington, D. C. (Ward E. Boote, Chief Counsel, Fed. Security Agency, Herbert P. Miller, Asst. Chief Counsel, Washington, D. C. of counsel), for appel-lee.
Before DENMAN, Chief Justice, and HEALY and BONE, Circuit Judges.
HEALY, Circuit Judge.
In this proceeding under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq., the Deputy Commissioner awarded death benefits to persons found to be dependents of a harbor worker named Robert Johnson who was accidentally killed in the course of his employment on a vessel undergoing repairs in Los Angeles harbor. Suit to enjoin the award was instituted by the employer and its insurance carrier, and the case is here on appeal from a judgment of dismissal. The principal contentions of the appellants are (1) that the showing of dependency was insufficient to support an award, and (2) that the deputy commissioner erred in his determination of the average weekly wage of the deceased worker.
Johnson, who was a colored boy and unmarried, met his death December 6, 1945. He was twenty-one years of age at that time, having been born May 27, 1924. His parents and five small brothers and sisters lived in New Orleans from which place the deceased had come to the Pacific coast to seek work. For the convenience of witnesses the claim of the mother on behalf of herself and the minor children was forwarded by Deputy Commissioner Pillsbury to the deputy commissioner at New Orleans for the taking of testimony on the issue of dependency, and the record was then returned to Commissioner Pillsbury for findings. The proof is that the family was poor and the earnings of the father inadequate to support his wife and their many offspring. The deceased appears to have been more than ordinarily solicitous of the welfare of his kin and there is evidence of his having contributed substantial sums to the mother. It is unnecessary to pursue the subject further than to say that the finding of dependency of the mother and minor brothers and sisters has substantial support in the record.
On this phase appellants complain of the receipt and consideration by Commissioner Pillsbury of certain wage reports of ship service companies containing comments to the effect that the deceased claimed to have four or five dependents. Exception is taken to these comments. However, appellants themselves obtained and submitted the wage reports and are hardly in a position to complain of their contents. There was much evidence of dependency aside from the reports and there is no reason for believing that the Deputy Commissioner gave undue weight to the comments. In making an investigation or inquiry or conducting a hearing a deputy commissioner is not bound by common law or statutory rules of evidence. See 33 U.S.C.A. § 923. Declarations of a deceased employee as to his having dependents are not without evidentiary value, and we think the receipt of such declarations is not error where, as here, they are substantially corroborated by other evidence.
Turning to the second contention mentioned, it appears that the deceased had' been following the employment in which he was working at the time of his death for a relatively short period of time, that is to say, from June 20, 1945 to his death December 6 of that year. The record reflects a continuous pattern of employment for the periods June 20 to September 28 and November 6 to December 6, but with no evidence of employment during the six weeks intervening between these periods. The actual weekly earnings while working varied from a low of about $10 for each of two weeks to a high of $86.69, with total earnings of $716.58 for the period. Commissioner Pillsbury determined that the average weekly earnings of the employee at the time of his death exceeded $37.50, and he awarded weekly death benefits to the dependents of 66-%% of this amount, namely $25.00. Appellants attack this finding on grounds now to be stated.
While testimony was being taken at New Orleans on the limited issue of dependency counsel for appellants made for the record a formal statement admitting or conceding certain facts unrelated to dependency, among these being that the average weekly wage of the decedent at the time of his injury was $29.62. The deputy commissioner then inquired of the attorney representing the family whether he accepted those same facts, and the attorney replied that he did. On the basis of this so-called stipulation appellants contend that Commissioner Pillsbury was obliged to find that the average weekly wage of the decedent was $29.62. We disagree. The total elapsed time between June 20 and December 6 was twenty-four weeks and one day. Obviously the stipulated weekly amount was arrived at by the process of dividing by twenty-four and a fraction the total earnings of the decedent for the period. The Act prescribes no such method of computing the average weekly wage. It sets up three alternative standards on one or another of which the weekly wage determination is to be made, depending upon the facts of the particular case. The -statutory provisions are shown-below. Subdivision (a) is of, course inapplicable since decedent had not worked in the employment substantially the whole of the year immediately preceding his death. On a literal reading subdivision (b) might, be thought to apply, but the rule in this circuit is that (b) is not to be employed merely because it may be possible to force the transaction into the formula it prescribes. Its use is proper only in situations where the employment is regular and substantially continupus, and such was not the case here. Marshall v. Andrew F. Mahony Co., 9 Cir., 56 F.2d 74; Pillsbury v. Pacific Steamship Co., 9 Cir., 56 F.2d 79; Pillsbury v. Charles Nelson Co., 9 Cir., 56 F.2d 80. Whenever, as in this instance, subdivisions (a) or (b) can not reasonably and fairly be applied subdivision (c) is to be followed. Consult holdings supra. While mot expressly so stated in the findings, it is clear that Commissioner Pillsbury resorted to subdivision (c) in determining decedent’s average weekly wage; and as already intimated we are of opinion that this procedure was in line with the interpretation given the statute by the.decisions of this court.
Appellants do not appear to argue that the Commissioner’s determination was not in accordance with law; their contention is rather that the Commissioner was without authority to ignore or reject the stipulation of the parties. We think otherwise. Section 15(b) of the Act, 33 U.S.C.A. § 915(b), provides that “no agreement by an employee to waive his right to compensation under this chapter shall be valid.” , As appears from the cases cited under this section the provision has been broadly administered by the courts. See for example Southern S. S. Co. v. Sheppeard, D. C., 34 F.2d 959, 961, where Judge Hutcheson observed that “certainly no agreement can be made which will change the method of compensation fixed by statute or prevent the employee from receiving at the hands of the commissioner, the award guaranteed by the statute.” It is the duty of the deputy commissioner to administer the Act as written and judicially construed, stipulations of the parties to the contrary notwithstanding.
Under subdivision (c) actual earnings are not controlling, the conclusion to be arrived at being a sum which “shall reasonably represent the annual earning capacity” of the employee. Cf. Gunther v. United States Employees’ Compensation Commission, 9 Cir., 41 F.2d 151, 154. We are not able to say that the figure arrived at here is against law or unjustified by the record. We may add that Commissioner Pillsbury offered appellants the opportunity to present further evidence in the event counsel felt that they had been taken by surprise. Counsel, however, made no request for a further hearing.
Several other points are argued but they are unworthy of notice.
Affirmed.
“Except as otherwise provided in this .chapter, the average weekly wage of the injured .employee at the time of the Injury -shall be taken as the basis upon •which to compute compensation and shall be determined as follows:
“(a) If the injured employee shall have worked in the employment in which he was .working at the time of the injury, whether for the same or another employer, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary which he shall .have .earned in such employment during the days when so employed.
“(b) If the injured employee shall >not have worked in such employment •during substantially the whole of such .year, his average annual earnings shall •consist of three hundred times the average daily wage or salary which an employee of the same class working substantially the whole of s'uch immediately preceding year in the same or in similar •employment in the same or a neighboring place shall have earned in such employment during the days when so employed.
“(c) If either of the foregoing methods of arriving at the annual average earnings of an injured employee cannot reasonably and fairly be applied, such annual earnings shall be such sum as, having regard to the previous earnings of the injured employee and of other employees of the same or most similar class, working in the same or most similar employment in the same or neighboring locality, shall reasonably represent the annual earning capacity of the injured employee in the employment in which he was working at the time of the injury.” 33 U.S.C.A. § 910. Amendments were made to these provisions in the Act of June 24, 1948, 62 Stat. 603.
The answer filed in the court below was not signed by Deputy Commissioner Pillsbury. We gather that a difference of opinion existed between him and the assistant United States attorney, who signed. the answer, concerning the binding nature oí the stipulation. On oral argument here counsel representing the United States attorney’s office conceded that the stipulation was not binding. No purpose other than further injurious-delay would he served by returning the case to the Commissioner.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 33. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_origin
|
C
|
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.
ATLANTIC COAST LINE R. CO. v. CLAUGHTON.
No. 7555.
Circuit Court of Appeals, Fifth Circuit.
Feb. 15, 1935.
Rehearing Denied March 15, 1935.
T. Paine Kelly, of Tampa, Fla., for appellant.
D. C. McMullen, of Tampa, Fla., for appellee.
Before FOSTER, and HUTCHESON, Circuit Judges,
BRYAN, Judge,
This action, by a widow against a railroad company to recover damages for negligently killing her husband at a grade cross-ing> is here for the second time. On the former appeal, which was taken by the plaintiff, we held that the evidence was sufficient to sustain a verdict in her favor, and consequently that the trial court erred in direct-ing a verdict for the defendant. Claughton v. Atlantic Coast Line R. Co. (C. C. A.) 47 F.(2d) 679. On the trial which the defendant now seeks to have reviewed its motion for a directed verdict was denied, and there was a verdict and judgment for the plaintiff.
The acts of negligence on which plaintiff relies were that the train was being run at a dangerously high rate of speed and failed to give warning by whistle or bell of its approach to the highway crossing. The evidence before us now is substantially the same as it was when the case was here before, and therefore need not be restated. As we are Still of opinion that it was ample to sustain a verdict for plaintiff, we hold untenable defendant’s repeated contention that it was entitled to the peremptory instruction, Defendant also contends that section 7.051, Compiled General Laws of Florida, which undertakes to create the presumption of negligence as against railroad companies upon proof of injury, and which the trial court applied in this case, is unconstitutional because it violates the due process and equal protection clauses of the Fourteenth Amendment. That section and the one following it, which provides for diminution of damages in cases of contributory negligence, are copied in the former opinion in this case; and also in Kirch v. Atlantic Coast Line R. Co. (C. C. A.) 38 F.(2d) 963, where we rejected the same contention. The Supreme Court held in Seaboard Air Line Railway Co. v. Watson, 287 U. S. 86, 53 S. Ct. 32, 77 L. Ed. 180, 86 A. L. R. 174, that section 7051 did not violate the equal protection clause of the Fourteenth Amendment; and in Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U. S. 35, 31 S. Ct. 136, 55 L. Ed. 78, 32 L. R. A. (N. S.) 226, Ann. Cas. 1912A, 463, that the Mississippi statute, which provides that proof of injury inflicted by the running of locomotives or cars of a railroad company shall be prima facie evidence of negligence, violated neither the equal protection nor the due process clause of that amendment. Section 7051, as construed by the Florida Supreme Court, has the same meaning, in so far as is here material, as the Mississippi statute; and, although it was copied from a Georgia statute, the case of Western & Atlantic R. R. v. Henderson, 279 U. S. 639, 49 S. Ct. 445, 447, 73 L. Ed. 884, is not in point because the ruling there was that, as construed by the Georgia decisions, the statute '‘creates an inference that is given effect of evidence to be weighed against opposing testimony, and is to prevail unless such testimony is found by the jury to preponderate.” The statute as construed by the Supreme Court of Florida is controlling in this case. Kirch v. Atlantic Coast Line R. Co., supra.
The judgment is affirmed.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
sc_authoritydecision
|
D
|
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.
COUNTY OF IMPERIAL, CALIFORNIA, et al. v. MUNOZ et al.
No. 79-1003.
Argued October 15, 1980
Decided December 2, 1980
Stewart, J., delivered the opinion of the Court, in which Burger, C. J., and White, Powell, and Rehnquist, JJ., joined. Powell, J., filed a concurring opinion, post, p. 60. Blackmun, J., filed an opinion concurring in the result, post, p. 61. Brennan, J., filed a dissenting opinion, in which Stevens, J., joined, post, p. 62. Marshall, J., filed a dissenting statement, post, p. 63.
James H. Harmon argued the cause and filed briefs for petitioners.
William H. Kronberger, Jr., argued the cause for respondents. With him on the briefs was Murry Luftig
Donald McDougal, Jr., filed a brief for Donald C. McDougal as amicus curiae.
Justice Stewart
delivered the opinion of the Court.
The Anti-Injunction Act, 28 U. S. C. § 2283, provides:
“A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”
This case presents issues respecting the scope of that Act.
I
In 1972, Donald C. McDougal bought from W. Erie Simpson a tract of land in Imperial County, Cal. Although the tract was in a residential subdivision, the county’s zoning ordinance allowed the tract’s owner to develop its natural resources if he could obtain a conditional-use permit. With the land, McDougal acquired such a permit, which allowed him to sell well water on the condition that it be sold only for use within the county. Simpson had never challenged that condition, nor had he ever sold much water from his well. Like Simpson, McDougal did not challenge the condition, but he did sell a good deal of water, and he sold some of it for use outside the county. McDougal’s neighbors grew irritated by the many trucks carrying water from McDougal’s premises, and they complained to the county. The county sought to vindicate its zoning ordinance and permit by asking a California Superior Court for injunctive and declaratory relief that would prohibit McDougal from selling water for consumption outside the county.
The state trial court enjoined McDougal from “conducting a trucking operation on the premises similar to that which occurred commencing on or about June 30, 1972.” On appeal to the California Supreme Court, McDougal argued that the permit’s geographic restriction was invalid. The state appellate court declined to reach that argument, since “a landowner or his successor in title is barred from challenging a condition imposed upon the granting of a special permit if he has acquiesced therein by either specifically agreeing to the condition or failing to challenge its validity, and accepted the benefits afforded by the permit.” County of Imperial v. McDougal, 19 Cal. 3d 505, 510-511, 564 P. 2d 14, 18. The California Supreme Court thus affirmed the Superior Court’s decision that the sale of water outside the county violated the ordinance, although it reversed the Superior Court’s finding that the frequent truck traffic at McDougal’s premises violated the zoning ordinance. McDougal appealed that judgment to this Court, which dismissed his appeal for want of a substantial federal question. 434 U. S. 944.
The respondents in this case are Mexican merchants: Respondent Munoz has a contract with McDougal to be his broker in arranging sales of water to Mexico; respondents Martinez and De Leon have agreed to purchase McDougal’s water for consumption in Mexico. Although none of the respondents was a named party to the suit against McDougal in the state courts, all of them were interested and — to an undetermined degree — involved in it, and Munoz participated as amicus curiae before the California Supreme Court. Twelve days after that court had denied McDougal’s petition for rehearing, and even before this Court had dismissed his appeal, the respondents initiated the present litigation by filing in the United States District Court for the Southern District of California a complaint seeking declaratory and injunctive relief to prevent the County of Imperial from enforcing the terms of McDougal’s conditional permit. They argued in the District Court that those terms violated the Commerce Clause of the Constitution. Art. I, § 8, cl. 3. The District Court concluded that respondents would suffer irreparable harm were there no injunction, and that they would probably succeed on the merits. Accordingly, the court issued a preliminary injunction restraining the county “from enforcing the restriction in the use permit which prohibits sale of water for use outside Imperial County.”
Some months later, the California Superior Court ordered McDougal to show cause why he should not be held guilty of contempt for violating the court’s injunction by selling water for use outside the county. After proceedings in which the county participated, he was found guilty of contempt and again ordered to cease selling water for use outside of Imperial County. That order was stayed, however, pending the outcome of the county’s appeal of the federal trial court’s order to the United States Court of Appeals for the Ninth Circuit. Subsequently, the Court of Appeals affirmed the District Court’s order of preliminary injunction, 604 F. 2d 1174, and this Court granted the county’s petition for a writ of certiorari. 445 U. S. 903.
II
The county has maintained throughout the present litigation that the Anti-Injunction Act operates to prohibit the District Court from enjoining it from enforcing the terms of McDougal’s permit. In rejecting that argument, the District Court cited Hale v. Bimco Trading, Inc., 306 U. S. 375, and said that “this court may, if otherwise appropriate, restrain the operation of an unconstitutional statute; surely it does not lose the right to do so merely because the statute has been tested in the state courts.” In reaching the same conclusion, the Court of Appeals reasoned that the state trial court proceedings had terminated, and that the injunction, therefore, did not violate the rule that the Act cannot be evaded by addressing a federal injunction to the parties rather than to the state court. It also agreed with the District Court that, under the Hale case, “third parties are not barred under the Anti-Injunction Act from challenging a statute on federal constitutional grounds when the statute is also under litigation in the state courts.” 604 F. 2d, at 1176.
In our view the threshold reasoning of the Court of Appeals disregarded the teaching of this Court’s opinion in Atlantic Coast Line R. Co. v. Locomotive Engineers, 398 U. S. 281. In that case, the railroad had secured a state-court injunction prohibiting the union from picketing a railroad facility. Two years later, the union tried but failed to convince the state court to dissolve the injunction in light of an intervening decision of this Court. The union did not appeal that decision, but instead persuaded a federal court to enjoin the railroad “from giving effect to or availing [itself] of the benefits of” the state-court injunction. Id., at 287. This Court held that “although this federal injunction is in terms directed only at the railroad it is an injunction ‘to stay proceedings in a State court.’ ” Ibid. The view of the Court of Appeals in the present case that after a state court has entered an injunction, its proceedings are concluded for the purposes of the Anti-Injunction Act was thus contrary to the square holding of the Atlantic Coast Line case.
The Court of Appeals’ final reason (and the District Court’s only reason) for finding the Act inapplicable was this Court’s decision in Hale v. Bimco Trading, Inc., supra. There, a cement company had secured from a state court a writ of mandamus ordering the state road department to enforce a statute requiring the inspection of cement imported into the State. Bimco Trading, Inc., subsequently obtained a federal-court injunction restraining the road department from enforcing the statute. This Court held that 28 U. S. C. § 379 (1934 ed.) — the predecessor of the current Anti-Injunction Act — did not bar the federal injunction, since to hold otherwise would have been to
“assert that a successful mandamus proceeding in a state court against state officials to enforce a challenged statute, bars injunctive relief in a United States district court against enforcement of the statute by state officials at the suit of strangers to the state court proceedings. This assumes that the mandamus proceeding bound the independent suitor in the federal court as though he were a party to the litigation in the state court. This, of course, is not so.” 306 U. S., at 377-378.
Neither the District Court nor the Court of Appeals addressed the question whether respondents in this case were “strangers to the state court proceeding” who were not bound “as though [they were parties] to the litigation in the state court.” Unless respondents were such “strangers,” the injunction they sought was barred by the Act.
Accordingly, the judgment is vacated, and the case is remanded to the Court of Appeals.
It is so ordered.
The state trial court opinion is unreported.
The District Court opinion is unreported.
The dissenting opinion today rests entirely on the supposition that the Court of Appeals has already decided this question. That supposition is demonstrably untenable:
The Court of Appeals found that the Anti-Injunction Act was inapplicable, and proceeded to consider the merits of the petitioners’ res judicata defense, a defense based upon the judgment in the state litigation. The court held that the doctrine of res judicata did not in any event apply in the circumstances here presented, and accordingly explicitly declined to consider whether the respondents had been “in privity” with McDougal in the state litigation. Since the court did not even decide that the respondents had not been in privity with McDougal in the state litigation, it most assuredly could not have decided and did not decide that the respondents were “strangers to the state court proceeding.”
The respondents contend that their suit comes within one of the statutory exceptions to the Act. First, they urge that the “in aid of jurisdiction” exception applies. They apparently reason that the District Court was not barred from entering a declaratory judgment, that a declaratory judgment unsupported by an injunction would be a nullity, and that therefore an injunction was necessary “in aid of” the District Court’s subject-matter jurisdiction over Commerce Clause questions. This argument proves too much, since by its reasoning the exception, and not the rule, would always apply. Second, respondents assert that this case falls within the exception to the Act for injunctions “expressly authorized by Act of Congress.” They cite Mitchum v. Foster, 407 U. S. 225, for the undoubted proposition that suits under 42 U. S. C. § 1983 are within that exception. This argument cannot prevail, however, for the simple reason that the respondents’ complaint did not rely on or even so much as mention § 1983.
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_counsel1
|
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 appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America ex rel. Gerald Daniel WALKER, Petitioner-Appellant, v. John J. TWOMEY, Respondent-Appellee. UNITED STATES of America ex rel. Sherman Anthony KANE, Petitioner-Appellant, v. Peter BENSINGER, etc., et al., Respondents-Appellees.
Nos. 72-1096, 73-1028.
United States Court of Appeals, Seventh Circuit.
No. 72-1096 Argued Oct. 16, 1972.
No. 73-1028 Submitted May 18, 1973.
Decided Aug. 27, 1973.
John T. Perry, Wheaton, Ill., Cornelius E. Toole, Chicago, Ill., for petitioners-appellants.
William J. Scott, Atty. Gen., Morton Friedman, James B. Zagel and Melbourne A. Noel, Jr., Asst. Attys. Gen., Chicago, 111., for respondents-appellees.
Before SWYGERT, Chief Judge, KNOCH, Senior Circuit Judge, and FAIRCHILD, Circuit Judge.
PER CURIAM.
Several judges of the district court for the northern district of Illinois have arrived at conflicting views concerning a rule to be applied where persons convicted of crime in a state court are denied bail pending appeal.
Judge Will has applied a rule that when the state court denies bail pending appeal and does not express any basis for its denial, such omission creates a presumption of arbitrariness. United States ex rel. Keating v. Bensinger, 322 F.Supp. 784 (N.D.Ill., 1971). In decisions now under review. Judge Napoli in Walker, and Judge Decker in Kane, declined to apply that presumption. In each case habeas relief was denied because the court concluded that petitioner had not shown that the record provides no rational basis for the decision.
There is little disagreement on the preliminary steps of the analysis. The provision of the eighth amendment prohibiting excessive bail is assumed to be binding on the states. Whatever the content of the constitutional protection with respect to bail, binding upon the states, it is clear that once a state has made provision for bail pending appeal, the arbitrary denial of bail violates the fourteenth amendment.
Codification controlling release pending appeal in the federal system is found in 18 U.S.C. § 3148. The risk of flight, probability that the convicted person will pose a danger to another or to the community, and lack of merit in the appeal are appropriate considerations, and one or a combination of those factors may justify denial of release or, in some cases, imposition of more onerous conditions of release, including bail.
Rule 9, F.R.A.P., provides that after a conviction in federal district court, if the district court refuses release pending appeal, or imposes conditions of release, the court shall state in writing the reasons for the action taken. We draw on our own experience in' considering appellants’ requests for release after denial by a district court to observe that written reasons for denial or imposition of high bail are most helpful in performing our task. We are, in those instances, reviewing decisions of courts in the same system, over which we have appellate jurisdiction, in order to implement federal judicial policy. Although the word “review” is sometimes loosely used with respect to exercise of federal habeas corpus jurisdiction where a state court decision is being collaterally attacked, this is an inappropriate use of the term.
It is fair to say that there is strong federal judicial'policy in favor of release on bail pending appeal unless the appeal appears to be frivolous or dilatory.
It does not necessarily follow that present federal judicial policy, either substantive or procedural, with respect to bail pending appeal from a criminal conviction, is an exact measure of a right with respect to bail on appeal, protected against state action by the fourteenth amendment.
The fact that articulation by a state court of its reasons for denial of release on bail would usually make it easier for a federal court, considering a petition for habeas corpus, to decide whether the denial could be said to have a rational basis, does not authorize federal courts to impose that procedural requirement on state courts. We agree with Judge Decker that reliance on a presumption of regularity is appropriate at this point, Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and in the conclusion stated in his decision in Kane:
“In sum, this court believes that the burden in these cases should rest on the convicted defendant to show that the state court has acted in an arbitrary fashion and that a ‘presumption of regularity’ should attend all decisions of the state courts and not only those accompanied by oral or written explanations. This is not to say that the petitioner has lost his constitutional right or remedy. He can still attack the decision to deny him bail. He must, however, bear the burden of showing that the record provides no rational basis for the decision.”
The merits of Walker’s claim.
Walker, age 39, was convicted of attempted murder and aggravated battery, and received concurrent sentences. The sentence for attempted murder was 16-20 years. Beginning in 1954, Walker committed ten armed robberies in Ohio and Florida, and served terms of imprisonment in those states. In opposing the petition for release in state court, the state alleged that Walker had attempted a jail break while awaiting trial on the present charges, had threatened the lives of cellmates and that he admitted always carrying a loaded gun. Walker listed four general assignments of error, but there was nothing to show the substan-tiality of these claims. Although the state court had before it Walker’s showing that he had been released on early parole in Ohio, that he is a resident of Illinois (a fact disputed by the state), and that he had a successful experience on parole, and a record of perfect attendance in court several years earlier while free on bond in a prosecution for aggravated battery (ending in acquittal upon a second trial), we are unable to say on consideration of this record that there was no rational basis for denial of release on bail pending appeal.
The merits of Kane’s claim.
Kane, age 33, was convicted of possession of heroin and marijuana and received concurrent sentences. The sentence on the heroin count was 7-15 years. The narcotics were found in Kane’s automobile after he met with an accident. The heroin had a street value of $20,000. Kane had $1500 cash and a loaded pistol with shoulder holster. The circumstances clearly indicated that he, with his passenger, was on his way to make sales of heroin in several small towns. He made no showing that his appeal would present arguable questions. Although he stated that, if released, he would reside with his family in Chicago, that he was an honorably discharged veteran, and that he had steady employment, we conclude he has not shown that the record provides no rational basis for denial of release pending appeal.
Accordingly the judgments appealed from are affirmed.
. Judge Friendly has written that, “Although this provision of the Bill of Rights has not yet been held by the Supreme Court to be one of those made applicable to the states through the Fourteenth Amendment, we entertain little doubt that it will be.” United States ex rel. Goodman v. Kehl, 456 F.2d 863, 868 (2d Cir., 1972.).
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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songer_origin
|
A
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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.
UNITED STATES of America, Appellee, v. Louis MARTIN, Appellant.
No. 77-1111.
United States Court of Appeals, Eighth Circuit.
Submitted June 13, 1977.
Decided Aug. 22, 1977.
Henry L. Jones, Little Rock, Ark., for appellant; Wiley A. Branton, Washington, D. C., on brief.
Samuel A. Perroni, Asst. U. S. Atty., Little Rock, Ark., for appellee; W. H. Dilla-hunty, U. S. Atty., and Sandra W. Cherry, Asst. U. S. Atty., Little Rock, Ark., on brief.
Before HEANEY, STEPHENSON and HENLEY, Circuit Judges.
STEPHENSON, Circuit Judge.
Appellant Louis Martin was charged on November 4, 1975, in a two-count indictment in violation of 18 U.S.C. § 152. The first count charged Martin with making a false oath and account in relation to a bankruptcy proceeding, in that he filed a schedule representing that he and his wife had $50.00 on hand, wherein he fraudulently failed to disclose other assets of money and cash totalling $565.12. The second count charged Martin with fraudulently transferring and concealing assets in the amount of $2,060.12 in contemplation of bankruptcy. On May 4, 1976, Martin’s first trial was terminated when the district court, pursuant to Martin’s motion, declared a mistrial. On November 29,1976, Martin’s second trial began and on December 1, 1976, the jury returned a verdict of guilty on both counts. The district court sentenced Martin to 18 months’ imprisonment on the first count and 2 years’ supervised probation on the second count. In this appeal Martin alleges the following errors: (1) the district court erred in denying Martin’s motion to dismiss the indictment because (a) the Double Jeopardy Clause barred Martin’s retrial, (b) the government’s conduct before the grand jury required dismissal, and (c) the government’s conduct following the grand jury required dismissal; (2) the district court erred in failing to grant Martin’s motion in limine; (3) the district court prejudiced the jury by the manner in which it questioned Martin’s expert witness; (4) the district court erred in refusing to give one of Martin’s requested instructions and in giving one of the government’s requested instructions. We are persuaded that under the circumstances of this case, the Double Jeopardy Clause of the Fifth Amendment barred Martin’s retrial. Accordingly, we reverse.
Background
On December 16, 1974, Martin, a lawyer employed by Pulaski County, Arkansas, and his wife, employed by the state of Arkansas, filed their voluntary petition in bankruptcy in the Eastern District of Arkansas. The petition contained a schedule of debts which listed eight creditors and a total indebtedness of $19,447.62. Of the total indebtedness, $18,382.61 represented debts that Martin and his wife owed to six student loan creditors.
Before evidence was presented in his first trial, Martin filed a motion in limine requesting that the district court prohibit any mention or reference to student loans and exclude any documents referring to student loans or that reference to student loans be excised. Martin attached as exhibits to his motion in limine 22 Arkansas Gazette newspaper articles illustrating the publicity which accompanied his attempt to discharge the student loan debts. In addition to the newspaper articles, affidavits by Martin and his wife were filed attesting to obscene and racial remarks directed at the Martins as a result of their bankruptcy petition. Martin’s counsel stated to the court during the hearing on the motion that the defense would agree to stipulate “to the amount of money in certain accounts at a certain time, when that money went to the account and when it left the account.” The purpose of this stipulation was to avoid the mentioning of student loans.
Following a lengthy hearing, the district court granted Martin’s motion in limine. While ruling on the motion, the court stated to the government’s attorney:
You cannot use student loans. And I admonish you not to unduly use loans and lending institutions. * * * Talk about debts, or use other words, because the Court is sincere in believing that there has been an undue amount of publicity to the extent that Louis Martin will be prejudiced if student loans or an undue emphasis on loan and lending institutions is used to the extent that would infer indirectly what I am telling you not to do directly.
A short time later the district court clarified his ruling by stating to the government’s attorney:
I am going to back up at this time and clarify the ruling by saying that you cannot name the specific creditors. * * * I have got to rule that you cannot name the specific creditors.
* * * So, when I ruled, and to clarify my ruling further, I will say that you cannot go into it, name the creditors, and go beyond that into the making of the loans * * *.
In addition to his motion in limine, Martin asked the district court at this time to prohibit the government’s attorney from reading Martin’s grand jury testimony to the jury as substantive evidence. Appellant argued that most of the statements contained in Martin’s grand jury testimony were irrelevant and prejudicial. The government’s attorney, however, assured the court that the irrelevant statements contained in the grand jury testimony had been excluded. The district court denied Martin’s request but cautioned the government that the use of Martin’s grand jury testimony must not violate any of the court’s prior rulings. In addition, the court indicated that Martin’s objection to the use of the grand jury testimony would be treated as a continuing objection.
Early in the trial, after two witnesses had testified for the government, the government’s attorney read a substantial portion of Martin’s grand jury testimony to the jury. As a result the appellant subsequently moved for a mistrial. The district court, in granting the mistrial, stated:
I feel that error has been made and it will be reversed on appeal, if there is a conviction. And so the Court feels that there is no alternative other than to declare a mistrial at this point.
Between the first and second trials, Martin filed a motion to dismiss the indictment, contending in part that the United States Attorney had engaged in an ex parte conversation with Judge Shell on the day of the mistrial declaration. In anticipation of being called as a witness at the hearing on the motion, Judge Shell recused himself. The case was then assigned to Judge Williams.
In addition to alleging the ex parte conversation, Martin contended that the Double Jeopardy Clause barred a second trial and that the government’s conduct before the grand jury required a dismissal of the indictment. The appellant also renewed all motions filed in the first trial including the motion in limine. After a hearing was held, Judge Williams denied Martin’s motion to dismiss the indictment and the motion in limine.
The second trial began on November 29, 1976, and Martin again renewed his motion in limine. The district court denied the motion and allowed the evidence concerning student loans. Martin was subsequently found guilty by the jury on both counts of the indictment.
Martin raises numerous issues in this appeal. In light of the total circumstances of the case, we need only discuss his Double Jeopardy claim.
Double Jeopardy
The dispositive question on this appeal is whether the Double Jeopardy Clause was violated by a retrial of Martin after the first trial ended in a mistrial granted at Martin’s request.
The Fifth Amendment’s prohibition against placing a defendant “twice in jeopardy” represents a constitutional policy of finality for the defendant’s benefit in federal criminal proceedings. United States v. Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1970). The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the state with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty. Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).
In analyzing the question of whether the Double Jeopardy Clause bars a retrial of a defendant after a mistrial declaration, the Supreme Court has distinguished cases where mistrials are declared sua sponte by the court and cases where mistrials are granted at the defendant’s request or with his consent. In the former, the defendant is precluded from deciding whether or not to take the case from the jury — a decision in which the defendant has a significant interest. United States v. Jorn, supra, 400 U.S. at 485, 91 S.Ct. 547. Because of the defendant’s preclusion in this important decision, the Double Jeopardy inquiry focuses upon the “manifest necessity” for the mistrial. See United States v. Dinitz, 424 U.S. 600, 606-08, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976); United States v. Jorn, supra, 400 U.S. at 480-81, 91 S.Ct. 547; United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824).
Different considerations obtain when a mistrial is declared at the defendant’s request. United States v. Dinitz, supra, 424 U.S. at 607, 96 S.Ct. 1075. The Double Jeopardy Clause generally would not stand in the way of reprosecution where the defendant has requested a mistrial. Lee v. United States,-U.S.-,-, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977); United States v. Jorn, supra, 400 U.S. at 485, 91 S.Ct. 547. The Supreme Court has recognized, however, limited circumstances where a defendant’s mistrial request does not remove the Double Jeopardy bar. For example, the Double Jeopardy Clause protects a defendant against governmental actions intended to provoke mistrial requests. United States v. Dinitz, supra, 424 U.S. at 611, 96 S.Ct. 1075. It bars retrials where the underlying error is “motivated by bad faith or undertaken to harass or prejudice” the defendant. United States v. Dinitz, supra, 424 U.S. at 611, 96 S.Ct. at 1082. Thus, where “prosecutorial overreaching” is present, United States v. Jorn, supra, 400 U.S. at 485, 91 S.Ct. 547, the interests protected by the Double Jeopardy Clause outweigh society’s interest in conducting a second trial ending in acquittal or conviction. United States v. Kessler, 530 F.2d 1246, 1255-56 (5th Cir. 1976). See United States v. Wilson, 534 F.2d 76, 80 (6th Cir. 1976).
Our inquiry, therefore, must center upon the prosecutor’s conduct prior to the mistrial in order to determine if there was prosecutorial overreaching. Although mere negligence by the prosecutor is not the type of overreaching contemplated by Dinitz, if the prosecutorial error is motivated by bad faith or undertaken to harass or prejudice the defendant, then prosecutorial overreaching will be found. Lee v. United States, supra, - U.S. at-, 97 S.Ct. 2141. See United States v. DiSilvio, 520 F.2d 247, 249-50 (3d Cir.), cert. denied, 423 U.S. 1015, 96 S.Ct. 447, 46 L.Ed.2d 386 (1975).
Appellant’s major contention of prosecutorial overreaching is found in the reading of Martin’s grand jury testimony to the jury. Although Martin does not contend the government read the grand jury testimony to intentionally provoke a mistrial request, he does allege that the government was grossly negligent in so doing.
Our review of the record convinces us that the prosecutor’s conduct in reading the grand jury transcript was more than mere prosecutorial negligence. The following excerpts are illustrative of the irrelevant and highly prejudicial material which was read to the trial jury by the government’s attorney:
Q. [prosecutor] Well, I am not going to give your attorney a dissertation of the federal laws. You can simply advise your attorney the Grand Jury is charged with an investigation of all the federal laws of the United States of America. I don’t know what the Grand Jury might determine after hearing your statement, but to tell us to pinpoint this or that I am not at liberty to do so.
When they are empaneled, the Court hands to them the entire federal law, the Penal Code.
******
Q. You say this is similar to Watergate mentality?
******
Q. Well, if it turns out to be, Mr. Martin, you engaged in activities similar to Watergate activities, would it not be proper for the Grand Jury to say you should be charged like anybody else?
******
Q. Some people feel that Watergate investigations are good.
******
Q. Mr. Martin, anything wrong with answering?
******
Q. [grand juror] You are saying you could have lied on the petition?
******
Q. [prosecutor] You only took five hundred but had a thousand coming? You have filed a lot of bankruptcy petitions?
******
Q. [grand juror] If you filled it out, it looks like you would find out how much money you had. You would check at Worthen Bank, look in your billfold and find out how much you had. You wouldn’t happen to overlook five hundred dollars.
Q. [prosecutor] We are not talking about fifty cents; seventy-five cents. ******
[grand juror] I don’t know why he has to hesitate.
[grand juror] You know whether you lied on the form or not.
******
Q. [grand juror] Wait a minute. You are not going to tell us you had a thousand dollars cash and you don’t know what you did with it?
******
Q. This five hundred dollars, you are not going to tell me you cashed a check for five hundred dollars and you don’t know what you did with it? Don’t tell us that.
******
Q. You come up with an answer for that because I am really mad at you, telling us you had cashed a check for five hundred dollars and you don’t know what you did with it.
******
Q. [prosecutor] You do know how to do one of these things?
A. Just in doing that one. I haven’t done any since or before.
Q. [prosecutor] You did such a good job on this one.
******
Q. [grand juror] The problem is getting a thousand dollars within a two-week period before declaring bankruptcy and cashing checks, is kind of inconceivable you would put down fifty dollars on the bankruptcy petition.
******
Q. [grand juror] What was the date on that?
[prosecutor] November 14, 1974.
Q. [grand juror] Four weeks before filing for bankruptcy?
******
Q. [grand juror] The people you owe were at your mercy to get their money back until like your bankruptcy petition discharged them, but you don’t want to say—
A. Legally discharged, but normally what happens we would renegotiate a note.
Q. [prosecutor] They may or may not be discharged, Mr. Martin. You want to think about that a day or two?
It is readily apparent that improper and prejudicial remarks made by grand jurors were read to the trial jury. In addition improper and prejudicial remarks made by the prosecutors were read to the jury. The record is replete with instances where the defendant was interrupted in his answers or was not given an opportunity to answer. In addition, at one point the prosecutor in effect testified by answering a question posed by a grand juror. If the government’s actions in reading this irrelevant and highly prejudicial testimony to the jury were not intentionally designed to provoke a mistrial request, at a minimum they constitute gross negligence. It can best be described as prosecutorial error undertaken to harass or prejudice the defendant — pros-ecutorial overreaching.
Martin has shown the presence of anxiety, embarrassment and expense caused by his retrial. Under these circumstances we hold that the district court erred in denying Martin’s motion to dismiss the indictment. Prosecutorial overreaching in the reading of the grand jury testimony to the trial jury gave appellant no choice except to move for mistrial and subject himself to the ordeal of another trial. We conclude Martin’s constitutional right not to be twice put in jeopardy has been violated. Accordingly, we reverse appellant’s conviction and direct that the indictment be dismissed.
Reversed.
. The Honorable Terry L. Shell, United States District Judge for the Eastern District of Arkansas.
. The Honorable Paul X Williams, United States District Judge for the Western District of Arkansas, sitting by designation.
. United States Constitution, Amendment V, provides: “No person * * * shall * * * be subject for the same offence to be twice put in jeopardy of life or limb.”
. The trial court, in denying Martin’s Double Jeopardy claim, stated the following: “[W]e find that the government’s errors which led to a mistrial did not amount to intentional misconduct or gross negligence.” The court noted that both of the Assistant United States Attorneys who tried the case for the government submitted affidavits in which they swore that their actions were not intended to abort the trial and that they considered the grand jury testimony admissible evidence relevant to Martin’s intent.
. A persuasive argument can also be made that the following excerpts read to the jury indirectly violated the district court’s ruling on the defendant’s motion in limine:
Q. [prosecutor] See if we can get this straight, Mr. Martin. You are an attorney. You have been to school for many, many years now.
******
Q. You got rid of nineteen thousand dollars — why did you take bankruptcy? ******
Q. If I told you you made deposits of four thousand three hundred and seventeen dollars to your savings account at Iowa State in 73, that wouldn’t hardly jive with your income, would it?
A. No, it wouldn’t.
Q. And the thousand dollars you deposited in the Friendship Savings and Loan in August, 73, that added with the five thousand you placed in the bank in 73.
Q. Where did you get the money?
Q. [grand juror] Is that a checking or savings?
A. We must have got more than that— ******
Q. [prosecutor] You fully Intended to pay back but thought you would wash them off anyway?
A. At that particular time, talking about gross, talking about that, what I was, I was going to have to take care of the family on seven hundred and seventy dollars and pay back that amount of loan.
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:
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songer_usc1
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0
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
R. E. OLSEN et al., Appellants, v. POTLATCH FORESTS, Inc., et al., Appellees.
No. 13155.
United States Court of Appeals Ninth Circuit.
Jan. 6, 1953.
William S. Hawkins and E. L. Miller, Coeur d’Alene, Idaho, for appellants.
Clarence J. Young and Frank C. Mc-Colloch, Portland, Or., Elder, Elder & Smith, R. N. Elder, Coeur d’Alene, Idaho, William A. Babcock, Jr., Portland, Or., for appellees.
Before MATHEWS, HEALY and POPE, Circuit Judges.
PER CURIAM.
On the grounds and for the reasons stated in its opinion Potlatch Forests, Inc., v. International Woodworkers of America, D. C.Idaho, 108 F.Supp. 906, the judgment of the District Court is affirmed.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_casetyp1_7-3-1
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - taxes, patents, copyright".
YOUNG v. COMMISSIONER OF INTERNAL REVENUE. MOORE v. SAME.
No. 6427.
Circuit Court of Appeals, Ninth Circuit.
June 24, 1932.
M. F. Mitchell and George G. Witter, both of Los Angelos, Cal. (Theodore B. Benson, of Washington, D. C., of counsel), for petitioners.
G. A. Youngquist, Asst. Atty. Gen., Sewall Key and John G. Remey, Sp. Assts. to the Atty. Gen. (C. M. Charest, Gen. Counsel, and W. Frank Gibbs, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., of counsel), for respondent.
Before WILBUR and SAWTELLE, Circuit Judges and JAMES, District Judge.
JAMES, District Judge.
Mary, C. Young and Mary Young Moore, mother and daughter, applied to the Federal Board of Tax Appeals for a redetermination of income tax amounts assessed against them by the Commissioner of Internal Revenue for the years 1924 and 1925. The Board sustained the Commissioner, and the matter is brought here on petition for review. The claims were consolidated for hearing and determination by the Board, and the review is presented in the same form.
Petitioners were joint owners in equal interests' of certain real property located on one of the principal business streets in the city of Los Angeles. In the year 1924 they entered into a 99-year lease covering the property, under which the lessee was to erect a business building. Monthly rental of $10,-000 was to be paid from October 1, 1924, to June 30, 1926, and from thence on for the remainder of the term a rental of $20,000 per month was to be paid. At the time of .the .making of the lease, there were on the property several' brick buildings which had .been ereeted by the owners approximately six ye&rs prior thereto. These buildings were demolished to make way for the new structure. .The agreed depreciation cost in 1924 of the plji,structures was $42,215. No salvage resulted from their demolition. IneL dental,! expenses were incurred .by the petitioners in the matter of securing the 99-year lease,-!as follows: Real' estate commission, $50;500;' -‘alttomey’s fees, $5,500; 'certificate of title charges, $4,502.85. One-half of the commission amount was paid in the year 1924, and the. remaining one-half in 1925.
-The taxpayers kept their books and rendered income tax returns on the cash receipts and- disbursements basis. They claimed the right to deduct from gross income amounts in 1924 the full depreciated cost of the buildings which were destroyed, and to deduct in the years 1924 and 1925 the payments made on account of broker’s commission, attorney’s fees, and title certificate cost. The Commissioner held that hone of the items were deductible, but that they should be considered as expense incurred in the procurement of the 99-year lease) and the total amount amortized over the lease term. Taking the years which the leasé had to run, he calculated that each o-f the petitioner's would be entitled to a deduction each year in the sum of $513.59.
The determination of the controversy seems to depend altogether on the solution of the question as to whether, by the acquisition of the long-term lease, the lessors added to their assets, or substituted property for another form of capital assets. If either of these conditions resulted, then the cost of working out the change would be an expense to be classed as a contribution to assets, and would not be immediately deductible as an expense charge against the income account. By section 215(a), paragraph (2), Revenue Act 1924, 43 Stat. 253, 271, 26 USCA § 956(a) (2), it is provided that no deduction shall be made for “any amount paid out for new buildings or for permanent improvements or betterments made to increase the value of any property or estate.”
There is nothing shown in the record as to the size, character, or cost of the new buildings to be erected by the lessee. There is nothing shown as to the amount of income which had theretofore been received from the property. We can well assume that pecuniary advantage and benefit accrued to the lessors under the lease. The buildings demolished were not old. They had been in existence for a comparatively few years; they had depreciated from the original cost of $50,000 by the'amount only of $7,785.
. Provisions of the Treasury regulations (65, art. 142), wherein it is declared that, when a taxpayer buys real estate upon which is located a building which he proceeds to raze with intent to erect another building, no loss for the buildings destroyed shall be claimed as deductible, but that the presumption will be that the property acquired, exclusive of old improvements, equals the purchase price paid,, declare an administrative practice rule of binding effect, Liberty Baking Co. v. Heiner, 37 F.(2d) 703 (C. C. A. 3). But that rule does not by implication exclude eases where the. taxpayer has not the intent at the time he purchases improved property to demolish existing buildings. Each case is left to be judged by its own.facts. And the preliminary provisions of the regulations (65, article 142), which allow deductions for the voluntary removal or demolition of old buildings, will not. control a situation like that which is here presented. There can be no question that, where a landowner finds it -necessary to remove structures unsuitable for further use, he may have a reduction from gross income for the loss. On the other hand, where ho finds it advantageous to remove substantial buildings in order to secure a lease which will result in his having erected on his property a new building, without money outlay on his part for its construction, and to have assured a large rental income for a long term of years, it would seem just and reasonable that the value of the buildings removed be charged as a contribution to the cost of securing his lease, and as a part of the investment then made for that purpose. Under the Commissioner’s ruling, the taxpayers will have returned to them the total of that value and the other expenses when the lease term is ended. (See Regulations 65, arts. 161-164.)
The decisions of the Board of Tax Appeals on this subject have not been consistent. Its later holdings have agreed with the order which the Commissioner entered in this case, although a former decision, made in the case of Robert McNeill v. Com’r, 16 B. T. A. 479, announced an opposite conclusion.
The Circuit Courts of Appeals have sustained the • Commissioner where facts similar to those presented here were shown. In Anahma Realty Corporation v. Commissioner, etc., 42 F.(2d) 128 (C. C. A. 2), it appeared that the corporation taxpayer in January of 1920 acquired certain real property on which there were buildings under lease to tenants. It continued to let the buildings to such tenants and collect rentals until May, 1920. It then entered into a lease for the term of twenty-one years with a corporation, under the terms of which it was agreed that the old buildings should be demolished and that the new lessee should erect an office building on the property. The old buildings at the time were assessed for local taxation at a valuation of $204,000. The taxpayer claimed a deduction on account of loss as for the value of the buildings. The deduction was disallowed. The ruling was affirmed. Tbe court in its opinion said that there was compensating value (the lease) for the loss of the buildings; that the cost of acquiring an asset was not deductible as a business expense for the year in which it was paid or incurred.
In Central Bank Block Association v. Commissioner, 57 F.(2d) 5 (C. C. A. 5), the taxpayer had made a lease of property for a period of fifty years. He paid a largo commission amount to an agent for negotiating the lease, and sought to deduct the installments as paid from gross income for appropriate years. The Commissioner rejected the claim in its total, but apportioned one-fiftieth of the amount as an allowance against each year’s income. The Circuit Court of Appeals agreed with the taxing officers, holding that the expense for the account referred to was not deductible as ordinary and necessary expenses paid or incurred during the taxable year in carrying on a trade or business.
In Bonwit Teller & Co., 53 F.(2d) 381 (C. C. A. 2), the court considered a like claim for deduction where a long-term lease had been secured. The court said that the transaction in effect was an exchange of the leasehold estate for the lessee’s obligations. A brokerage fee paid for negotiating the lease was held not deductible from gross income. •
No reason is found to distinguish the holdings of the courts as between the case of a lessee who subleases and a case where the owner of the land enters into the lease with the original or first tenant.
The orders of the Board of Tax Appeals are affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - taxes, patents, copyright"?
A. state or local tax
B. federal taxation - individual income tax (includes taxes of individuals, fiduciaries, & estates)
C. federal tax - business income tax (includes corporate and parnership)
D. federal tax - excess profits
E. federal estate and gift tax
F. federal tax - other
G. patents
H. copyrights
I. trademarks
J. trade secrets, personal intellectual property
Answer:
|
songer_method
|
I
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
O’SHEA v. UNITED STATES.
No. 7620.
Circuit Court of Appeals, Sixth Circuit.
Dec. 7, 1937.
John R. Watkins, of Detroit, Mich. (David Polasky, of Detroit, Mich., on the brief), for appellant.
Frank G. Schemanske, of Detroit, Mich. (John C. Lehr, of Detroit, Mich., on the brief), for the United States.
Before HICKS and ALLEN, Circuit Judges, and NEVIN, District Judge.
HICKS, Circuit Judge.
From April, 1933, to January 14, 1936, appellant was assistant vice president of the National Bank of Detroit (a member of the Chicago Federal Reserve Bank), and from the last-mentioned date until March 15, 1936, he was vice president. He was convicted upon all counts (eighteen in number) of an indictment charging him with misapplication of the funds of the bank. The moneys misapplied were on deposit to the credit of the “City of Detroit Trust Fund” and totalled $241,950.
In count 1 the misapplication is alleged to have been accomplished by the use of a certified check in the sum of $32,000 carrying the forged indorsement of W. J. Cur-ran, comptroller of the city of Detroit, and the indorsement of H. M. Tyler, an employee in the office of the comptroller.
In count 2 the misapplication is alleged to have been accomplished by the use of a check in the sum of $14,000 drawn upon the trust fund account and carrying the forged signature of W. J. Curran, comptroller, as payee, the forged indorsement of W. J. Curran, comptroller, and the genuine indorsement of H. M. Tyler.
In the remaining counts the misapplication is alleged to have been accomplished as in count 2, the only difference being in the dates and amounts of the checks.
No question is raised as to the sufficiency of the evidence to support the verdict upon the first count, and the judgment thereon must be affirmed unless there was prejudicial error in the introduction of testimony.
It is urged that appellant was entitled to a directed verdict upon counts 2 to 18, because there was no competent evidence that the signatures of W. J. Curran, comptroller, as payee, and the indorsements of W. J. Curran, comptroller, upon the reverse side of the checks were forgeries as alleged. If this position is not sustained and if there is no reversible error in the introduction of other testimony, the judgment upon these counts must likewise be affirmed.
The checks described in counts 2 to 18 were not introduced in evidence. Appellee supplied their contents by secondary evidence upon the ground that they were not procurable. Appellant’s point is that appellee did not make a sufficient showing of its inability to produce the checks to justify the introduction of the secondary evidence. This was a matter to be determined by the judge in the exercise of his discretion, and by “discretion” of course is meant judicial discretion.
These checks, together with the bank statements reflecting their payment, were delivered either personally or by messenger to H. M. Tyler, by direction of appellant, who had general supervision over the. trust fund account. They were important links in the chain of circumstances tending to implicate both appellant and Tyler0in the losses from the Detroit Trust Fund deposits. When the losses were disclosed, Tyler killed himself. There is a reasonable inference that he destroyed the checks— at least they were never found. In due course they should have been found in the check files of the city treasurer’s office. A thorough but ineffectual search was made through all the check files, desks, and records of that office where they might possibly have been.
On March 13, 1936, the day following Tyler’s death, a search of his desk and room in the comptroller’s office was instituted and was not completed for several days. Canceled checks on the trust fund account were looked for especially but none were found. Upon such showing there was no error in the admission of secondary evidence of the contents of the checks described in counts 2 to 18. The admission of this secondary evidence, before the court finally concluded that it was the best evidence the nature of the case would admit of, cannot be regarded as prejudicial.
Upon the hypothesis, that the loss of the checks had not been sufficiently established, appellant insists that the introduction of certain records of the bank, to wit, tellers’ blotters (Exhibits 39-45, 50-59) and permanent ledger account sheets (Exhibits 66-68, 70-78, 80-85) as secondary evidence of their contents, was error. But these blotters and ledger sheets were original records of the bank made in due course of business. The blotters were identified by the tellers who made them and the ledger sheets by the officer who had them in charge. These records were competent as 'such, the blotters as tending to show that the checks had been cashed, and the ledger sheets that the face amounts of the checks had been withdrawn from the trust fund deposit. See Act No. 15, Pub.Acts Mich.1935; Johnson v. U. S., 89 F.2d 913, 915 (C.C.A.6); American Surety Co. v. Pauly, 72 F. 470, 478 (C.C.A.2).
For the same reason, permanent ledger sheet Exhibit 69 was admissible. It was an original record and relevant to the issues under count 1.
It is urged that certain carbon copies of interoffice memoranda (Exhibits 3; 4, 5, 20, 21, 22, 23 and 24) were inadmissible because the showing that the originals were not procurable was insufficient. Treating these carbons as copies, the originals were addressed and delivered to appellant personally or left upon his desk. The Fifth Amendment protected him against any demand upon him in the presence of the jury to produce the originals [McKnight v. U. S., 115 F. 972, 976 (C.C.A.6)], and the copies were therefore the best available evidence of the contents of the originals. To support their introduction, evidence was introduced of a diligent search not only of appellant’s desk but of the records and hies of the bank. There was therefore no error in the introduction of the copies, even treated as secondary evidence.
But carbon copies may-not necessarily be treated as secondary. They are not copied from the originals, but they and the- originals are made by one mechanical operation. The carbons are nothing more, nor less, than duplicate originals. Wharton’s Criminal Evidence, vol. 1 (10th Ed.) p. 385.
Mercedes Dimmer testified that she was employed by appellánt as secretary from some time in 1930 until March, 1932, when she resigned; that in December, 1934, she opened a brokerage account at the request of appellant; that she operated from her home; that shortly after this date she opened two other accounts; that appellant first gave her $2,000 which she kept in a safety deposit box; that she made one purchase toward the end of December, . 1934; one hundred and ten or one hundred and fifteen purchases in 1935 and around twenty-five purchases in 1936, the last one being made on March 10, 1936; that during this period appellant gave her between $90,000 and $1Q0,000 always in cash; that, depending upon the activity of the markets, he would bring the money to her house at intervals and in varying amounts; that she kept the money in her safety deposit box until she used it; that the highest amount he brought at any one time was probably $4,000; that appellant asked her not to come to the bank except as a customer; that during the fifteen months the accounts were operated she received $1,650 in salary, $13,500 in profits, and still had an interest in the undivided profits.
On February 16, 1932, appellant owed Henry Whiting $26,875, which he paid with money obtained from H. M. Tyler.
Appellant contends that the testimony of Miss .Dimmer was inadmissible because it established no connection between the moneys furnished her and those lost by the bank. The case was one for circumstantial evidence. Evidence tending to show that appellant was destitute as late as February, 1932, and that he secretively furnished large amounts of money to Miss Dimmer from December, 1934, until March, 1936, substantially the same period during which the misapplications took place, is relevant. Such evidence tends to show that appellant was in unauthorized possession of the bank’s money. Wigmore on Ev. (2d Ed.) vol. 1, § 154; People v. Connolly, 253 N.Y. 330, 340, 171 N.E. 393; Commonwealth v. Coyne, 228 Mass. 269, 117 N.E. 337, 3 A.L.R. 1209; Commonwealth v. Mulrey, 170 Mass. 103, 110, 49 N.E. 91.
Williams v. United States, 168 U.S. 382, 18 S.Ct. 92, 42 L.Ed. 509, relied upon by appellant, carries little analogy. The indictment in that case was for a violation of the Chinese Exclusion Acts and in no wise involved a misapplication of bank funds.
Appellee introduced evidence tending to show that on February 16, 1932, appellant paid his debt of $26,875 to Whiting by a cashier’s check which he purchased from ■the Guardian National Bank of Commerce of which he was then vice president and for which he gave a check upon the same bank signed by Harry M. Tyler, receiver, and drawn upon Tyler’s account as receiver in the case of City of Detroit v. Alex F. Lewis. We do not go into this transaction in detail. It is sufficient to say that it carries a strong inference that appellant knew he was the beneficiary of funds wrongfully misapplied by Tyler. Tyler had no right of course to use receiver’s funds for such purpose. Appellant insists that evidence touching this transaction was wholly unrelated to the offenses charged in the indictment and therefore 'inadmissible. Appellant was not a witness in his own behalf but we gather his defense was that, assuming Tyler’s guilt, which is clear, his connection with Tyler was not intentionally dishonest but was at most the result of mere negligence or oversight.
The evidence touching this transaction of February 16, 1932, was relevant, not only as tending to refute appellant’s claim of an innocent motive but to establish a fraudulent scheme between appellant ■ and Tyler to defraud the bank.
For the same reason the evidence tending to show appellant’s connection with the transaction of August 29, 1935, by which $106,792.76 of “City of Detroit Trust Funds” were unlawfully applied to settle the claim of the city of Detroit for the defalcations of Tyler as receiver in the case of the City of Detroit v. Alex. F. Lewis, was admissible.
The bank’s records indicate that on August 28, 1935, Tyler as receiver for the Alex. F. Lewis estate, had on deposit $1,-841.60 only; that on the next day he withdrew this balance in the form of a cashier’s check on the savings department of the bank and payable to himself; that on August 30 he made' a requisition for a ' cashier’s check on the bank for $108,634.36, the amount of his shortage as receiver, which requisition bears the initials of appellant^ that to purchase this check he indorsed to the bank the check for $1841.60, his indorsement carrying appellant’s initials, and for the balance he gave a check upon the bank’s commercial account for $106,792.76; that thereupon appellant issued a cashier’s check for $108,634.36, the total amount of Tyler’s default, payable to Albert E. Cobo, city treasurer, which was deposited in the Commonwealth-Commercial State Bank, to the credit of Cobo, city treasurer; that the amount of the check for $106,792.76 was withdrawn from the City of Detroit Trust Fund accqunt in the bank, over which appellant had supervision. After a diligent search for this check, appellee was unable to produce it. The same showing was made with reference to it as was made in regard to appellee’s inability to produce the checks described in counts 2 to 18.
We think this evidence was admissible for its bearing upon the question as to whether there was concert of action between appellant and Tyler in this transaction and as tending to overthrow appellant’s claim of innocence or good faith in his relations with Tyler. Shea v. U. S., 236 F. 97, 102 (C.C.A.6); Grant v. U. S., 268 F. 443, 448 (C.C.A.6); Worden v. U. S., 204 F. 1, 5 (C.C.A.6); Johnson et al. v. U. S., 82 F.2d 500, 505 (C.C.A.6).
Finally, there is no merit in the contention that appellant should have had a directed verdict upon counts 2 to 18 upon the ground that there was no competent evidence that the signature and indorsement of W. J. Curran, comptroller, upon the checks described in these counts were forgeries as alleged. These checks, as hereinbefore shown, were not available and secondary evidence thereof was necessary. It was shown that a certain type or form of check (Exhibit 38) was used. Curran testified that he neither signed nor authorized any one to sign any such check. The objection is that this testimony amounted to evidence that Curran’s signatures on the checks by which the misapplications were accomplished were forgeries, and that, in the absence of the checks themselves, he should not be permitted so to testify. But we are not dealing with an indictment for forgery, and we need not determine what the applicable rule of law would be in such case. We think that Curran’s testimony, in connection with other substantial evidence, indicating that' appellant knew not only that Curran’s signature was unauthorized, but if authorized, was insufficient of itself to justify withdrawals from the trust fund account, was relevant and important.
The judgment of the District Court is affirmed.
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer:
|
sc_adminaction
|
033
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
MICHIGAN, et al., Petitioners
v.
ENVIRONMENTAL PROTECTION AGENCY, et al.
Utility Air Regulatory Group, Petitioner
v.
Environmental Protection Agency, et al.
National Mining Association, Petitioner
v.
Environmental Protection Agency, et al.
Nos. 14-46
14-47
14-49.
Supreme Court of the United States
Argued March 25, 2015.
Decided June 29, 2015.
Aaron D. Lindstrom, Solicitor General, for State Petitioners.
F. William Brownell, for Industry Petitioners and Respondents in support.
Donald B. Verrilli, Jr., Solicitor General, for the Federal Respondents.
Paul M. Smith, Washington, DC, for Industry Respondents.
Carroll W. McGuffey III, Justin T. Wong, Troutman Sanders LLP, Atlanta, GA, Peter S. Glaser, Counsel of Record, Troutman Sanders LLP, Washington, DC, for Petitioner National Mining Association.
F. William Brownell, Counsel of Record, Henry V. Nickel, Lee B. Zeugin, Elizabeth L. Horner, Hunton & Williams LLP, Washington, DC, for Petitioner.
Leslie Sue Ritts, Ritts Law Group, PLLC, Alexandria, VA, for Petitioner American Public Power Association.
Bart E. Cassidy, Katherine L. Vaccaro, Manko, Gold, Katcher & Fox, LLP, Bala Cynwyd, PA, for Petitioner ARIPPA.
Michael Nasi, Jackson Walker LLP, Austin, TX, for Petitioner Gulf Coast Lignite Coalition.
Dennis Lane, Stinson Leonard Street LLP, Washington, DC, Parthenia B. Evans, Stinson Leonard Street LLP, Kansas City, MO, for Petitioner Kansas City Board of Public Utilities.
Eric Groten, Vinson & Elkins LLP, Austin, TX, for Petitioner White Stallion Energy Center, LLC.
Maura Healey, Attorney General of Massachusetts, Melissa Hoffer, Tracy L. Triplett, Assistant Attorneys General, Environmental Protection Division, Boston, MA, Kamala D. Harris, Attorney General of California, Oakland, CA, George Jepsen, Attorney General of Connecticut, Hartford, CT, Matthew P. Denn, Attorney General of Delaware, Wilmington, DE, Lisa Madigan, Attorney General of Illinois, Chicago, IL, Thomas J. Miller, Attorney General of Iowa, Des Moines, IA, Janet T. Mills, Attorney General of Maine, Augusta, ME, Brian E. Frosh, Attorney General of Maryland, Baltimore, MD, Lori Swanson, Attorney General of Minnesota, St. Paul, MN, Joseph A. Foster, Attorney General of New Hampshire, Concord, NH, Hector Balderas, Attorney General of New Mexico, Santa Fe, NM, Eric T. Schneiderman, Attorney General of New York, Albany, NY, Roy Cooper, Attorney General of North Carolina, Raleigh, NC, Ellen F. Rosenblum, Attorney General of Oregon, Salem, OR, Peter F. Kilmartin, Attorney General of Rhode Island, Providence, RI, William H. Sorrell, Attorney General of Vermont, Montpelier, VT, Karl A. Racine, Attorney General for the District of Columbia, Washington, DC, George A. Nilson, City Solicitor for the City of Baltimore, Baltimore, MD, Stephen R. Patton, Corporation Counsel of the City of Chicago, Chicago, IL, Michael A. Siragusa, County Attorney for the County of Erie, Buffalo, NY, Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Respondents.
Neil D. Gordon, Assistant Attorney General, Environment, Natural Resources, and Agriculture Division, Bill Schuette, Michigan Attorney General, Aaron D. Lindstrom, Solicitor General, Counsel of Record, Lansing, MI, for Petitioners.
Luther Strange, Attorney General, State of Alabama, Office of the Attorney General, Montgomery, AL, for Petitioner State of Alabama.
Michael C. Geraghty, Attorney General, Steven E. Mulder, Assistant Attorney General, Anchorage, AK, for Petitioner State of Alaska.
Mark Brnovich, Attorney General, James T. Skardon, Assistant Attorney General, Environmental Enforcement Section, Phoenix, AZ, Counsel for Petitioner State of Arizona.
Leslie Rutledge, Attorney General, Attorney General, Little Rock, AR, for Petitioner State of Arkansas, ex rel. Dustin McDaniel, Attorney General.
Lawrence G. Wasden, Attorney General, Boise, ID, for Petitioner State of Idaho,
Gregory F. Zoeller, Attorney General, Valerie Tachtiris, Deputy Attorney General, Office of the Attorney General, Indianapolis, IN, for Petitioner State of Indiana.
Michael Bousselot, Des Moines, for Petitioner Terry E. Branstad, Governor of the State of Iowa on behalf of the People of Iowa.
Derek Schmidt, Attorney General, Jeffrey A. Chanay, Chief Deputy Attorney General, Office of the Attorney General of Kansas, Topeka, KS, for Petitioner State of Kansas.
Jack Conway, Attorney General, Frankfort, KY, for Petitioner Jack Conway.
Jim Hood, Attorney General, Harold E. Pizzetta III, Assistant Attorney General, Director, Civil Litigation Division, Jackson, MS, for Petitioner State of Mississippi.
Chris Koster, Attorney General, James R. Layton, Jefferson City, MO, for Petitioner State of Missouri.
Doug Peterson, Attorney General, Dave Bydalek, Chief Deputy Attorney General, Blake Johnson, Assistant Attorney General, Lincoln, NE, for Petitioner State of Nebraska.
Wayne Stenehjem, Attorney General, Margaret I. Olson, Assistant Attorney General, Office of Attorney General, Bismarck, ND, for Petitioner State of North Dakota.
Michael DeWine, Attorney General, Columbus, OH, for Petitioner State of Ohio.
E. Scott Pruitt, Attorney General, Patrick Wyrick, Solicitor General, P. Clayton Eubanks, Deputy Solicitor General, Office of the Attorney General of Oklahoma, Oklahoma City, OK, for Petitioner State of Oklahoma.
Alan Wilson, Attorney General, Robert D. Cook, Solicitor General, James Emory Smith, Jr., Deputy Attorney General, Office of the Attorney General, Columbia, SC, for Petitioner State of South Carolina.
Ken Paxton, Attorney General, Charles E. Roy, First Assistant Attorney General, James E. Davis, Deputy Attorney General for Civil Litigation, Jon Niermann, Chief, Environmental Protection Division, Mark Walters, Assistant Attorney General, Mary E. Smith, Assistant Attorney General, Office of the Attorney General of Texas, Environmental Protection Division, Austin, TX, for Petitioners State of Texas, Texas Commission on Environmental Quality, Texas Public Utility Commission, and Railroad Commission of Texas, Sean D. Reyes, Attorney General, Salt Lake City, UT, for Petitioner State of Utah.
Patrick Morrisey, Attorney General, Charleston, WV, for Petitioner State of West Virginia,
Peter K. Michael, Attorney General, Michael J. McGrady, Senior Assistant Attorney General, Cheyenne, WY, for Petitioner State of Wyoming.
Brendan K. Collins, Counsel of Record, Robert B. McKinstry, Jr., Ronald M. Varnum, Lorene L. Boudreau, Ballard Spahr LLP, Philadelphia, PA, Paul M. Smith, Matthew E. Price, Erica L. Ross, Jenner & Block LLP, Washington, DC, for Industry Respondents.
Sanjay Narayan, Sierra Club, San Francisco, CA, for Respondent Sierra Club.
James S. Pew, Neil E. Gormley, Earthjustice, Washington, D.C., for Respondent Chesapeake, Bay Foundation Clean Air Council, National Association for the Advancement of Colored People, Sierra Club, and Waterkeeper Alliance,
Sean H. Donahue, Counsel of Record, David T. Goldberg, Donahue & Goldberg, LLP, Washington, D.C., Vickie L. Patton, Graham McCahan, Tomás Carbonell, Environmental Defense Fund, Boulder, CO, for Respondent Environmental Defense Fund.
John Suttles, Southern Environmental Law Center, Chapel Hill, NC, for Respondent American Academy of Pediatrics, American Lung Association, American Nurses Association, American Public Health Association and Physicians for Social Responsibility.
Ann Brewster Weeks, Darin T. Schroeder, Clean Air Task Force, Boston, MA, for Respondent Citizens for Pennsylvania's Future, Conservation Law Foundation, Environment America, Izaak Walton League of America, Natura, Resources Council of Maine, and Ohio Environmental Council.
John D. Walke, Natural Resources Defense Council, Washington, D.C., for Respondent Natural Resource Defense Council.
Opinion
Justice SCALIAdelivered the opinion of the Court.
The Clean Air Act directs the Environmental Protection Agency to regulate emissions of hazardous air pollutants from power plants if the Agency finds regulation "appropriate and necessary." We must decide whether it was reasonable for EPA to refuse to consider cost when making this finding.
I
The Clean Air Act establishes a series of regulatory programs to control air pollution from stationary sources (such as refineries and factories) and moving sources (such as cars and airplanes). 69 Stat. 322, as amended, 42 U.S.C. §§ 7401-7671q. One of these is the National Emissions Standards for Hazardous Air Pollutants Program-the hazardous-air-pollutants program, for short. Established in its current form by the Clean Air Act Amendments of 1990, 104 Stat. 2531, this program targets for regulation stationary-source emissions of more than 180 specified "hazardous air pollutants." § 7412(b).
For stationary sources in general, the applicability of the program depends in part on how much pollution the source emits. A source that emits more than 10 tons of a single pollutant or more than 25 tons of a combination of pollutants per year is called a major source. § 7412(a)(1). EPA is required to regulate all major sources under the program. § 7412(c)(1)-(2). A source whose emissions do not cross the just-mentioned thresholds is called an area source. § 7412(a)(2). The Agency is required to regulate an area source under the program if it "presents a threat of adverse effects to human health or the environment... warranting regulation." § 7412(c)(3).
At the same time, Congress established a unique procedure to determine the applicability of the program to fossil-fuel-fired power plants. The Act refers to these plants as electric utility steam generating units, but we will simply call them power plants. Quite apart from the hazardous-air-pollutants program, the Clean Air Act Amendments of 1990 subjected power plants to various regulatory requirements. The parties agree that these requirements were expected to have the collateral effect of reducing power plants' emissions of hazardous air pollutants, although the extent of the reduction was unclear. Congress directed the Agency to "perform a study of the hazards to public health reasonably anticipated to occur as a result of emissions by [power plants] of [hazardous air pollutants] after imposition of the requirements of this chapter." § 7412(n)(1)(A). If the Agency "finds... regulation is appropriate and necessary after considering the results of the study," it "shall regulate [power plants] under [§ 7412]." Ibid.EPA has interpreted the Act to mean that power plants become subject to regulation on the same terms as ordinary major and area sources, see 77 Fed.Reg. 9330 (2012), and we assume without deciding that it was correct to do so.
And what are those terms? EPA must first divide sources covered by the program into categories and subcategories in accordance with statutory criteria. § 7412(c)(1). For each category or subcategory, the Agency must promulgate certain minimum emission regulations, known as floor standards. § 7412(d)(1), (3). The statute generally calibrates the floor standards to reflect the emissions limitations already achieved by the best-performing 12% of sources within the category or subcategory. § 7412(d)(3). In some circumstances, the Agency may also impose more stringent emission regulations, known as beyond-the-floor standards. The statute expressly requires the Agency to consider cost (alongside other specified factors) when imposing beyond-the-floor standards. § 7412(d)(2).
EPA completed the study required by § 7412(n)(1)(A)in 1998, 65 Fed.Reg. 79826 (2000), and concluded that regulation of coal- and oil-fired power plants was "appropriate and necessary" in 2000, id.,at 79830. In 2012, it reaffirmed the appropriate-and-necessary finding, divided power plants into subcategories, and promulgated floor standards. The Agency found regulation "appropriate" because (1) power plants' emissions of mercury and other hazardous air pollutants posed risks to human health and the environment and (2) controls were available to reduce these emissions. 77 Fed.Reg. 9363. It found regulation "necessary" because the imposition of the Act's other requirements did not eliminate these risks. Ibid.EPA concluded that "costs should not be considered" when deciding whether power plants should be regulated under § 7412. Id.,at 9326.
In accordance with Executive Order, the Agency issued a "Regulatory Impact Analysis" alongside its regulation. This analysis estimated that the regulation would force power plants to bear costs of $9.6 billion per year. Id.,at 9306. The Agency could not fully quantify the benefits of reducing power plants' emissions of hazardous air pollutants; to the extent it could, it estimated that these benefits were worth $4 to $6 million per year.Ibid.The costs to power plants were thus between 1,600 and 2,400 times as great as the quantifiable benefits from reduced emissions of hazardous air pollutants. The Agency continued that its regulations would have ancillary benefits-including cutting power plants' emissions of particulate matter and sulfur dioxide, substances that are not covered by the hazardous-air-pollutants program. Although the Agency's appropriate-and-necessary finding did not rest on these ancillary effects, id.,at 9320, the regulatory impact analysis took them into account, increasing the Agency's estimate of the quantifiable benefits of its regulation to $37 to $90 billion per year, id.,at 9306. EPA concedes that the regulatory impact analysis "played no role" in its appropriate-and-necessary finding. Brief for Federal Respondents 14.
Petitioners (who include 23 States) sought review of EPA's rule in the Court of Appeals for the D.C. Circuit. As relevant here, they challenged the Agency's refusal to consider cost when deciding whether to regulate power plants. The Court of Appeals upheld the Agency's decision not to consider cost, with Judge Kavanaugh concurring in part and dissenting in part. White Stallion Energy Center, LLC v. EPA,748 F.3d 1222 (2014)(per curiam). We granted certiorari. 574 U.S. ----, 135 S.Ct. 702, 703, 190 L.Ed.2d 434 (2014).
II
Federal administrative agencies are required to engage in "reasoned decisionmaking." Allentown Mack Sales & Service, Inc. v. NLRB,522 U.S. 359, 374, 118 S.Ct. 818, 139 L.Ed.2d 797 (1998)(internal quotation marks omitted). "Not only must an agency's decreed result be within the scope of its lawful authority, but the process by which it reaches that result must be logical and rational." Ibid.It follows that agency action is lawful only if it rests "on a consideration of the relevant factors." Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co.,463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)(internal quotation marks omitted).
EPA's decision to regulate power plants under § 7412allowed the Agency to reduce power plants' emissions of hazardous air pollutants and thus to improve public health and the environment. But the decision also ultimately cost power plants, according to the Agency's own estimate, nearly $10 billion a year. EPA refused to consider whether the costs of its decision outweighed the benefits. The Agency gave cost no thought at all,because it considered cost irrelevant to its initial decision to regulate.
EPA's disregard of cost rested on its interpretation of § 7412(n)(1)(A), which, to repeat, directs the Agency to regulate power plants if it "finds such regulation is appropriate and necessary." The Agency accepts that it couldhave interpreted this provision to mean that cost is relevant to the decision to add power plants to the program. Tr. of Oral Arg. 44. But it chose to read the statute to mean that cost makes no difference to the initial decision to regulate. See 76 Fed.Reg. 24988 (2011)("We further interpret the term 'appropriate' to not allow for the consideration of costs"); 77 Fed.Reg. 9327("Cost does not have to be read into the definition of 'appropriate' ").
We review this interpretation under the standard set out in Chevron U.S.A.
Inc. v. Natural Resources Defense Council, Inc.,467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Chevrondirects courts to accept an agency's reasonable resolution of an ambiguity in a statute that the agency administers.Id.,at 842-843, 104 S.Ct. 2778. Even under this deferential standard, however, "agencies must operate within the bounds of reasonable interpretation." Utility Air Regulatory Group v. EPA,573 U.S. ----, ----, 134 S.Ct. 2427, 2442, 189 L.Ed.2d 372 (2014)(internal quotation marks omitted). EPA strayed far beyond those bounds when it read § 7412(n)(1)to mean that it could ignore cost when deciding whether to regulate power plants.
A
The Clean Air Act treats power plants differently from other sources for purposes of the hazardous-air-pollutants program. Elsewhere in § 7412, Congress established cabined criteria for EPA to apply when deciding whether to include sources in the program. It required the Agency to regulate sources whose emissions exceed specified numerical thresholds (major sources). It also required the Agency to regulate sources whose emissions fall short of these thresholds (area sources) if they "presen[t] a threat of adverse effects to human health or the environment... warranting regulation." § 7412(c)(3). In stark contrast, Congress instructed EPA to add power plants to the program if (but only if) the Agency finds regulation "appropriate and necessary." § 7412(n)(1)(A). One does not need to open up a dictionary in order to realize the capaciousness of this phrase. In particular, "appropriate" is "the classic broad and all-encompassing term that naturally and traditionally includes consideration of all the relevant factors." 748 F.3d, at 1266(opinion of Kavanaugh, J.). Although this term leaves agencies with flexibility, an agency may not "entirely fai[l] to consider an important aspect of the problem" when deciding whether regulation is appropriate. State Farm, supra,at 43, 103 S.Ct. 2856.
Read naturally in the present context, the phrase "appropriate and necessary" requires at least some attention to cost. One would not say that it is even rational, never mind "appropriate," to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits. In addition, "cost" includes more than the expense of complying with regulations; any disadvantage could be termed a cost. EPA's interpretation precludes the Agency from considering anytype of cost-including, for instance, harms that regulation might do to human health or the environment. The Government concedes that if the Agency were to find that emissions from power plants do damage to human health, but that the technologies needed to eliminate these emissions do even more damage to human health, it would stilldeem regulation appropriate. See Tr. of Oral Arg. 70. No regulation is "appropriate" if it does significantly more harm than good.
There are undoubtedly settings in which the phrase "appropriate and necessary" does not encompass cost. But this is not one of them. Section 7412(n)(1)(A)directs EPA to determine whether "regulationis appropriate and necessary." (Emphasis added.) Agencies have long treated cost as a centrally relevant factor when deciding whether to regulate. Consideration of cost reflects the understanding that reasonable regulation ordinarily requires paying attention to the advantages andthe disadvantages of agency decisions. It also reflects the reality that "too much wasteful expenditure devoted to one problem may well mean considerably fewer resources available to deal effectively with other (perhaps more serious) problems." Entergy Corp. v. Riverkeeper, Inc.,556 U.S. 208, 233, 129 S.Ct. 1498, 173 L.Ed.2d 369 (2009)(BREYER, J., concurring in part and dissenting in part). Against the backdrop of this established administrative practice, it is unreasonable to read an instruction to an administrative agency to determine whether "regulation is appropriate and necessary" as an invitation to ignore cost.
Statutory context reinforces the relevance of cost. The procedures governing power plants that we consider today appear in § 7412(n)(1), which bears the caption "Electric utility steam generating units." In subparagraph (A), the part of the law that has occupied our attention so far, Congress required EPA to study the hazards to public health posed by power plants and to determine whether regulation is appropriate and necessary. But in subparagraphs (B) and (C), Congress called for two additional studies. One of them, a study into mercury emissions from power plants and other sources, must consider "the health and environmental effects of such emissions, technologies which are available to control such emissions, and the costs of such technologies." § 7412(n)(1)(B)(emphasis added). This directive to EPA to study cost is a further indication of the relevance of cost to the decision to regulate.
In an effort to minimize this express reference to cost, EPA now argues that § 7412(n)(1)(A)requires it to consider only the study mandated by that provision, not the separate mercury study, before deciding whether to regulate power plants. But when adopting the regulations before us, the Agency insisted that the provisions concerning all three studies "provide a framework for [EPA's] determination of whether to regulate [power plants]." 76 Fed.Reg. 24987. It therefore decided "to interpret the scope of the appropriate and necessary finding in the context of all three studies." 77 Fed.Reg. 9325(emphasis added). For example:
• EPA considered environmental effects relevant to the appropriate-and-necessary finding. It deemed the mercury study's reference to this factor "direct evidence that Congress was concerned with environmental effects." 76 Fed.Reg. 24987.
• EPA considered availability of controls relevant to the appropriate-and-necessary finding. It thought that doing so was "consistent with" the mercury study's reference to availability of controls. Id., at 24989.
• EPA concluded that regulation of power plants would be appropriate and necessary even if a single pollutant emitted by them posed a hazard to health or the environment. It believed that "Congress' focus" on a single pollutant in the mercury study "support[ed]" this interpretation. Ibid.
EPA has not explained why § 7412(n)(1)(B)'s reference to "environmental effects... and... costs" provides "direct evidence that Congress was concerned with environmental effects," but not "direct evidence" that it was concerned with cost. Chevronallows agencies to choose among competing reasonable interpretations of a statute; it does not license interpretive gerrymanders under which an agency keeps parts of statutory context it likes while throwing away parts it does not.
B
EPA identifies a handful of reasons to interpret § 7412(n)(1)(A)to mean that cost is irrelevant to the initial decision to regulate. We find those reasons unpersuasive.
EPA points out that other parts of the Clean Air Act expressly mention cost, while § 7412(n)(1)(A)does not. But this observation shows only that § 7412(n)(1)(A)'s broad reference to appropriateness encompasses multiple relevant factors (which include but are not limited to cost); other provisions' specific references to cost encompass just cost. It is unreasonable to infer that, by expressly making cost relevant to other decisions, the Act implicitly makes cost irrelevant to the appropriateness of regulating power plants. (By way of analogy, the Fourth Amendment's Reasonableness Clause requires searches to be "[r]easonable," while its Warrant Clause requires warrants to be supported by "probable cause." Nobody would argue that, by expressly making level of suspicion relevant to the validity of a warrant, the Fourth Amendment implicitly makes level of suspicion categorically irrelevantto the reasonableness of a search. To the contrary, all would agree that the expansive word "reasonable" encompasses degree of suspicion alongside other relevant circumstances.) Other parts of the Clean Air Act also expressly mention environmental effects, while § 7412(n)(1)(A)does not. Yet that did not stop EPA from deeming environmental effects relevant to the appropriateness of regulating power plants.
Along similar lines, EPA seeks support in this Court's decision in Whitman v. American Trucking Assns., Inc.,531 U.S. 457, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001). There, the Court addressed a provision of the Clean Air Act requiring EPA to set ambient air quality standards at levels "requisite to protect the public health" with an "adequate margin of safety." 42 U.S.C. § 7409(b). Read naturally, that discrete criterion does not encompass cost; it encompasses health and safety. The Court refused to read that provision as carrying with it an implicit authorization to consider cost, in part because authority to consider cost had "elsewhere, and so often, been expressly granted." 531 U.S., at 467, 121 S.Ct. 903. American Truckingthus establishes the modest principle that where the Clean Air Act expressly directs EPA to regulate on the basis of a factor that on its face does not include cost, the Act normally should not be read as implicitly allowing the Agency to consider cost anyway. That principle has no application here. "Appropriate and necessary" is a far more comprehensive criterion than "requisite to protect the public health"; read fairly and in context, as we have explained, the term plainly subsumes consideration of cost.
Turning to the mechanics of the hazardous-air-pollutants program, EPA argues that it need not consider cost when first deciding whetherto regulate power plants because it can consider cost later when deciding how muchto regulate them. The question before us, however, is the meaning of the "appropriate and necessary" standard that governs the initial decision to regulate. And as we have discussed, context establishes that this expansive standard encompasses cost. Cost may become relevant again at a later stage of the regulatory process, but that possibility does not establish its irrelevance at thisstage. In addition, once the Agency decides to regulate power plants, it must promulgate certain minimum or floor standards no matter the cost (here, nearly $10 billion a year); the Agency may consider cost only when imposing regulations beyondthese minimum standards. By EPA's logic, someone could decide whether it is "appropriate" to buy a Ferrari without thinking about cost, because he plans to think about cost later when deciding whether to upgrade the sound system.
EPA argues that the Clean Air Act makes cost irrelevant to the initial decision to regulate sources other than power plants. The Agency claims that it is reasonable to interpret § 7412(n)(1)(A)in a way that "harmonizes" the program's treatment of power plants with its treatment of other sources. This line of reasoning overlooks the whole point of having a separate provision about power plants: treating power plants differentlyfrom other stationary sources. Congress crafted narrow standards for EPA to apply when deciding whether to regulate other sources; in general, these standards concern the volume of pollution emitted by the source, § 7412(c)(1), and the threat posed by the source "to human health or the environment," § 7412(c)(3). But Congress wrote the provision before us more expansively, directing the Agency to regulate power plants if "appropriate and necessary." "That congressional election settles this case. [The Agency's] preference for symmetry cannot trump an asymmetrical statute." CSX Transp., Inc. v. Alabama Dept. of Revenue,562 U.S. 277, 296, 131 S.Ct. 1101, 179 L.Ed.2d 37 (2011).
EPA persists that Congress treated power plants differently from other sources because of uncertainty about whether regulation of power plants would still be needed after the application of the rest of the Act's requirements. That is undoubtedly oneof the reasons Congress treated power plants differently; hence § 7412(n)(1)(A)'s requirement to study hazards posed by power plants' emissions "after imposition of the requirements of [the rest of the Act]." But if uncertainty about the need for regulation were the onlyreason to treat power plants differently, Congress would have required the Agency to decide only whether regulation remains "necessary," not whether regulation is "appropriate andnecessary." In any event, EPA stated when it adopted the rule that "Congress did not limit [the] appropriate and necessary inquiry to [the study mentioned in § 7412(n)(1)(A)]." 77 Fed.Reg. 9325. The Agency instead decided that the appropriate-and-necessary finding should be understood in light of all three studies required by § 7412(n)(1), and as we have discussed, one of those three studies reflects concern about cost.
C
The dissent does not embrace EPA's far-reaching claim that Congress made costs altogether irrelevant to the decision to regulate power plants. Instead, it maintains that EPA need not "explicitly analyze costs" before deeming regulation appropriate, because other features of the regulatory program will on their own ensure the cost-effectiveness of regulation. Post, at 2714 (opinion of KAGAN, J.). This line of reasoning contradicts the foundational principle of administrative law that a court may uphold agency action only on the grounds that the agency invoked when it took the action. SEC v. Chenery Corp.,318 U.S. 80, 87, 63 S.Ct. 454, 87 L.Ed. 626 (1943). When it deemed regulation of power plants appropriate, EPA said that cost was irrelevantto that determination-not that cost-benefit analysis would be deferred until later. Much less did it say (what the dissent now concludes) that the consideration of cost at subsequent stages will ensure that the costs are not disproportionate to the benefits. What it said is that cost is irrelevant to the decision to regulate.
That is enough to decide these cases. But for what it is worth, the dissent vastly overstates the influence of cost at later stages of the regulatory process. For example, the dissent claims that the floor standards-which the Act calibrates to reflect emissions limitations already achieved by the best-performing sources in the industry-reflect cost considerations, because the best-performing power plants "must have considered costs in arriving at their emissions outputs."Post, at 2719. EPA did not rely on this argument, and it is not obvious that it is correct. Because power plants are regulated under other federal and state laws, the best-performing power plants' emissions limitations might reflect cost-blind regulation rather than cost-conscious decisions. Similarly, the dissent suggests that EPA may consider cost when dividing sources into categories and subcategories. Post, at 2720. Yet according to EPA, "it is notappropriate to premise subcategorization on costs." 77 Fed.Reg. 9395(emphasis added). That statement presumably explains the dissent
Question: What is the agency involved in the administrative action?
001. Army and Air Force Exchange Service
002. Atomic Energy Commission
003. Secretary or administrative unit or personnel of the U.S. Air Force
004. Department or Secretary of Agriculture
005. Alien Property Custodian
006. Secretary or administrative unit or personnel of the U.S. Army
007. Board of Immigration Appeals
008. Bureau of Indian Affairs
009. Bureau of Prisons
010. Bonneville Power Administration
011. Benefits Review Board
012. Civil Aeronautics Board
013. Bureau of the Census
014. Central Intelligence Agency
015. Commodity Futures Trading Commission
016. Department or Secretary of Commerce
017. Comptroller of Currency
018. Consumer Product Safety Commission
019. Civil Rights Commission
020. Civil Service Commission, U.S.
021. Customs Service or Commissioner or Collector of Customs
022. Defense Base Closure and REalignment Commission
023. Drug Enforcement Agency
024. Department or Secretary of Defense (and Department or Secretary of War)
025. Department or Secretary of Energy
026. Department or Secretary of the Interior
027. Department of Justice or Attorney General
028. Department or Secretary of State
029. Department or Secretary of Transportation
030. Department or Secretary of Education
031. U.S. Employees' Compensation Commission, or Commissioner
032. Equal Employment Opportunity Commission
033. Environmental Protection Agency or Administrator
034. Federal Aviation Agency or Administration
035. Federal Bureau of Investigation or Director
036. Federal Bureau of Prisons
037. Farm Credit Administration
038. Federal Communications Commission (including a predecessor, Federal Radio Commission)
039. Federal Credit Union Administration
040. Food and Drug Administration
041. Federal Deposit Insurance Corporation
042. Federal Energy Administration
043. Federal Election Commission
044. Federal Energy Regulatory Commission
045. Federal Housing Administration
046. Federal Home Loan Bank Board
047. Federal Labor Relations Authority
048. Federal Maritime Board
049. Federal Maritime Commission
050. Farmers Home Administration
051. Federal Parole Board
052. Federal Power Commission
053. Federal Railroad Administration
054. Federal Reserve Board of Governors
055. Federal Reserve System
056. Federal Savings and Loan Insurance Corporation
057. Federal Trade Commission
058. Federal Works Administration, or Administrator
059. General Accounting Office
060. Comptroller General
061. General Services Administration
062. Department or Secretary of Health, Education and Welfare
063. Department or Secretary of Health and Human Services
064. Department or Secretary of Housing and Urban Development
065. Administrative agency established under an interstate compact (except for the MTC)
066. Interstate Commerce Commission
067. Indian Claims Commission
068. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
069. Internal Revenue Service, Collector, Commissioner, or District Director of
070. Information Security Oversight Office
071. Department or Secretary of Labor
072. Loyalty Review Board
073. Legal Services Corporation
074. Merit Systems Protection Board
075. Multistate Tax Commission
076. National Aeronautics and Space Administration
077. Secretary or administrative unit or personnel of the U.S. Navy
078. National Credit Union Administration
079. National Endowment for the Arts
080. National Enforcement Commission
081. National Highway Traffic Safety Administration
082. National Labor Relations Board, or regional office or officer
083. National Mediation Board
084. National Railroad Adjustment Board
085. Nuclear Regulatory Commission
086. National Security Agency
087. Office of Economic Opportunity
088. Office of Management and Budget
089. Office of Price Administration, or Price Administrator
090. Office of Personnel Management
091. Occupational Safety and Health Administration
092. Occupational Safety and Health Review Commission
093. Office of Workers' Compensation Programs
094. Patent Office, or Commissioner of, or Board of Appeals of
095. Pay Board (established under the Economic Stabilization Act of 1970)
096. Pension Benefit Guaranty Corporation
097. U.S. Public Health Service
098. Postal Rate Commission
099. Provider Reimbursement Review Board
100. Renegotiation Board
101. Railroad Adjustment Board
102. Railroad Retirement Board
103. Subversive Activities Control Board
104. Small Business Administration
105. Securities and Exchange Commission
106. Social Security Administration or Commissioner
107. Selective Service System
108. Department or Secretary of the Treasury
109. Tennessee Valley Authority
110. United States Forest Service
111. United States Parole Commission
112. Postal Service and Post Office, or Postmaster General, or Postmaster
113. United States Sentencing Commission
114. Veterans' Administration or Board of Veterans' Appeals
115. War Production Board
116. Wage Stabilization Board
117. State Agency
118. Unidentifiable
119. Office of Thrift Supervision
120. Department of Homeland Security
121. Board of General Appraisers
122. Board of Tax Appeals
123. General Land Office or Commissioners
124. NO Admin Action
125. Processing Tax Board of Review
Answer:
|
songer_habeas
|
C
|
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.
KASTEL v. UNITED STATES.
Circuit Court of Appeals, Second Circuit.
Feb. 4, 1929.
No. 265.
Edward J. McCrossin, of New York City, for appellant.
Charles H. Tuttle, U. S. Atty., of New York City (Ellamarye Failor, Asst. U. S. Atty., of New York City, of counsel), for the United States.
Before MANTON, L. HAND, and SWAN, Circuit Judges.
PER CURIAM.
The appellant was convicted and sentenced for a violation of section 215, U. S. Criminal Code (18 USCA § 338). Upon the appeal from that conviction, we affirmed. Kastel v. United States, 23 F.(2d) 156. Appellant’s present plea is based upon, the claim of former jeopardy. It is grounded upon the contention that at one of the trials, bad prior to the trial resulting in bis conviction, tbe jury, in disagreement, was discharged by a clerk of the court without their request to be relieved from further deliberations; that they at no time declared their inability to agree. We considered this question when the case was here before. The present record differs only in that affidavits are submitted as to what occurred in the jury’s deliberation and at the time of their discharge. But they add nothing new to the former record. They do supplement affidavits offered in support of the plea of former jeopardy at the trial which resulted in appellant’s conviction. But a fundamental objection requires our affirming the order of dismissal. The plea of former jeopardy may not be reviewed on habeas corpus. Ex parte Bigelow, 113 U. S. 328, 5 S. Ct. 542, 28 L. Ed. 1005; In re Eckart, 166 U. S. 481, 17 S. Ct. 638, 41 L. Ed. 1085; Van Meter v. Snook (C. C. A.) 15 F.(2d) 377.
Order affirmed.
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_circuit
|
K
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
In re ALL AMERICAN OF ASHBURN, INC., Debtor. John W. GRIFFIN, Robert V. Blanton, Paul J. Hill, Craig Black, Billy Black, Steven L. Ivie, and Hillard P. Burt, Plaintiffs-Appellants, v. Paul W. BONAPFEL, Trustee, Defendant-Appellee.
No. 86-8347.
Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
Dec. 16, 1986.
C. Nathan Davis, Albany, Ga., for plaintiffs-appellants.
Paul W. Bonapfel, Atlanta, Ga., for defendant-appellee.
Before RONEY, Chief Judge, HILL and KRAYITCH, Circuit Judges.
PER CURIAM:
AFFIRMED on the basis of the district court opinion attached hereto as an appendix.
APPENDIX
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION
CHAPTER 11
NO. 83-03719
CIVIL ACTION
NO. C85-4390A ORDER
FORRESTER, District Judge.
This action is before the court on an appeal from a final order and judgment by the bankruptcy court granting permanent injunctive relief in favor of appellee/trust-ee [56 B.R. 186 (1986)]. 28 U.S.C. § 158. In reviewing the order of the bankruptcy court, this court is mindful that the bankruptcy court’s “[findings of fact should not be set aside unless clearly erroneous-” Bankruptcy Rule 8013. This court may make a de novo review of the bankruptcy court’s conclusions of law. Borg-Wamer Acceptance Corp. v. Fedders Federal [Financial] Corp. (In Re: Hammons), 614 F.2d 399,. 403 (5th Cir.1980).
I. STATEMENT OF FACTS.
Having reviewed the record of the bankruptcy court, the court is of the opinion that the bankruptcy court’s findings of fact were not clearly erroneous. Therefore, the court adopts as its findings of fact those facts stated by the bankruptcy court in its order of September 25, 1985. The pertinent facts center upon the commencement of an action by appellants as shareholders of All American of Ashburn, Inc. (All American), the debtor corporation subject to this Chapter 11 proceeding, to recover for the diminution of the value of their stock. Appellants sought to recover against C.I.T. Corporation (CIT) because of
CIT’s fraudulent representations of future financing of All American which allegedly resulted in the destruction of All American’s business and damage to appellants as shareholders. This shareholders’ action was commenced in the Superior Court of Turner County, Georgia, but was subsequently removed in 1985 to the United States District Court for the Middle District of Georgia where it is now pending.
Over two years prior to the commencement of the shareholders’ action, All American filed this petition for bankruptcy under Chapter 11. Appellee/trustee was aware of the potential claim against CIT and negotiated a settlement agreement in the spring of 1985. A settlement agreement was executed on July 8, 1985, providing that funds in the possession of the trustee against which CIT claimed a priority lien would be relinquished to the trustee and the trustee and CIT would share future collections on accounts receivable. CIT released its interest in certain other assets of the estate and relinquished a deficiency claim. In return for the foregoing, CIT received a general release from the trustee of all claims that could be asserted by All American by the appellee/trustee. However, the settlement agreement provided as a condition precedent to its effectiveness that the bankruptcy court enjoin any pending suit against CIT to the extent that such suit asserted claims of All American.
Pursuant to this settlement agreement, appellee/trustee filed a complaint against appellants seeking a permanent injunction against their pursuit of the shareholders’ action. After a hearing on August 19, 1985, the Honorable W. Homer Drake, Jr. entered the following order on September 27, 1985.
ORDERED AND ADJUDGED that the above-named Defendants be, and each of them hereby is, permanently enjoined and restrained from continuing the prosecution of the above-referenced Civil Action in the name or on behalf of All American, or derivatively as shareholders of All American or from asserting a claim or cause of action which is or was a claim or cause of action of All American or the Trustee, or purportedly for the benefit of All American or the Trustee; and it is further
ORDERED AND ADJUDGED that the Defendants be, and each of them hereby is, ordered and directed to dismiss said Civil Action insofar as, and to the extent that said Civil Action is brought in the name or on behalf of All American or the Trustee, or derivatively by any of the Defendants as shareholders of All American or asserts a claim or cause of action which is or was a claim or cause of action of All American of Ashburn, Inc., or the Trustee; and it is further
ORDERED AND ADJUDGED that the Defendants be, and each of them hereby is, permanently restrained and enjoined from commencing any action, suit or proceeding against CIT to the extent that such action, suit, or proceeding is brought by, in the name of, or purportedly on behalf or for the benefit of All American or the Trustee or for the purpose of recovering on any claim or cause of action which is or was a claim or cause of action of All American or the Trustee.
The appellants appealed from this order arguing that the bankruptcy court has no jurisdiction to enjoin actions by individual shareholders.
II. CONCLUSIONS OF LAW.
Appellants do not dispute the authority of the bankruptcy court to protect the estate of the debtor corporation, including “all legal or equitable interests of the debt- or in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1); 11 U.S.C. § 105(a). The only question before this court on appeal is. whether the bankruptcy court exceeded its authority when it enjoined appellants from pursuing what appellants characterize as an action which is not the property of the estate.
The action which appellants commenced against CIT is not an action which they may pursue exclusive of the interest of the debtor corporation. Of course, an appellant’s shareholders’ derivative action belongs to the corporation. See OCGA 14-2-123(a). Denying that their action is derivative, appellants assert that their action is one for the recovery of “damages for the reduced value of their shares in All American.” Appellants’ Brief at 9. This characterization is unavailing in light of the fact that a suit for the recovery of the diminution of the value of the stock caused by the tortious acts of either an officer or director or third person belongs to the corporation. See Dale vs. City Plumbing & Heating Supply Co., 112 Ga.App. 723, 729 [146 S.E.2d 349] (1965); Short vs. McKinney, 111 Ga.App. 557, 560-62 [142 S.E.2d 398] (1965); see generally Fletcher, Cyclopedia of Laws of Private Corporations § 5913 (1984). Appellants’ allegations in the action pending in the Middle District Court that CIT damaged their investment by fraudulently promising financial assistance to All American are allegations of a harm suffered by the debtor corporation. Any recovery which appellants might realize would normally go to the debtor corporation. Id; see also Schnorbach vs. Fuqua, 70 F.R.D. 424 (S.D.Ga.1975). In short, appellants are not distinctly and individually damaged shareholders whose loss can be separated from the loss of the debtor corporation. See Thomas vs. Dixon [Dickson], 250 Ga. 772, 774-75 [301 S.E.2d 49] (1983).
Because the claims of appellants belong primarily to the debtor corporation and because the representative of the debtor corporation has already compromised these claims, appellants were properly enjoined from pursuing an action which is the property of the. debtor’s estate. See Vincel vs. White Motor Corp., 521 F.2d 1113, 1118-19 (2d Cir.1975). Judge Drake did not enjoin appellants from pursuing any action which they may bring in their own name or for their own benefit exclusive of the benefit to the debtor corporation. The bankruptcy court’s order is quite explicit in limiting its effect to civil actions brought on behalf of All American or civil actions asserting claims or causes of action which are the property of All American. The bankruptcy court was acting within its authority to protect the property of the estate.
III. CONCLUSION.
In sum, the order of the bankruptcy court was an appropriate exercise of the court’s power to protect the estate. The bankruptcy court did not purport to enjoin appellants from pursuing any non-derivative claims as shareholders of the debtor corporation. The bankruptcy court’s order was appropriate as applied to the appellants shareholders’ action now pending in the United States District Court for the Middle District of Georgia because such action is the property of the debtor’s estate. For the foregoing reasons, the order of the bankruptcy court is hereby AFFIRMED.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
songer_bank_r1
|
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 first listed respondent is bankrupt. If there is no indication of whether or not the respondent is bankrupt, the respondent is presumed to be not bankrupt.
UNITED STATES of America, Plaintiff-Appellee, v. Michael Rudy THAM, Defendant-Appellant.
No. 90-10573.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 17, 1991.
Decided Nov. 5, 1991.
Doron Weinberg, Larson & Weinberg, San Francisco, Cal., for defendant-appellant.
Sara M. Lord, U.S. Dept, of Justice, Criminal Division, Washington, D.C., for plaintiff-appellee.
Before CHOY, and SNEED, Circuit Judges, and KELLEHER, Senior District Judge.
The Honorable Robert J. Kelleher, Senior United States District Judge, sitting by designation.
CHOY, Circuit Judge:
A federal jury convicted Michael R. Tham for attempting to corruptly influence United States District Judge Stanley A. Weigel. Also convicted were Tham’s co-conspirators: ex-crime figure Abraham Chalupowitz, alias “Trigger Abe” Chapman, and United States District Judge Robert P. Aguilar. Tham was found guilty under 18 U.S.C. § 1503 for the substantive offense of endeavoring to influence the due administration of justice, and under 18 U.S.C. § 371 for both conspiracy to defraud the United States and conspiracy to influence the due administration of justice.
Tham appeals his criminal conviction and sentence, alleging that the district court erred when it (1) denied his motion for a preliminary evidentiary hearing under Franks v. Delaware; (2) admitted into evidence incriminating telephone conversations which were intercepted without probable cause and which were the fruit of a prior illegal wiretap; (3) denied Tham’s motion for a continuance of his trial date; (4) excluded certain testimonial and documentary evidence which would have helped to exculpate Tham; (5) issued jury instructions which failed to enumerate all the elements of conspiracy and which incorrectly defined the requirement of proving guilt beyond a “reasonable doubt”; and (6) incorrectly classified Tham’s criminal convictions under 18 U.S.C. § 371 as two separate “pseudo-counts” of conspiracy under the United States Sentencing Guidelines.
We AFFIRM.
FACTUAL AND PROCEDURAL BACKGROUND
Since 1949, Tham had served as a union official in San Francisco for Local 856, an affiliate of the International Brotherhood of Teamsters. Tham was an active and well-known participant in numerous Teamster affairs and organizations. On the basis of the cooperation and testimony of former organized crime figure Aladena T. “Jimmy” Fratianno, former acting boss of the Los Angeles mafia, the FBI investigated Tham’s activities. On May 21, 1980, a federal jury convicted Tham under 29 U.S.C. § 501(c) for embezzling union funds and making a false entry into union records. Judge Weigel fined Tham $50,000 and sentenced him to serve consecutive terms of six months in prison and four years on probation.
In July 1987, seeking to vacate his conviction and recover over $200,000 in back-pay and attorney’s fees, Tham filed a motion for habeas corpus under 28 U.S.C. § 2255 before Judge Weigel. In an effort to gather information about Judge Weig-el’s handling of the case and to gain favorable treatment from Judge Weigel, Tham called upon Abe Chapman and Edward Solomon to solicit the help, advice, and personal influence of Judge Aguilar. Abe Chapman, was distantly related to Judge Aguilar by marriage. Attorney Edward Solomon was a friend and former law-school classmate of Judge Aguilar. In return, for Judge Aguilar’s assistance, Tham used his union connections to find a job for Lou Aguilar, the judge’s brother.
Tham, Chapman, and Aguilar were indicted on June 13, 1989. The first trial began on February 5, 1990 and ended in a mistrial on March 19, 1990 with the jury deadlocked on counts against Tham and Aguilar. A retrial was scheduled for June 4, 1990. On April 16, 1990, Tham filed a pretrial motion to sever his case from that of his co-defendants. The Government joined in Tham’s motion on May 1, 1990. The court granted the severance motion but denied Tham’s motion to continue his trial date until after the trials of his co-defendants.
Tham was tried for the second time and, on June 20, 1990, found guilty. On June 26,1990 Tham moved for a new trial, which the court denied on August 31, 1990. On November 14, 1990, Judge Bechtle entered a judgment of conviction, fined Tham $20,-000, and sentenced him to eighteen months in prison to be followed by three years on probation.
ANALYSIS
I. Franks Hearing for Defective Wiretap Affidavit
To prove the existence of the conspiracy and to establish that there had been attempts to corruptly influence Judge Weig-el, the Government sought to present pen register and wiretap evidence that documented the conspirators’ patterns of communication and revealed the contents of their telephone conversations.
Before trial, Tham moved to suppress evidence obtained from three wiretap authorizations of April 22, 1987, September 11, 1987, and October 21, 1987. After a non-evidentiary hearing on February 2, 1990, the district court ruled on February 5, 1990 to suppress evidence from the April wiretap while admitting evidence from the September and October wiretaps. Although Tham argued that the September and October wiretaps were the tainted fruits of the illegal April wiretap, the court ruled that the September and October wiretaps were supported by sufficient independent source evidence of probable cause and necessity.
Tham alleges that it was error to authorize the April and September wiretaps. In support of the wiretap applications, the Government submitted the April 20, 1987 and September 20, 1987 affidavits of FBI special agent Thomas Carlon. First, Tham argues that each affidavit, on its face, failed to establish probable cause for a wiretap under 18 U.S.C. § 2618(3). Second, Tham argues that each affidavit was defective under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), and that the district court erred by not granting him a full Franks evidentiary hearing.
Applying practical common sense and examining the totality of the circumstances as the Supreme Court did in Illinois v. Gates, 462 U.S. 213, 230, 238, 103 S.Ct. 2317, 2328, 2332, 76 L.Ed.2d 527 (1983), we find that there was a substantial basis for concluding that probable cause for the wiretaps existed. United States v. Dozier, 844 F.2d 701, 706 (9th Cir.), cert. denied, 488 U.S. 927, 109 S.Ct. 312, 102 L.Ed.2d 331 (1988).
The April affidavit provided probable cause to believe that Tham was conspiring with others to procure bribes and kickbacks in return for Union approval of certain employee health benefit contracts. Also named in the affidavits were Angelo T. Commito, then President of Labor Health and Benefit Plan, Inc., real estate developer William Richard Baldwin, labor consultant Martin Bacow, Abe Chapman, Theresa Gene Vaughn, then President of American Digitron, Inc., and Bart J. Burg executive vice-president of American Digitron. The September affidavit contained evidence sufficient to furnish probable cause to believe that Tham was planning to participate in and profit from a fraudulent public offering involving Best Refrigerated Express and a kickback scheme involving the sale of wooden pallets. Both affidavits alleged facts sufficient to establish necessity.
Under Franks v. Delaware, 438 U.S. at 156, 98 S.Ct. at 2676, and United States v. Ippolito, 774 F.2d 1482, 1485 (9th Cir.1985), evidence seized pursuant to a search warrant or wiretap must be suppressed if the defendant can prove by a preponderance of the evidence that: (1) in the affidavit in support of the search warrant or wiretap, the affiant included a statement which he knew was false or whose veracity he recklessly disregarded, and (2) the false statement was necessary to the magistrate’s finding of probable cause. We have since extended Franks to include deliberate or reckless omissions. United States v. Stanert, 762 F.2d 775, 781, amended, 769 F.2d 1410 (9th Cir.1985).
The ultimate question of whether a false statement or omission is necessary to a finding of probable cause, is a mixed question of law and fact which we review de novo. We review the district court’s underlying factual determinations for clear error. United States v. Ippolito, 774 F.2d 1482, 1484 (9th Cir.1985).
In addition to arguing below that the April affidavit failed to establish probable cause and necessity, Tham also argued that two omissions rendered the April affidavit defective and necessitated a full Franks evidentiary hearing. First, the affidavit failed to mention a March 12, 1987 telephone conversation between Angelo Commito and Martin Bacow during which Commito stated that he didn’t want to talk to Tham or involve him in any further discussions about an eye-care insurance kickback scheme. Second, according to Tham, the affidavit also failed to mention that, as of April 20, Tham and Commito had not spoken to each other for three months.
The first omission did not render the April affidavit defective or entitle Tham to a full Franks evidentiary hearing. Tham offered no proof that the omission was intentional or reckless. At worst the omission was negligent. Even if the omission had been intentional or reckless, its inclusion would not have extinguished probable cause.
Nor did Tham prove that the second omission arose from intentional or reckless conduct. Even if the second omission was the product of bad faith conduct by law enforcement officials, addition of the omitted material would not have eliminated probable cause. Far from terminating the deal altogether, Commito merely expressed grumbling dissatisfaction on January 26, 1987 with the deal’s prospects and on March 12, 1987 with Tham’s handling of the deal. However, there was also evidence that Commito was still willing to pursue further negotiations. On February 12, 1987, Commito indicated that if Tham and officers of American Digitron “pursue this properly ... maybe something can happen.” Furthermore, Tham continued his efforts to bring the scheme to fruition, making calls to American Digitron, Bacow, Baldwin, and Chapman as late as mid-April 1987. Bacow, in turn, stayed in frequent touch with Commito.
Finally, we conclude that the September and October affidavits were not the fruits of an illegal April wiretap. First, because the April wiretap was properly authorized, and second, because the September and October affidavits were based on evidence derived from sources independent of the April wiretap. Even if the September and October wiretaps were tainted fruits of the illegal April wiretap, use of the information would have been permissible under the Leon good faith exception to the fourth amendment exclusionary rule.
II. Motion to Continue Trial Date
We review a district court’s denial of a motion for continuance for an abuse of discretion. We do not find an abuse of discretion unless we conclude that the denial was arbitrary and unreasonable in light of four relevant factors: (1) the extent of the defendant’s diligence in readying the defense; (2) the likelihood that the continuance would have satisfied the defendant’s need; (3) the inconvenience to the court, opposing party, and witnesses; and (4) the extent to which the defendant may have been harmed. To demonstrate reversible error, the defendant must show that the denial resulted in actual prejudice to his defense. United States v. Shirley, 884 F.2d 1130, 1134 (9th Cir.1989).
Tham argues that his co-defendants Aguilar and Chapman would have been willing to proffer exculpatory testimony at his trial, upon the condition that their trials precede Tham’s. To this end he submitted the affidavits of his attorney and of counsel for his co-defendants. The Government argues that the likelihood that Tham’s co-defendants would furnish exculpatory testimony was “speculative and contingent.” We disagree. This eventuality need not be a certainty. Byrd v. Wainwright, 428 F.2d 1017, 1021-22 (5th Cir.1970) (citing United States v. Echeles, 352 F.2d 892, 898 (7th Cir.1965)). Nor is defense counsel required to furnish an affidavit or give formal testimony under oath attesting to his intent to use the co-defendants’ testimony. Id. at 1020.
As for denial of the continuance, on the one hand, a trial court is not obligated to accommodate a defendant’s strategic aspirations. On the other hand, by denying Tham’s continuance, the district court may have granted severance in form alone, only to take it away in substance. See United States v. Gay, 567 F.2d 916, 918-20 & n. 6, 921 (9th Cir.), cert. denied, 435 U.S. 999, 98 S.Ct. 1655, 56 L.Ed.2d 90 (1978) (wherein court denied motion for severance conditioned upon promise of exculpatory testimony by co-defendants). In Gay, 567 F.2d at 921 & n. 8, we suggested in dictum that it would have been an abuse of discretion for the district court to first grant severance expressly to enable a codefendant witness to offer exculpatory testimony and then to deny the continuance which would have deterred the witness from invoking the fifth amendment.
Here, however, the district court was well within its discretion, in the regular management of its calendar, to schedule Tham’s trial first, leaving Aguilar and Chapman free to either waive or invoke the fifth amendment privilege against self-incrimination. Id. at 920. This is because Tham has failed to prove that the district court’s primary purpose for granting severance was to facilitate the anticipated testimony of a co-defendant, rather than, for example, to avert prejudice due to conflicting trial strategies (i.e., a decision to plead guilty) or due to the fact that incriminating evidence was admissible against one co-defendant, but not against others. United States v. Kaplan, 554 F.2d 958, 966-67 (9th Cir.), cert. denied, 434 U.S. 956, 98 S.Ct. 483, 54 L.Ed.2d 315 (1977). Moreover, in this instance, Tham could have availed himself of transcripts of Judge Aguilar’s testimony from the first trial. Chapman’s testimony would merely have been cumulative of Judge Aguilar’s testimony. In addition, Aguilar’s counsel suffered an unanticipated disabling injury and received a ninety-day continuance of his client's trial. Under the circumstances, the district court did not abuse its discretion in concluding that a further continuance of Tham’s trial would cause undue delay.
III. Exclusion of Evidence
A trial court’s decision to admit or exclude evidence is subject to review for an abuse of discretion. Shirley, 884 F.2d at 1132. At both trials, the court refused to admit into evidence tape J-1867 involving a December 20, 1987 conversation between Tham and his attorney Linda Offner. On both occasions, the court ruled tape J-1867 inadmissible because it was hearsay and concerned irrelevant matters. Though non-hearsay if offered to prove Tham’s state of mind, we agree that tape J-1867 was properly excluded as irrelevant.
During Tham’s first trial, the district court admitted into evidence one portion of tape K-736 (a conversation between Tham and his attorney Edward Solomon), which the prosecution used to incriminate Tham. Tham, relying on the rule of completeness embodied by Federal Rule of Evidence 106, sought to play the entire tape and admit the entire transcript of the tape over the Government’s hearsay and relevancy objections. Judge Bechtle ruled that, during the prosecution’s case-in-chief, Tham could not play the entire tape but could use the entire transcript for impeachment purposes. The court also ruled that Tham could play the balance of the tape while presenting his own case.
At the second trial, Judge Bechtle ruled that the balance of the conversation on tape K-736 was inadmissible, either in transcript or tape form. This time, the court ruled that the tape was hearsay and irrelevant. Tham argues that the court was bound by the law of the case to admit the balance of tape K-736 pursuant to its ruling during the first trial. See generally Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703, 715 (9th Cir.1990). We agree that under the law of the case doctrine as applied by this circuit it is error for a court upon retrial to reverse an identical evidentiary ruling made during the first trial, barring clear error or a change in circumstances. United States v. Estrada-Lucas, 651 F.2d 1261, 1263-65 (9th Cir.1980).
Here, although there was no change in trial circumstances, the trial court committed clear error in the first trial when it ruled to admit the irrelevant evidence. In addition, the tape was merely cumulative of other testimony presented as to Tham’s state of mind, namely his earnest belief in the merits of his § 2255 habeas corpus petition, which point the Government conceded. It was therefore harmless error for the court to so reverse itself without explanation.
During the first trial Judge Weigel testified that in many cases it would be proper for a judge to advise a lawyer on procedural matters concerning a case not pending before that judge. The Government made no objection. Several questions later the Government made a belated hearsay objection which the court overruled. Later still Judge Weigel testified that FBI agents asked him to secretly record his next conversation with Judge Aguilar. Once again, the Government made no objection to the substance of the testimony.
On retrial, the Government raised a timely objection to the question posed by Tham’s counsel: whether there is “anything illegal about one judge giving legal advise [sic] to a claimant in a matter pending before another judge?” Thus, law of the case doctrine did not apply and there was no abuse of discretion. Although neither the court nor counsel provided a ground for the objection, the question calls for a legal conclusion material to the case and based on disputed facts.
As for the question of whether FBI agents asked Judge Weigel to record his next conversation with Judge Aguilar, the district court committed clear error in the first trial when it admitted the latter portions of Judge Weigel’s hearsay testimony, which was properly excluded in the second trial. It was harmless error for the district court to fail to specify its reason for altering its ruling. The request of the FBI agents did not demonstrate bias or prejudice, but indicated a legitimate course of investigation. Cf. United States v. Puchi, 441 F.2d 697, 702 (9th Cir.), cert. denied, 404 U.S. 853, 92 S.Ct. 92, 30 L.Ed.2d 92 (1971) (Government agent allegedly asked witness to lie about appellant’s guilt). Thus, the FBI request was offered for the truth of the matter therein asserted.
IV. Jury Instructions on Conspiracy and Reasonable Doubt
Tham argues that the jury instructions failed to specify the degree of criminal intent necessary to convict Tham for the underlying offense of endeavoring to obstruct justice. We review de novo the legal question of whether a jury instruction misstates an element of a statutory crime. United States v. Spillone, 879 F.2d 514, 525 (9th Cir.1989), cert. denied, — U.S. -, 111 S.Ct. 210, 112 L.Ed.2d 170 (1990). We find the jury instructions on conspiracy adequate as to all elements, including the specific intent for obstruction of justice. See United States v. Tuohey, 867 F.2d 534, 536-38 (9th Cir.1989); United States v. Andreen, 628 F.2d 1236, 1248 (9th Cir.1980). Tham’s counsel concedes that a specific intent instruction was given.
Tham argues that the jury instructions incorrectly defined the concept of “reasonable doubt.” Jury instructions need not be perfect to withstand challenge on appeal. The proper inquiry is whether, considering the charge as a whole, the trial court’s instructions fairly and adequately covered the issues presented, correctly stated the law, and were not misleading. Frank Briscoe Co. v. Clark County, 857 F.2d 606, 612 (9th Cir.1988), cert. denied, 490 U.S. 1048, 109 S.Ct. 1957, 104 L.Ed.2d 426 (1989) (quoting Coursen v. A.H. Robbins Co., 764 F.2d 1329, 1337, modified, 773 F.2d 1049 (9th Cir.1985)). We find that the jury instructions adequately defined the concept of “reasonable doubt.” Brief for the United States of America at 48.
Tham also claims that he was prejudiced by the court’s failure to provide either counsel with a written copy of the jury instructions before they were read to the jury. This was because the court had not prepared them until the time for delivery of closing arguments. Even if the court’s action constituted a violation of Federal Rule of Criminal Procedure 30, we find no prejudice to Tham because neither party was “unfairly prevented from arguing its defense to the jury or substantially misled in formulating and presenting arguments.” United States v. Gaskin, 849 F.2d 454, 458 (9th Cir.1988).
Although both parties may have been disadvantaged, counsel for both sides knew that conspiracy and reasonable doubt were to be among the concepts at issue. Moreover counsel had two opportunities to hear and raise objections to the content of the jury instructions — both during the initial reading of the court’s instructions and later when, in response to the jury’s questions, the court repeated its instructions on “conspiracy” and “reasonable doubt.”
V. Sentencing for Conspiracies with Separate Objectives
The Government indicated Tham under 18 U.S.C. § 371 for two separate conspiracies with two separate objectives — first, a conspiracy to commit an offense against the United States, and second, a conspiracy to defraud the United States. The Government also indicted Tham for “corruptly endeavoring to influence, obstruct, and impede the due administration of justice” in the federal court for the Northern District of California by using Judge Aguilar’s access to and influence with Judge Weigel to obtain an evidentiary hearing for Tham in his habeas corpus proceeding before Judge Weigel. This violation of 18 U.S.C. § 1503 was both the conspiratorial objective of and the substantive offense underlying the conspiracy to commit an offense against the United States.
Tham argues that the district court erred in convicting him for two separate conspiracies because the jury verdict did not specify whether the jury had found Tham guilty on one or both charges of conspiracy. We find no error. We agree with the Government that where a defendant is charged with one conspiracy to commit several separate offenses, he may be convicted on a separate count of conspiracy for each separate object offense. United States Sentencing Commission, Guidelines Manual, § lB1.2(d) (Nov.1990) (hereinafter U.S.S.G.). Furthermore where the jury’s verdict fails to specify which of the charged offenses were the objects of the conspiracy, then the defendant may be convicted of those object offenses of which the court, were it sitting as a trier of fact, would convict the defendant. U.S.S.G. § lB1.2(d), comment, (n.5).
Tham also argues that it was error for the district court to sentence him for the commission of two separate conspiracies when, in fact, he entered into but a single criminal conspiracy with a single conspiratorial objective. Looking to the Government’s bill of particulars and the district court’s jury instructions, we disagree. First, Tham was charged with conspiring to defraud the United States by three means: (a) obstructing an FBI investigation (Judge Aguilar warned the coconspirators of ongoing FBI visual surveillance and wiretaps); (b) impeding the lawful function of a federal district court (Judge Aguilar warned the coconspirators of the FBI investigation into their activities, intervened on Tham’s behalf in probation matters, used his access to and influence with Judge Weigel to get Tham a habeas corpus evidentiary hearing before Judge Weigel, and on the basis of his knowledge of and friendship with Judge Weigel gave the coconspirators information and advice on how to handle the habeas corpus case before Judge Weigel); and (c) corruptly influencing Judge Aguilar (Judge Aguilar disclosed confidential information concerning the FBI investigation, used information acquired as a judge to thwart the FBI investigation, used his access to and influence with Judge Weigel to advise and assist Tham with his habeas corpus case, and lent the prestige of his office to advance Tham’s private interests).
First, the bill of particulars contains numerous redundancies in its recitation of acts in furtherance of conspiracy and unlawful conspiratorial objectives. It appears that there was but one conspiracy to overturn Tham’s embezzlement conviction by influencing Judge Aguilar, influencing Judge Weigel, and manipulating the prospects for success in Tham’s habeas corpus action.
Second, under the law of this circuit, a defendant cannot be convicted under section 1503 for impeding the function of the FBI. Obstruction of justice requires acts to thwart some aspect of the Government’s judicial function. An investigation conducted by the FBI, the IRS, or some other governmental agency, does not constitute a judicial proceeding. United States v. Fayer, 573 F.2d 741, 745 (2d Cir.), cert. denied, 439 U.S. 831, 99 S.Ct. 108, 58 L.Ed.2d 125 (1978); United States v. Ryan, 455 F.2d 728, 733 (9th Cir.1972).
However, a defendant may be convicted of conspiracy, or agreement to commit an offense, under section 371 whether or not he has actually committed that offense. The conspiracy may have an object offense that is a violation of either criminal or civil law. A conspiracy to defraud the United States need not involve pecuniary loss. Tuohey, 867 F.2d at 536-37.
Here, there was a conspiracy to corruptly endeavor to influence Judge Weigel with the ultimate objective of overturning Tham’s 1980 embezzlement conviction. Subsequently there was a conspiracy to defraud the United States with the independent objective of thwarting the FBI investigation into the crime of endeavoring to obstruct justice. Under section 371, it is illegal to conspire to defraud the United States and any agency thereof, including the courts, officers of the court, the FBI, and the IRS. United States v. Rosengarten, 857 F.2d 76, 78-79 (2d Cir.1988), cert. denied, 488 U.S. 1011, 109 S.Ct. 799, 102 L.Ed.2d 790 (1989).
The object of the conspiracy need not implicate a separate statutory violation, so long as the conduct impairs a government function. Id. at 78. For example, it was a violation of section 371 for an SEC employee to divulge confidential information from which coconspirators could profit. The violation of confidentiality was an act of dishonesty that “impaired the public confidence essential to the effective functioning of government.” United States v. Peltz, 433 F.2d 48, 51-52 (2d Cir.1970), cert. denied, 401 U.S. 955, 91 S.Ct. 974, 28 L.Ed.2d 238 (1971).
Tham’s sentence for commission of two separate conspiracies was not error. AFFIRMED.
. Chief Judge Peckham, sitting as a magistrate, initially authorized the April 22, 1987 wiretap application against Angelo Commito. During Commito’s trial, Judge Patel suppressed the wiretap and its fruits because the accompanying affidavit did not establish necessity under 18 U.S.C. §§ 2518(l)(c) & (3)(c). In suppressing evidence against Tham from the very same April wiretap, Judge Bechtle understandably relied on Judge Patel’s ruling. However, we subsequently reversed Judge Patel’s ruling in United States v. Commito, 918 F.2d 95 (9th Cir.1990).
. Tham argues that the Leon good faith exception does not extend to wiretaps, however, in United States v. Leon, 468 U.S. 897, 923, 926, 104 S.Ct. 3405, 3421, 3422, 82 L.Ed.2d 677 (1984), the Supreme Court indicated that the good faith exception is an integral part of a Franks analysis in that only reckless or deliberate police conduct triggers suppression. In Ippolito, we extended Franks to include affidavits accompanying wiretap applications. See United States v. Malekzadeh, 855 F.2d 1492, 1497 (11th Cir. 1988), cert. denied, 489 U.S. 1029, 109 S.Ct. 1163, 103 L.Ed.2d 221 (1989) (applying good faith exception to wiretap affidavit).
. We reject the holding of United States v. Akers, 702 F.2d 1145, 1147-49 (D.C.Cir.1983), wherein the court held that a retrial renders the first trial a nullity along with any evidentiary rulings therein. In the first place, Akers provides no rationale for ignoring a previous evidentiary ruling rendered in the same case, absent clear error or altered circumstances. Thus, despite the dictates of the law of the case doctrine with its implications for deference, consistency, and judicial economy, Akers would permit a judge arbitrarily to reverse his own ruling or that of another trial judge in the same case.
Second, Akers relies upon legal precedents which do not support its position. The cases cited by the court merely provide that at retrial, counsel is free to make new motions, raise new objections, and present additional evidence, as if no previous trial had occurred. Id. at 1148. These pronouncements are irrelevant to the question of whether a trial court, faced with identical objections to the same piece of evidence, must adhere to a previous ruling in the "same case,” albeit a ruling from a mistrial. Furthermore, by analogy, prior case law favors the Ninth Circuit’s position. White v. Muriha, 377 F.2d 428, 431-32 (5th Cir.), aff’d on rehearing, 381 F.2d 34 (1967); Lincoln Nat'l Life Ins. Co. v. Roosth, 306 F.2d 110, 112-13, 114 (5th Cir.1962), cert. denied, 372 U.S. 912, 83 S.Ct. 726, 9 L.Ed.2d 720 (1963) (on second appeal from retrial, when presented with same issue and body of evidence, law of the case requires adherence to decision of panel on first appeal); Chicago St. Paul, Minneapolis & Omaha Ry. v. Kulp, 102 F.2d 352, 353-55 (8th Cir.), cert. denied, 307 U.S. 636, 59 S.Ct. 1032, 83 L.Ed. 1518 (1939) (introduction of new evidence at retrial, if merely cumulative, will not bar application of law of the case on second appeal). See F. James & G. Hazard, Civil Procedure, § 11.5 (3d ed. 1985) ("Thus, a trial court will treat its own earlier rulings as conclusive in subsequent trial proceedings.”).
. The Government attorney merely objected to the characterization by Tham’s counsel that the FBI agents had asked Judge Weigel to "wear a harness to try to entrap Judge Aguilar.” (emphasis added). When the court sustained the Government’s objection Tham's attorney rephrased his question and asked instead: "Did they want you to wear a harness or a recorder when you talked to Judge Aguilar?" To which Judge Weigel responded: “That’s correct, they did.”
. Title 18, Section 371, of the United States Code provides:
"§ 371. Conspiracy to commit offense or to defraud United States. If two or more persons conspire 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 to 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.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.”
. Title 18, Section 1503, of the United States Code provides:
“§ 1503. Influencing or injuring officer or juror generally. Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States commissioner or other committing magistrate, in the discharge of his duty, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, commissioner, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both.”
Question: Is the first listed respondent bankrupt?
A. Yes
B. No
Answer:
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songer_treat
|
B
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
UNITED STATES of America, Plaintiff-Appellee, v. Abraham Frank ZIMMERMAN and Sylvia Zimmerman, Defendants-Appellants.
No. 72-1148.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 26, 1973.
Decided April 30, 1973.
Anna R. Lavin, Joseph M. Solon, Chicago, III., for defendants-appellants.
Scott P. Crampton, Asst. Atty. Gen., Murray S. Horwitz, Atty., Tax Division, Department of Justice, Washington, D. C., James R. Thompson, U. S. Atty., William T. Huyck, Asst. U. S. Atty., Chicago, 111., for plaintiff-appellee.
Before CASTLE, Senior Circuit Judge, and KILEY and PELL, Circuit Judges.
CASTLE, Senior Circuit Judge.
■On October 29, 1971, the district court entered its decision reducing to judgment certain assessments for unpaid income taxes against Abraham Zimmerman for the' years 1923 to 1931, and holding Abraham and Sylvia Zimmerman jointly and severally liable for income tax liabilities for the years 1959 through 1962. On this appeal Sylvia Zimmerman seeks relief from the joint liability imposed upon her for 1959-1962 taxes because of the amendment of the internal revenue statute upon which her liability was originally based.
Apparently the Zimmermans filed suits in the Tax Court of the United States during 1966 for a determination of their tax liabilities. (Cases Nos. 1374-66 and 1375-66.) While these suits were still pending, the United States filed an action in district court pursuant to 26 U.S.C. § 7402(a) (1964) which sought to reduce certain tax assessments against the Zimmermans to judgment. Count I of the government’s complaint alleged deficiencies for the years 1923 through 1931, and Count II alleged unpaid liabilities for the years 1959 and 1961. The Zimmermans filed their answer denying the allegations of these two counts, and they asserted the statute of limitations and the alleged failure of Counts I and II to state a cause of action. The district court litigation then became drawn out due to a series of postponed pretrial meetings, continuances, and motions for partial summary judgment. In the meantime, the Tax Court rendered a decision in cases Nos. 1374-66 and 1375-66 on July 8, 1970 “pursuant to agreement of the parties.” The decision in 1374-66 determined that the deficiencies in the income tax payments of Abraham Zimmerman for 1959, 1960, 1961 and 1962 amounted to $26,441.98, $54,096.48, $62,216.32 and $5,073.80 respectively, and that he also owed the government various additional sums for the years in question pursuant to 26 U.S.C. § 6653(b). The decision in 1375-66 found Sylvia Zimmerman liable for the same deficiencies and penalties owed by her husband for the years 1959-1962.
On August 12, 1970 the government moved to amend its complaint in the district court action “to permit all issues between the interested parties to be litigated in one action thus saving unnecces-sary litigation.” Its motion granted, the government struck Count II and alleged that the July 8 Tax Court decision had determined the assessments against the Zimmermans for 1959-62 and that the Zimmermans had refused to pay these assessments. The prayer of relief for the amended Count II sought an adjudication that:
. the defendants, Abraham F. and Sylvia Zimmerman, are jointly and severally liable and indebted to the plaintiff, United States of America, for unpaid taxes, penalties and interest assessed against them in the amount of $304,233.56, plus interest according to law.
The Zimmermans then filed their answer to the amended Count II and admitted that they owed $304,233.56 to the government. Their answer also admitted “that the United States of America is entitled to the relief prayed under Count II of the Complaint.”
After a trial on only the first count of the complaint (the liability for taxes for 1923 to 1931), the district court adjudged that the government was entitled to the relief it asked for in both Count I and Count II. Regarding Count II of the complaint, the Trial Court found:
13. The taxpayers, Abraham F. Zimmerman and Sylvia Zimmerman, cannot relitigate the taxes assessed against them on July 13, 1970 for the years 1959, 1960, 1961, 1962. These liabilities are the result of decisions of the Tax Court of the United States, which are res judicata as to the question of the liability of the defendants. On this appeal Sylvia Zimmerman
asserts that her tax liability as determined by the Tax Court and confirmed in the district court was based on a statute which subsequently has been significantly modified. Prior to January 12, 1971, a husband and wife filing a joint return were automatically jointly and severally liable for income tax deficiencies and fraud penalties incurred even though the deficiencies and penalties were due to misstatements by one spouse and the other spouse was innocent. 26 U.S.C. §§ 6013 and 6653 (1964). Public Law 91-679 amended §§ 6013 and 6653 to allow an innocent spouse to escape joint liability under certain specified circumstances. These amended statutes became effective on January 12, 1971, six months after the Tax Court decision against Sylvia Zimmerman was rendered, and at least three months before the trial of the district court action. Appellant submits that the judgment of the district court on Count II should be reversed and remanded because of this intervening change of law between the dates of the Tax Court and district court decisions. She has also attacked the finding by the district court that the prior Tax Court decision is res judicata and prevents a relitigation of her tax liabilities for 1959 through 1962.
We find that the two arguments advanced by appellant are interrelated, for she cannot avail herself of the protection of the amended statutes if the 1970 Tax Court decision is res judicata as to her tax liability for 1959 through 1962. In enacting the amendments to §§ 6013 and 6653, Congress provided:
This bill, of course, does not open a year which has been closed by the statute of limitations, res judicata or otherwise.
S.Rep.No.91-1537, 91st Cong., 2d Sess. 4 (1970), U.S.Code Cong. & Admin.News, p. 6093. If the Tax Court decision is res judicata as to her tax liabilities, the amended statutes are inapplicable to her liability.
Appellant argues that the determination of her tax liability for 1959 through 1962 cannot be res judicata because the doctrine applies only to points or questions actually litigated and determined in a prior action. United States v. International Building Co., 345 U.S. 502, 504-505, 73 S.Ct. 807, 97 L.Ed. 1182 (1953). She extends this argument to contend that, since the amended statutes allowing an innocent spouse relief from the misstatements on a joint return did not exist at the time of the Tax Court decision against her, she should now be given an opportunity to litigate the rights made available to her by the amendments which she could not litigate in the prior action.
We believe her attempt to avoid the consequences of the doctrine of res judicata is unacceptable for two reasons. First, appellant has based her argument on the assumption that the amended statutes have given her a “right” to litigate which she did not possess prior to the amendments. Her assumption, of course, would be erroneous if Congress did not give her a “right” to seek a relitigation of tax liabilities which have already been conclusively determined. We conclude, for reasons set forth below, that no new litigable right was given to the appellant by the amendments which she can now assert. Secondly, her argument claims too much. Pushed to its limits, it would reduce the above-quoted language from the Senate Report to a nullity, for this argument would allow the reopening of any determination of tax liability, no matter whether a final determination of this liability had been reached or not. We believe that the correct interpretation of congressional intent — in line with the principle of statutory construction that congressional intent should not be read in a way that will reduce it to a nullity, First National Bank v. Walker Bank & Trust Co., 385 U.S. 252, 261, 87 S.Ct. 492, 17 L.Ed.2d 343 (1966) — is that the amendments to §§ 6013 and 6653 do not give any “rights” to taxpayers to relitigate their tax liabilities if these taxes have been determined through a conclusive final judgment rendered against the taxpayer. Thus, the key issue in light of this interpretation of congressional intent is whether the Tax Court decision rendered in 1970 was a conclusive determination of appellant’s tax liability.
Our interpretation of congressional intent is supported by case law. In United States v. Maxwell, 459 F.2d 22 (5th Cir. 1972), the government sued in district court to reduce assessments against a taxpayer set by a decision of the Tax Court to judgment. The taxpayer claimed in defense that the amendment to § 6013 relieved her from joint liability with her husband. The fifth circuit rejected this argument, finding that the decision of the Tax Court, which became final when the taxpayers failed to take an appeal, was res judicata of the wife’s tax liability and precluded relitigation of this liability. Similarly, in Sylk v. United States, 331 F.Supp. 661 (E.D.Pa.1971), the taxpayers sought to enjoin the government from exposing the wife’s property to sale on the theory that the amendment to § 6013 after the Tax Court decision setting her liability relieved her of liability. The court rejected this argument, finding that the Tax Court decision was res judicata. The court also found that res judicata was applicable despite the claim by the taxpayer that the amendment to the statute gave her rights which she did not have at the time of the Tax Court adjudication. The court noted that Congress could properly grant only partial retroactive relief, and that the taxpayer in effect did not possess any rights at the time of her appeal different from those which she had at the time of the Tax Court decision.
The appellant seeks to distinguish the present case from the two above-cited decisions on the ground that the district court in the present case assumed the position of an “appellate court” by accepting the government’s amendment to its complaint (which asserted the Tax Court judgments) before the expiration of the time to appeal from the Tax Court decision. We cannot accept the argument that the district court became an appellate court which assumed the power to review the correctness of the Tax Court decision, and that consequently the Tax Court decision was not res judicata. Congress has plainly provided that all appeals from Tax Court decisions are to be determined directly by the circuit courts of appeal. 26 U.S.C. § 7483 (1970). Clearly the district court did not have jurisdiction to pass upon the merits of the Tax Court decision. The record also indicates that appellant consented to entry of judgment against her by the Tax Court by signing a stipulation that the court could enter the decision against her. It has been repeatedly held that consent to entry of judgment against oneself waives one’s right to challenge the judgment through any sort of appeal. Thonen v. Jenkins, 455 F.2d 977 (4th Cir. 1972), Stanford v. Utley, 341 F.2d 265, 271 (8th Cir. 1965), Stewart v. Lincoln-Douglas Hotel Corp., 208 F.2d 379, 381 (7th Cir. 1953), 9 Moore’s Federal Practice 23.06 at 719 (2d Ed. 1972). Thus, the judgment of the Tax Court became final when appellant consented to the entry of judgment against her, and the district court could assume no appellate jurisdiction over this judgment.
The appellant also attempts to distinguish the Maxwell and Sylk decisions on the ground that both cases involved a “break” in time between the Tax Court decision and the pendency of the district court proceedings. She notes that no “break” was involved in the instant case because the district court action was commenced prior to the time the Tax Court rendered its decision, and because the government promptly amended its complaint to seek to reduce the assessments determined by the Tax Court to judgment. We fail to see the implications of this attempted distinction for avoiding the effect of res judicata.
The judgment of the district court is affirmed.
Affirmed.
. Despite the fact that both Abraham and Sylvia Zimmerman have appealed, it appears that the only real appellant here is Sylvia Zimmerman, for this appeal seeks only to reverse the judgment that she is jointly and severally liable for the tax deficiencies and penalties incurred by her husband. If Sylvia were to prevail here and ultimately to prove sufficient facts to enable her to escape liability under the amended versions of 26 U.S.C. §§ 6013 and 6653, Abraham Zimmerman would then be liable for the full amount of $304,233.56.
. We recognize that this principle of law may exist as an alternative ground for our decision affirming the judgment of the district court. Since appellant filed an answer which admitted her liability under Count II and which Consented to entry of judgment against her for the amount requested by the government, she in effect waived all rights to appeal the decision on Count II.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
songer_appnonp
|
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 "groups and associations". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
WAVERLY MINERAL PRODUCTS CO., Plaintiff-Appellee, v. UNITED STEELWORKERS OF AMERI-CA, AFL-CIO, LOCAL NO. 8290, Defendant-Appellant.
No. 78-3223.
United States Court of Appeals, Fifth Circuit.
Dec. 29, 1980.
Cooper, Mitch & Crawford, Robert H. Stropp, Jr., Birmingham, Ala., Karsman & Brooks, Stanley Karsman, Savannah, Ga., Bernard Kleiman, Chicago, 111., Carl B. Frankel, Pittsburgh, Pa., for defendant-appellant.
Altman & McGraw, Harry J. Altman, II, Thomasville, Ga., for plaintiff-appellee.
Before VANCE, FRANK M. JOHNSON, Jr. and THOMAS A. CLARK, Circuit Judges.
THOMAS A. CLARK, Circuit Judge:
This is an appeal from an order of the district court vacating the award of an arbitrator under a collective bargaining agreement. The issue is whether the arbitrator exceeded the scope of his authority under the arbitration provisions of the agreement in making his award. Because the' district court erred in vacating the arbitrator’s award, we reverse.
The facts are not in dispute. Plaintiff Waverly Mineral Products Co. (employer) and defendant United Steelworkers of America, AFL-CIO, Local No. 8290 (Union) were parties to a collective bargaining agreement covering the terms and conditions of employment at employer’s Thomas-ville, Georgia, plant.
Under the terms of the collective bargaining agreement the employer reserved unto itself “the right to . . . discharge for good cause not in violation of this Agreement.” Moreover, Article III(B) of the agreement gave employer “the right to establish, maintain and enforce . . . reasonable rules and regulations, it being understood and agreed that such rules and regulations shall not be in conflict with the express provisions of this Agreement.” Addendum B of the agreement created sanctions for violations of certain enumerated rules, among them a rule prohibiting “[a]bsenee from work without an excuse acceptable to the Company.” For the third violation of any rules within a twelvemonth period the agreement provided that “the employee shall be discharged.”
In addition to those provisions respecting management rights, the agreement also contained a “No Discrimination” clause:
Article XVI
No Discrimination
A. No employee shall be unfairly discriminated against because of membership or non-membership in the Union on the part of the Company or the Union.
B. It is mutually agreed by the Company and the Union that there shall be no discrimination because of race, color, religion, sex, age or national origin.
The agreement also provided a standard grievance procedure, which the parties agreed “shall be applied and relied upon by all parties as the sole and exclusive means of seeking adjustment of and settling grievances , . . . ” The scope of the grievance machinery was broad, a “grievance” being defined as a “dispute between the Company and the Union, or an employee, over the application, interpretation or alleged violation of a specific provision of this Agreement.” The first step of the grievance procedure is the submission of a grievance, signed and in writing, within seven days of the action complained of. The grievance is then taken up by the shop steward, and/or the complaining employee, and the department foreman. If the complaint isn’t settled at this stage, it is referred to a larger group, consisting of a Union official, the steward, the department foreman, and the plant manager or his designee. Finally, “[a]ny grievance which concerns discharge . . . and which remains unsettled after having been fully processed through the grievance procedure may be submitted to arbitration upon the written request of either the Company or Union . . . . ”
Employee Gregory West was discharged for being absent from work three times within a twelve-month period without an excuse acceptable to employer. Within the time provided in the agreement, the Union filed the following grievance on West’s behalf:
The Company violated the agreement when it discriminated against union, race and color by discharging Gregory West, a black man, for the third violation in a 12 month period 10-31-77, and took no discharge action against Harrell, a white man, for number of violations in the 12 month period.
The matter proceeded through the stages of the grievance procedure without resolution. Pursuant to the terms of the agreement, the issue was submitted to arbitration.
The arbitrator concluded that West was clearly “subject to discharge absent a showing by the Union that the Company acted in a disparate or discriminatory manner in the application of these rules.” The Union had argued that the action against West “was without justification and not for ‘just cause,’ ” while employer contended it had acted properly under the agreement’s management rights provisions. In this report the arbitrator found:
Testimony for the Union showed clearly that the rules were not applied uniformly among employees for violations of the rules. The testimony did not necessarily show that blacks were discriminated against or that Union employees were discriminated against but it did show that employees as a whole were apparently treated differently by the Company in the meting out of discipline for the same rule infractions.
Because the rules were “applied ... in an unequal or disparate manner as between various employees,” id., the arbitrator ordered West’s reinstatement and back pay.
The district court set aside the award. All management rights, except those “specifically limited by this Agreement,” were not, under the agreement, subject-to arbitration. Since according to the district court the arbitrator did not determine that any of the enumerated exceptions were applicable, the matter was held not amenable to arbitration, and the arbitrator’s award was vacated.
In vacating the award, however, the district court ignored the strong presumption favoring arbitrability, and attached an overly narrow interpretation to the contractual limitations on reservéd management rights. In considering these questions, we find guidance in the Steelworkers trilogy, which defines the role of arbitration in the resolution of disputes in the labor-management context. See United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1363, 4 L.Ed.2d 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of America v. Enterprise Wheel & Car Co., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). Those decisions enunciate a policy that a “particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.” Warrior & Gulf, 363 U.S. at 582-83, 80 S.Ct. at 1353. “Doubts should be resolved in favor of coverage.” Id.
The court’s role in reviewing awards is at the same time tightly circumscribed:
[T]he question of interpretation of the collective bargaining agreement is a question for the arbitrator. It is the arbitrator’s construction which was bargained for; and so far as the arbitrator’s decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.
Enterprise Wheel & Car Co., 363 U.S. at 599, 80 S.Ct. at 1362. The scope of judicial inquiry “must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance or did agree to give the arbitrator power to make the award he made.” Warrior & Gulf, 363 U.S. at 582, 80 S.Ct. at 1353. “If the subject matter of the dispute is arguably arbi-trable (resolving all doubts in favor of coverage), then it is for the arbitrator to decide whether or not the dispute may be arbitrated.” Alabama Power Co. v. Local Union No. 391, 612 F.2d 960, 963 (5th Cir. 1980).
The parties here do not dispute the fact that the issue submitted was arbitrable under the agreement. The employer argues that once the arbitrator found there was no discrimination motivated by race or union membership in this particular instance, and that West was subject to discharge, the arbitrator’s task was complete. Here, as in Johnston-Tombigbee Furniture Manufacturing Co. v. Local Union No. 2462, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, 596 F.2d 126 (5th Cir. 1979), the employer has read the management rights exclusion from arbitration too broadly. In that case, a management’s rights clause contained a lengthy list of management prerogatives, including “the right to discipline, suspend, and discharge employees for just cause,” and any and all other rights unless clearly limited by the contract's explicit language. The employer argued that all discharges were specifically excluded from arbitration by the language of the exclusionary clause that incorporated the management’s rights clause by reference. The court held that the employer read the language too broadly:
[N]ot all discharges are excluded from arbitration but only those discharges supported by just cause. Until an arbitrator determines whether the discharge is for just cause, the exclusionary clause does not apply.
596 F.2d at 128.
In agreeing with the employer that the contract permitted arbitration of only those discharge grievances supported by proof of racial or union discrimination, the district court likewise construed the arbitration provisions of the contract too narrowly. The grievance provisions in the contract did not state that any discharge not motivated by a prohibited reason was, for that reason alone, for good cause and therefore not arbitrable. Instead, the contract expressly provided that “[a]ny grievance which concerns discharge .. . may be submitted to arbitration.” (Emphasis added.) The district court in effect construed management’s right to discharge for good cause as precluding any challenge to a discharge that is not supported by proof of discrimination expressly prohibited under the contract. But this reasons that, by the inclusion of boilerplate nondiscrimination clauses, the Union implicitly agreed to forego arbitration of disputes arising out of circumstances not conforming to those that were expressly anticipated by the parties. Not only does this argument attribute a comprehensive foresight to the parties to the agreement, one that is simply imaginary so far as the negotiators for the Union are concerned, it completely preempts the role of the arbitrator in dealing with discharges arising out of circumstances not anticipated, nor capable of anticipation, by the parties. What the parties did anticipate was that “disputes” would arise concerning the “interpretation” of the contract, in this case whether a discharge that was supported by the rules was nonetheless supported by “good cause,” as that term might be construed in light of all the circumstances. Since such a dispute occurred in this case, it was for the arbitrator to decide, and the district court erred in concluding that the dispute was not arbitrable.
The company makes a pleading point, however, in addition to its argument concerning the scope of arbitrability under the contract. The employer also argues that even if, as we conclude, this dispute was subject to arbitration as a matter of construction of the collective bargaining agreement, still the arbitrator exceeded the scope of the issue as it was submitted to him. The contract itself provides that the arbitrator “shall be limited to the particular dispute in question .. .. ” The employer argues that the “particular dispute in question” submitted to arbitration in this case was the issue of racial or union-based discrimination, without respect to discrimination in the meting out of discipline on any other basis. The arbitrator’s report does not support this contention, however. That report recites that the company argued, and the Union disputed, that there was good cause for West’s discharge. We think it was for the arbitrator to decide just what the issue was that was submitted to it and argued by the parties. “Once it is determined, as we have, that the parties are obligated to submit the subject matter of a dispute to arbitration, ‘procedural’ questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator.” John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 557, 84 S.Ct. 909, 918, 11 L.Ed.2d 898 (1964).
REVERSED and REMANDED for enforcement of the arbitrator’s award.
Question: What is the total number of appellants in the case that fall into the category "groups and associations"? Answer with a number.
Answer:
|
songer_casetyp1_7-3-3
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - commercial disputes".
CURB AND GUTTER DIST. NO. 37 OF CITY OF FAYETTEVILLE, ARK., et al v. PARRISH.
No. 11544.
Circuit Court of Appeals, Eighth Circuit.
April 2, 1940.
' Rehearing Denied April 22,1940.
Clifton Wade and O. E. Williams, both of Fayetteville, Ark., - for appellants.
Henry L. Fitzhugh, of Fort Smith, Ark. (Charles D. Atkinson, of Fayetteville, Ark., and Wallace Townsend, of Little Rock, Ark., on the brief), for appellee.
Before WOODROUGH and THOMAS, Circuit Judges, and NORDBYE, District Judge.
NORDBYE, District Judge.
This appeal involves the validity of two companion municipal improvement districts of the City of Fayetteville, Arkansas— Paving District No. 36 and 'Curb and Gutter District No. 37 — and the right of the trustee to maintain the suits in the United States District Court and to obtain judgment against the District on the bonds. The parties will be referred to as below. It was stipulated that the disposition of the issues on this appeal would control the determination of the companion case, Paving District No. 36.
The District contends that the court erred in overruling its motion to dismiss the trustee’s bill of complaint as amended for the reasons that (1) (a) the trustee is a mere nominal party suing in a representative capacity and that the citizenship of the bondholders, and not of the trustee, determines the question of diversity, and (b) that the appointment of the plaintiff as substitute trustee was a fraudulent scheme and fictitious arrangement for the purpose of creating a spurious ground for federal jurisdiction ; (2) that the court erred in refusing to sustain the District’s plea of res judicata; (3) that the bonds were invalid because of a jurisdictional defect, in that there was an insufficient number of property holders as signers to the petition for the creation of the District; and (4) that the court erred in holding that the assessors of said District made and filed assessments of benefits therein.
" This proceeding involves the validity of $21,500 five per cent bonds, issued by the District to improve the streets of the City of Fayetteville, Arkansas. The execution and sale of the bonds are admitted. Further, it is not controverted that the District has received the funds for which the bonds were sold and that the money has been used for the improvements contemplated. The bonds in suit were issued pursuant to procedure which was regulated by the Arkansas statutes. On June 6, 1927, a petition signed by seventeen purported property owners requested the formation of the District. An ordinance of the City of Fayetteville stating the boundaries and the purpose of the District was passed by the City Council and thereafter published in a local newspaper. On or about June 13, 1927, a second petition was filed by the same property owners. The abstracter’s certificate which was filed in connection with this petition showed the total assessed value of all property in the District and the value of the property owned by the signers to the petition. Notice was thereafter given of the filing of the second petition by publication, and on July 11, 1927, at a hearing before the 'City Council, the said Council determined that the signers of the petition constituted a majority in value of the owners of the property within said District and appointed three persons as a Board of Improvement for said District. No suit was brought in Chancery Court of Washington County, Arkansas, within the thirty days’ limitation for review of the action of the City Council. Section 5652, Crawford and Moses’ Digest, Statutes of Arkansas. The Board of Improvement, according to the records, took oath of office as required by the statute and the same was filed with the City Clerk. Estimate of costs was procured, assessors were appointed, and assessments of benefits were apparently returned and filed. In April, 1928, the City Council passed an ordinance assessing benefits and published the same as required by statute. Thereafter, the Commissioners of the District issued a series of bonds aggregating-$21,500, with interest at five per cent per annum, maturing serially on November 1st of the years 1928 to 1937, both inclusive. These bonds were secured by a pledge or mortgage pledging the future credit, assessed benefits, and other resources of the District. The American Southern Trust Company of Little Rock was named trustee, and the pledge was duly filed in the office of the Circuit Clerk.
The District offered the bonds to M. W. Elkins & Company, of Little Rock, which, prior to the purchase, submitted a duly certified transcript of the proceedings before the City Council and the Commissioners to its counsel, an experienced firm of bond attorneys, who rendered an opinion approving the bonds, and thereafter Elkins & Company paid the full amount of the purchase price, which was not less than that allowed by law. The bonds were thereafter sold to the public before maturity in the due course of business and the purchasers of said bonds are bona fide holders for value. It appears that the bonds are in the usual form and on the face contain the following covenant: “ * * * The said Curb and Gutter District Number 37 hereby covenants that the said district has been duly organized in accordance with Section 5647 to 5743 of Crawford & Moses’ Digest of the Statutes of the State of Arkansas, and the acts amendatory thereof, under ordinances duly passed by the City Council of the said City of Fayetteville for that purpose ; that the real property in said district has been duly assessed as required by law for the making of the improvement aforesaid, that said assessment of benefits has been duly pledged for the security of this bond; and that all conditions and things required to be done precedent to and in the issuing of this bond have been done, have happened and have been performed as required by law.”
The court found that the Commissioners and the property owners knew of the creation of the District and the objects and purposes thereof; that they knew of the sale of the bonds and that the proceeds of the sale were used to defray the expenses in connection with the improvements. No person questioned the validity of the District, or of the bonds, until long after the improvements were made. Some $7,083 had been collected oil the assessments and applied on the bonds prior to any attack on the validity of the proceedings.
On July 12, 1931, after default in the payment of the bonds, an action was commenced in the Washington County Chancery Court in the name of the Commissioners of said District against the owners of delinquent land in said District for the purpose of collecting assessments alleged to be due on said lands. One E. M. Ratliff was one of the Commissioners and also one of the land owners. An answer was interposed denying the existence of a legal District and alleging other irregularities. This action lay dormant until 1934. The attorney who had instituted the suit on behalf of the Commissioners withdrew before trial in that the District apparently had no funds with which to pay him, and a Mr. Townsend and a Mr. Atkinson thereafter assumed the representation of the Commissioners in that proceeding. On October 19, 1934, a decree was rendered in 'Chancery Court sustaining the position of the property owners. The court held that the bonds were invalid because the original petition of the property owners had an insufficient number of qualified signers, and that no assessment of benefits had been made or filed. It determined that the assessment was void. No appeal was perfected from this decree.
It was on November 15, 1930, that the American Southern Trust Company, the trustee, became insolvent. No successor trustee was appointed until March, 1936, when H. E. Parrish, an officer of the Citizens National Bank, Fort Scott, Kansas, which bank owned a bond of the District, was appointed. Parrish did not participate in the state court litigation, and in December, 1936, as trustee, he instituted the present action on the bonds and for mandamus to enforce their payment. This proceeding was commenced in the United States court. The District defended, contending that the jurisdiction of the federal court was fraudulently invoked; that the Chancery Court decree was res judicata; that an insufficient number of property owners had signed the original petition; and that the assessors never filed an assessment of benefits. The trial court determined all these issues in favor of the bondholders, and this appeal followed.
The amount in controversy exceeds $3,000, and the trustee and the District are of diverse citizenship. That the citizenship of the trustee, and not of the bondholders, is determinative of diversity seems free from doubt. The plaintiff, a citizen of Kansas, was appointed in the place and stead of the original trustee, which had become incapacitated by reason of insolvency. The appointment of the successor trustee was properly made and recorded, all in accordance with the provisions of the pledge. No lengthy discussion is necessary to demonstrate that this is an active trust and not a dry or passive one; that is, the trustee is clothed with certain definite and exclusive 'powers, such as the right to bring mandamus 'proceedings and to require 'the levying of the assessment of benefits. It is his duty to ■ enforce the bond obligation due the bond-'holders and to bring suit for'such purpose.. The pledge, in reciting the duties of the trustee, contains the following-: •
“Said district further agrees that if default is made in the payment of any bond or. coupon, the said trustee may declare the entire debt or any part thereof due and shall do so on request of a majority in amount of the holders of the bonds secured by this pledge. and may institute, in any court having chancery jurisdiction’ a proceeding for thé fore-. closure of this pledge, and in such proceed-. ing it is agreed that such court, shall, at the request of said trustee, appoint a receiver to collect all of said assessments and all assessments that may hereafter be levied by said council of said city.
“ * * * The said trustee may, in the ■ name of said Board of Improvement, pro-. ceed by mandamus, or in any other manner that it thinks best, to compel the levying of.such assessments as may. be required to. pay all of said bonds with interest and expenses.”
Rule 17(a) of the Federal Rules of Procedure, 28 U.S.C.A. following section 723c, provides that a “trustee of an express - trust * * * may sue in his own name without joining with him the party for whose benefit the action is brought.” All authorities recognize -that where we have an active trust the citizenship of the trustee controls. Mathis v. Hemingway, 8 Cir., 24 F.2d 951; Dodge et al. v. Tulleys et al., 144 U.S. 451, 455, 12 S.Ct. 728, 36 L.Ed. 501. See, Simkins Federal Practice, Third Edition, Section 88. It' follows that this Court'has jurisdiction by reason of diversity of citizenship and the statutory amount being-involved, unless federal jurisdiction was fraudulently.or collusively obtained. Title 28 U.S.C.A. § 80, provides: “If in any suit commenced in a district court, or removed from a State court to a district court of the United States, it shall appear to the satisfaction of the said district court, at-any time after such suit has been brought or removed thereto, * * * that the parties to said suit have been improperly, or, coll.usively made or joined, either as plaintiffs or defendants, for the purpose of creating a case cognizable or removable under this chapter, the said district court shall proceed no further therein, but shall dismiss the suit or remand it to the court from which it was removed, as justice may require * * *.”
The original trustee, by reason of insolvency, could not perform the duties of trustee. See, Pouncey v. Fidelity National Bank & Trust Company, 8 Cir., 85 F.2d 486. It was no longer capable of acting as a representative of the bondholders, and a successor, trustee Had to be appointed. The bondholders were clothed under the pledge with the absolute right to appoint a successor trustee under'such circumstances, and the duty of the court to give full effect to the contract rights of the bondholders is. clearly pointed out in Guardian Savings & Trust Co., Trustee, v. Road Improvement District, 267 U.S. 1, 45 S.Ct. 201, 69 L.Ed. 487. They were not responsible for the in, capacity of the original trustee, and it is ‘ not contended that there was any collusion in that regard. Nor was the original trustee displaced for the purposes of this suit. An examination of the pledge agreement reflects no' limitation or restrictions upon the bondholders’ right to appoint a successor trustee under such circumstances. Undoubtedly, they could appoint a resident or non-resident person to act'in that capacity. But it is urged -that a non-resident trustee was selected in order to effect diversity of citizenship, and thus invoke the jurisdiction of this Court and circumvent the decree of the Washington Chancery Court, which had already been rendered.
It is conceded that the bondholders deemed it advisable to appoint a non-resident trustee so that suit could be lodged in this Court. When the trustee was examined, he frankly admitted that he was informed by the attorney for the bondholders that he was being selected so that diversity of citizenship would exist in the contemplated action against the District. However, under the circumstances herein, the motive which may have actuated or induced the bondholders to select a non-resident trustee is immaterial. The appointment and qualification of the plaintiff trustee was real and bona fide. It was not merely colorable or feigned. No wrongful act was perpetrated in invoking the jurisdiction of this Court. In other words, the bondholders simply did that which was lawful and no fraud can be perpetrated thereon.’ It is not wrongful for parties to prefer to litigate the subject matter of a controversy in federal court if no improper act is done in furtherance thereof. In Bullard v. Cisco, 290 U.S. 179, 54 S.Ct. 177, 78 L.Ed. 254, 93 A.L.R. 141, the Supreme Court considered the right of transferees of corporate bonds and coupons payable to bearer to sue in federal court where it appeared that the transferrers were disabled from proceeding in that court. The transferees consisted of four non-resident persons named as a bondholders’ committee. The court held that the arrangement created an express trust with the transferees as trustees and the transferrers as beneficiaries. It was held that, under Section 41(1), Title 28 U.S.C., 28 U.S.C.A. § 41(1), the citizenship of the trustees controlled, and in sustaining the jurisdiction of the federal court, we find the following statement (290 U.S. at page 188, 54 S.Ct. at page 180, 78 L.Ed. 254, 93 A.L.R. 141): “ * * * With one accord prior decisions of this Court show that the right of a transferee of corporate bonds and coupons, payable to bearer, to sue in a federal court, notwithstanding a disability of his transferrers in that regard, turns on the nature of the transfer — whether it be real or only a colorable device to enable the transferrers, through the favor and name of the transferee,- to invoke a federal jurisdiction which they could not invoke in their own right.” See, also, Royal Oak Drain District v. Keefe, 6 Cir., 87 F.2d 786.
So it is immaterial that the object of a plaintiff, for instance, in joining a resident defendant, is to defeat a removal to federal court if by state law there is joint liability. In Mecom v. Fitzsimmons Co., 284 U.S. 183, at page 189, 52 S.Ct. 84, at page 87, 76 L.Ed. 233, 77 A.L.R. 904, in an action brought by an administrator, the court stated: averment and proof that resident and nonresident tort-feasors are jointly sued for. the purpose of preventing removal doe's not amount to an allegation that the joinder was fraudulent, and will not justify a removal from the state court. Illinois Central R. Co. v. Sheegog, 215 U.S. 308, 30 S.Ct. 101, 54 L.Ed. 208; Chicago, B. & Q. R. Co. v. Willard, 220 U.S. 413, 31 S.Ct. 460, 55 L.Ed. 521; Chicago, R. I. & P. R. Co. v. Schwyhart, 227 U.S. 184, 33 S.Ct. 250, 57 L.Ed. 473.”
“ * * * Tt is nevertheless insisted that, if the petitioner’s appointment was accomplished for the purpose of avoiding diversity of citizenship and consequent removal into the United States court, the parties to that proceeding — the petitioner, the widow, and her attorney- — were in a conspiracy to defeat federal jurisdiction.
“But it is clear that the motive or purpose that actuated any or ail of these parties in procuring a lawful and valid appointment is immaterial upon the question of identity or diversity of citizenship. * * * It has been uniformly held that, where there is a prima facie joint liability,
Thus, where a sale is real and absolute — not merely colorable — and the grantee brings suit in federal court, the court will not, in passing upon the question of federal jurisdiction, inquire into the motives of the parties in making the transfer. Board of Education v. James, 10 Cir., 49 F.2d 91. Nor is cooperation between the parties in bringing a case in the United States courts necessarily objectionable. “There is nothing unlawful or contemptuous in co-operation in submitting genuine private difficulties to the arbitrament of a federal court.” May Hosiery Mills v. United States District Court, 9 Cir., 64 F.2d 450, 454. Even where residence has been changed for the purpose of effecting federal jurisdiction, the right to proceed in federal court is not affected if the change of residence has been actual and bona fide. Shoaf v. Fitzpatrick, 6 Cir., 104 F.2d 290. The contention that the institution of the suit in federal court was prompted by an intention to defeat fraudulently the chancery decree, is too vulnerable to merit any discussion. This Court, as well as any state court that might obtain jurisdiction of an action in behalf of the bondholders against the District, is governed by the same law and facts as to whether the decree is res judicata. Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. The identical question would be before either court.
Nor is there any showing of collusion. Bouvier defines collusion as “an agreement between two or more persons to defraud a person of his rights by the forms of law, or to obtain an object forbidden by law.” 1 Bouv.Law Diet., Rawle’s Third Revision, p. 526. It is generally recognized that collusion in law embraces either a fictitious or assumed state of facts in order to obtain a judicial determination, or an actual existence of issues which have been corruptly arranged beforehand in order to obtain the court’s determination. The Supreme Court stated in Dickerman v. Northern Trust Co., 176 U.S. 181, 190, 20 S.Ct. 311, 314, 44 L.Ed. 423, that collusion “implies the existence of fraud of some kind, the employment of fraudulent means or of lawful means for the accomplishment of an unlawful purpose.” Here, we have a suit between the real parties in interest on bona fide issues, which by reason of diversity are cognizable in this Court. “So long as no improper act was done by which the jurisdiction of the Federal court attached, the motive for bringing the suit there is unimportant.” In re Metropolitan Railway Receivership, 208 U.S. 90, 111, 28 S.Ct. 219, 225, 52 L.Ed. 403.
The decree of the Washington Chancery Court of Arkansas was rendered on October 19, 1934. The parties to that suit were the Commissioners of the District as plaintiffs, and the owners of the delinquent lands as defendants. No bondholder was a party. It is earnestly contended, however, that the attorneys Townsend and Atkinson, while ostensibly representing the Commissioners in the chancery suit, were in fact acting for the bondholders and that the decree is res judicata here. It does appear that Mr. Townsend, one of the attorneys for the trustee -in the present proceeding, interested himself in the chancery suit and procured Mr. Atkinson to assist him; that Elkins & Company, the bond brokers, retained Mr. Townsend to assist in the prosecution of that proceeding. It further appears that,.after the adverse decree in Chancery Court, Mr. Townsend advised the bondholders to appoint Mr. Parrish as trustee and commence an action in federal court. Townsend, however, testified'that he represented no 'bondholder when he assisted at the trial of the chancery suit; that Elkins & Company owned no bonds at that time and that no 'bondholders- had retained him; that the only interest Elkins & Company had in the state proceeding was to maintain, if possible, the standing of its bond -house, in that it feared 'adverse criticism if the bonds were held invalid. There was introduced in evidence a letter written by Mr. Townsend which might be held to be an admission that he did represent one or more bondholders in the state court proceeding. But at the trial hereof, he explained' this letter by testifying that his -reference to bondholders as his clients referred to Elkins & Company. He further testified that the first time any bondholder consulted him about the matter was after the decree in Chancery Court. Both Townsend and Atkinson testified that, not only did they not represent any bondholders, but that they did not even know a bondholder until after the decree had been filed in the state court. The court herein made findings that the bondholders were not bound by the chancery suit. Its finding thereon reads: “XXXIII. That neither the plaintiff nor the holders of the bonds of the defendant district were parties to the suit filed in Washington Chancery Court by the defendant district for the purpose of foreclosing the lien of its assessed benefits against delinquent lands in the district, and that C. D. Atkinson and Wallace Townsend did not represent the plaintiff or the bondholders in that suit.”
The issue of the participation of the bondholders in state court was upon conflicting testimony. Considerable oral evidence was considered by the court. The testimony denying participation of the bondholders in the state suit was substantial, and this Court should not reverse the determination which rests upon an issue of fact. It is recognized that the Commissioners under the circumstances of the state court suit do not, and did not, represent the bondholders. Road Improvement District No. 1 v. Delinquent Lands, 158 Ark. 58, 249 S.W. 367; Road Improvement District No. 7 v. Guardian Savings & Trust Co., 8 Cir., 8 F.2d 932. The only way in which the bondholders could be bound by that decree would be through Townsend and Atkinson as their representatives. No bondholder was a party otherwise. It follows, therefore, that if the bondholders are not privy to the parties in the action or bound by actual participation in their own interest, the decree of the Chancery Court was not res judicata against them. The court having made a finding that Townsend and Atkinson did not represent -the bondholders and there being substantial evidence to support this finding, we should not disturb it.
The applicable statutes governing municipal improvement districts in Arkansas at the time that this District was organized was found in Sections 5649 through 5743 of Crawford & Moses’ Digest. The District offered evidence to support its contention that the statutory number of property owners did not sign the first petition. It contends that, of the seventeen purported signers, not more than nine property owners signed the original petition, when the law requires ten. Further, that at least one of the nine signers, to wit, School District No. 1, was not an owner of record at the time •the petition was filed. Evidence was also offered to the effect that one M. S. Powers, a purported signer, had not affixed his signature to the petition, but that his signature was merely simulated. The necessity for ten qualified signers of the first petition is jurisdictional, and, according to the Arkansas decisions, if the original petition failed to obtain ten qualified property owners as signers, the entire proceedings are void. Board of Improvement District No. 60 v. Cotter, 71 Ark. 556, 76 S.W. 552. But the evidence regarding the number of signers was conflicting, and there was substantial evidence that ten property owners did sign the original petition. The trial court found: 'TV. * * * That said first petition was filed with the city clerk of the City of Fayetteville on the 6th day of June, 1927, and is signed by seventeen persons, and the court finds that ten or more of such signers were owners of real property within the limits of said improvement district at the time petition for said district was filed with the city clerk.”
We cannot say that this finding is clearly against the weight of the evidence. Some of the testimony upon which the defendant District relies was given from memory as to events ten years before. It is fair to assume that the court found that much of defendants’ testimony, in view of all the circumstances, was not overly convincing. In passing, it may be noted that, while the Washington County Chancery Court found that there were but nine signers to the original petition, defendants’ own testimony in this proceeding accounted for two property owners who had signed the petition and who were not included in the names listed by the Chancexy Court. Defendants produced an abstracter who certified that, of the seventeen pxxrported signers, seven were not property owners. His testimony, however, would indicate that there were ten bona fide signers. The original certificate of another abstracter filed in April, 1928, certified that all of the signers were owners of real property within the District at the tixne the petition was filed. The City Council found and certified that the second petition was signed by the requisite number of property owners, and that the signers constituted a majority in value of the owners of the property within the District. The same purported signatures appear on both petitions. It is recognized that the finding of the City Council in this regard is prima facie correct. Dunbar v. Street Improvement Distinct, 172 Ark. 656, 290 S.W. 372. The same statute requires that the Council shall, in determining whether the signers constitute a majority in value, refer only to the records of deeds in the office of the recorder of the county. No unrecorded instrument shall be considered. No such provision with reference.to the method by which owners of property shall be determined is found in the statute governing the initial petition. It would seem that this finding of the City Council bears on the verity of the signatures to the original petition which is challenged herein, and supports the trustee’s contention that the signers to the original petition were actual property owners in the District. The burden rests upon the defendant to establish that the organization of the District was bottomed on an initial petition which was not signed by the requisite number of property owners. The presumption of validity has not been overcome, and we are not prepared to hold, in view of all the circumstances, that the court erred in giving greater weight to recitals and covenants in official records than to the evidence given by persons from memory. Tyronza Special School District v. Speer, 8 Cir., 94 F.2d 825.
Similar observations may be made regarding defendants’ position that the assessment of benefits was not properly made and filed. The record of the City Council proceedings, certified by the City Clerk, details a complete recital of the steps taken and strongly controverts the contention of the defendant in this regard. The court found: “XII. The City Council of Fayetteville, appointed Geo. N. Cade, G. E. Ripley and M. S. Powers as the Board of Assessment of the benefits to be received by each lot or block or other subdivision of land within said district by reason of the proposed local improvement, and that said assessors, before entering upon the discharge of their duties, took the oath required by statute, and an assessment of benefits was deposited and filed in the office of the City Clerk of Fayetteville, Arkansas.”
One of the assessors testified in behalf of the defendants to the effect that the signature on the oath of assessors “resembles my signature, but I didn’t sign it.” However, the record in the Washington Chancei'y Court indicates that this same witness, in testifying regarding his signature on the assessment roll, stated, “I don’t have any remembrance of signing it, but that looks like my signature.” It is true that he insisted during the trial herein that his signature on the assessment oath was not genuine, and that he never took the oath of office as an assessor. However, it is evident from a reading of his testimony that his memory regarding the incidents that occurred was most hazy, and frequently in response to questions with reference to important matters that took place during that period, he •contented himself by answering, “I don’t remember.” Another assessor who testified did remember taking the oath of office, but denied signing the assessment roll, or that he participated in making the assessment. The third assessor was dead. The record, however, shows that all the assessors took their statutory oaths on October 3, 1927, before a notary public. The records of the City Council recite the filing of the assessment of benefits on the same date. On October 4, 1927, the notice stating that the assessment was filed with the. City Clerk on October 3rd was published in the Fayetteville Democrat. It was on October 17, 1927, that the City Council passed the ordinance assessing benefits in District Number 37. On December 12th, the assessors requested permission, according to the records, to withdraw the assessment roll for the purpose of correcting “errors and description.” A revised roll was filed with the City Clerk on January 16, 1928, and notice thereof duly published on January 19th. On April 23, 1928, the City Council passed an ordinance levying the assessment of benefits, the ordinance being published on April 24th. In attacking these proceedings collaterally, the defendants assumed the burden of proof, and we cannot say that the record referred to, which clearly sustains the regularity of all these proceedings, has been overcome by oral testimony. Tyronza Special School District v. Speer, supra, 94 F.2d at page 830.
But if it be conceded that there is question as to the verity of one or more of the signatures which were affixed to the assessment roll, we are -convinced from the record herein that the assessment roll was actually on file with the City Clerk during this period. It is clear that the City Council had before it an assessment roll for this District purporting to be signed and filed by the assessors. There is no contention that the City Council was a party to any fraudulent scheme, and it must be assumed that it acted in good faith and enacted into an ordinance an assessment roll which it believed to be bona fide and which was on file. The property owners received notice through publication of the hearing as to the fairness and validity of the assessments which were to be levied on their property. Section 5668 of the Arkansas Statutes, Crawford & Moses’ Digest, makes it mandatory for interested persons to review the assessment by bringing an action in Chancery Court within thirty days after the assessment ordinance is published, and, in absence of such review, the action of the ’City Council is final and conclusive. This section of the statute provides: “Within thirty days after the passage of the ordinance mentioned above [the asséssment ordinance], the recorder or city clerk shall publish a copy of it in some newspaper published in such town or city for one time. And all persons who shall fail to begin legal proceedings within thirty days after such publication for the purpose of correcting or invalidating such assessment shall be forever barred and precluded.!’
That no objection was made to the assessment by direct attack is therefore fatal to the collateral attack that is now being made upon the validity of the assessment roll. The statutory provision of right of review gives to the owner his day in court, and such provision has uniformly been held to be- reasonable. Kirst v. Street Improvement District, 86 Ark. 1, 109 S.W. 526; Boles v. Kelley, 90 Ark. 29, 117 S.W. 1073; Lewellyn v. Street Improvement District, 172 Ark. 496, 289 S.W. 470.
The Supreme Court of Arkansas in Webster v. Ferguson, 95 Ark. 575, 579, 130 S.W. 513, 514, in referring to Section 5685, Kirby’s Digest of Arkansas, which is the same as Section 5668 of Crawford & Moses’ Digest, stated: “The defendants were barred and precluded from attacking the assessments of benefits on the ground the assessors did not take the oath prescribed by law. * * * And the statute provides that all persons who shall fail to begin legal proceedings within 30 days after such publication for the purpose of correcting or invalidating such assessment shall be forever barred and precluded. Kirby’s Dig. 5685. So the defendants having failed to begin such proceedings within the time prescribed are barred by this statute from attacking the assessment because the assessors did not take the proper oath; it not being jurisdictional. Stiewel v. Fencing District, 71 Ark. 17, 24, 70 S.W. 308, 71 S.W. 247.” See, also, Ingram v. Thames, 150 Ark. 443, 234 S.W. 629; Thomas v. Street Improvement District, No. 296, 158 Ark. 187, 249 S.W. 590.
In conclusion, we may again emphasize that the bondholders’ money has been expended for such improvements and they are holders of bonds in good faith and innocent purchasers for value. The District obtained the money on its certificate that it had been legally organized, and that the real property had been duly assessed as required by law. It covenanted that the assessment of benefits had been pledged as security for the bonds, and that every statutory step necessary to be taken to perfect the District and to validate the bonds had been strictly observed. The statutes under which the District assumed to proceed are valid, and there is no. showing that the assessment levied is in any way inequitable. If any fraud was practiced, the bondholders are entirely innocent. The onus must fall on the District. Assuming, as we do, that the court was correct in finding that ten property owners signed the original petition and that this jurisdictional requirement had been complied with, it necessarily follows that any other irregularities complained of cannot now be raised. The City Council obtained jurisdiction by reason of the initial petition. Some three years elapsed before any objection was raised as to the regularity of the proceedings. If the District is to enjoy the improvements made, it must accept the burdens. The position of the District is therefore utterly void of any equity,.and it is estopped to attack collaterally the other steps taken in connection with the levying of the assessment upon the property owners who are benefited by the improvements. Road Improvement District v. Delinquent lands, supra; Road Improvement District v. Guardian Savings & Trust Co., supra; Watkins v. Griffith, 59 Ark. 344, 27 S.W. 234; Davis v. White, 171 Ark. 385, 284 S.W. 764; Hitchcock v. Galveston, 96 U.S. 341, 351, 24 L.Ed. 659; City of Bartlesville v. Holm, 40 Okl. 467, 139 P. 273, 9 A.L.R. 627; Moore v. City of Yonkers, 2 Cir., 235 F. 485; Jackson v. Denver, 41 Colo. 362, 92 P. 690. See, also, cases cited under note in 9 A.L.R. 634.
Error is predicated on the court’s refusal to receive certain
Question: What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"?
A. contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below)
B. disputes over government contracts
C. insurance disputes
D. debt collection, disputes over loans
E. consumer disputes with retail business or providers of services
F. breach of fiduciary duty; disputes over franchise agreements
G. contract disputes - was there a contract, was it a valid contract ?
H. commerce clause challenges to state or local government action
I. other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims)
J. private economic disputes (other than contract disputes)
Answer:
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songer_treat
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D
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the 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.
Rhea Dawn JONES, Plaintiff-Counter-Defendant-Appellee/Cross-Appellant, v. NEW YORK LIFE & ANNUITY CORPORATION, a Delaware corporation, Defendant-Counter-Claimant-Appellant/Cross-Appellee.
Nos. 91-4184, 91-4202.
United States Court of Appeals, Tenth Circuit.
Feb. 10, 1993.
Anthony M. Thurber, Salt Lake City, UT, for plaintiff-appellee.
Casey K. McGarvey, Salt Lake City, UT (and R. Stephen Marshall of Van Cott, Bag-ley, Cornwall & McCarthy, with him on the brief) for defendant-appellant.
Before TACHA, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and O’CONNOR, District Judge.
Honorable Earl E. O’Connor, U.S. District Judge for the District of Kansas, sitting by designation.
McWILLIAMS, Senior Circuit Judge.
Rhea Dawn Jones, widow of Kelly Jones, brought suit in the United States District Court for the District of Utah against New York Life & Annuity Corporation (New York Life), a Delaware corporation, as beneficiary under a policy of life insurance in the face amount of $100,000 issued to Kelly Jones by New York Life. Jurisdiction was based on diversity of citizenship. 28 U.S.C. § 1332(a)(1).
In her complaint, plaintiff alleged that before signing the application for insurance, Kelly Jones had in her presence “fully and truthfully disclosed all facts and information concerning [his] health history ... known to him in response to inquiries of defendant’s agent, who completed the application himself,” and that “[d]efen-dant’s agent knowingly or negligently omitted certain health information from the subject application despite having knowledge thereof from the responses given to his inquiries.” Plaintiff further alleged that New York Life issued its policy of whole life insurance in the face amount of $100,000 on the life of Kelly Jones with an inception date of August 8, 1984, and that plaintiff was named therein as beneficiary. It was further alleged in the complaint that Kelly Jones died on February 20, 1985, of natural causes and that thereafter New York Life “refused to pay all or any portion of the policy proceeds for the stated reason that [Kelly Jones] failed to disclose certain information concerning his previous health history in the application.”
In addition to seeking judgment for the face amount of the policy plus interest, plaintiff also sought punitive damages and, in support of that claim, alleged that the defendant’s denial of coverage was “willful, malicious, wanton or done with an intentional disregard for the rights and property of others.”
By answer, New York Life denied liability, alleging that it had rescinded the policy and had refunded premiums paid, with interest, after learning of fraudulent representations concerning Kelly Jones’ health history in the application for insurance. New York Life alleged that it had become aware of the fraudulent representations as the result of an investigation conducted subsequent to Kelly Jones’ death. By counterclaim, New York Life sought a judicial determination that the policy had been rescinded and that the defendant was relieved from all liability thereon.
The parties submitted to the district court a pretrial order, which was accepted by the court. The pretrial order contained a list of “Uncontroverted Facts,” which were “established by admissions in the pleadings or by stipulations of counsel.” The pretrial order also contained a recital of the contested issues of fact. At trial, numerous witnesses testified, and at the conclusion of the trial the district court took the matter under advisement. Some time later, the district court, in an unpublished 15-page opinion, made findings of fact and conclusions of law, the gist of which was that New York Life had improperly rescinded Kelly Jones’ life insurance policy and that his widow and beneficiary, Rhea Dawn Jones, was entitled to $100,000, the face amount of the policy. By amended judgment, the district court allowed the plaintiff prejudgment interest and accordingly entered judgment against New York Life for $164,300. In that amended judgment, the district court, without comment, stated that “plaintiffs claims for insurer bad faith, intentional infliction of emotional distress and punitive damages are dismissed, with prejudice and upon the merits.”
In No. 91-4184, New York Life appeals that part of the amended judgment which entered a judgment against it for $164,300. In No. 91-4202, plaintiff appeals that part of the amended judgment which dismissed her claim for punitive damages. 28 U.S.C. § 1291.
As indicated, the core of this dispute concerns the facts and circumstances surrounding the preparation and execution of the application for insurance, which took place in the Jones family residence. Present at that time were Kelly Jones, Rhea Dawn Jones, and the agent from New York Life, Richard Doerr. Also present were a brother and sister of Rhea Dawn Jones. Agent Doerr filled out the application.
Question No. 15 in the application reads as follows:
In last 2 years, has any such person had or been treated for (If “Yes” to (a) or (b), give name and full details in Quest. 18.)
(a) elevated blood pressure, heart murmur, irregular pulse, abnormal electrocardiogram, or diabetes?
(b) any lung, kidney, liver, pancreas, intestinal, circulatory, blood, brain, nervous system, or back disorder?
In response to question No. 15(a) in the application, the agent answered “No.” In response to question No. 15(b), the agent answered “Yes” and circled “back disorder.”
In response to question No. 18, which required “full details” if either question No. 15(a) or (b) was answered in the affirmative, agent Doerr wrote as follows:
# 15 Back injury, December ’82, complete recovery, Castleview Hospital, Dr. Potter, County Fairgrounds Rd., Price, Utah 84501.
Question No. 16 of the application read as follows:
In last 5 years, has any such person: (If “Yes” to (a) or (b), submit Conf. Form 17480 and give name if not Prop. Insured in Q. 18.)
(a) because of the use of alcohol or drugs, been counselled, treated, or hospitalized, or been absent from work or school?
(b) had any psychiatric, emotional, or mental health condition for which medical treatment or hospitalization was advised?
In response to both parts of question No. 16, agent Doerr answered “No.”
Based on the testimony of plaintiff and her sister, who was present at the time the application was prepared and executed, the district court found that Kelly Jones had in fact advised agent Doerr that he had high blood pressure and that agent Doerr had failed to note such in response to question No. 15(a). Agent Doerr testified that he had no specific recollection as to whether Kelly Jones disclosed his high blood pressure.
Based on the testimony of plaintiff and her brother, who also was present at the time the application was prepared and executed, the district court found that Kelly Jones had also advised agent Doerr that he had, from birth, suffered from Christmas Disease, a blood disorder similar to hemophilia, and that agent Doerr had again failed to properly record such in response to question No. 15(b).
As concerns question No. 16, the district court, on the basis of plaintiff’s testimony, found that agent Doerr had failed to ask Kelly Jones any question concerning alcohol or drug abuse and had nonetheless answered question No. 16 in the negative. Agent Doerr testified that he had no present recollection of having asked Kelly Jones that particular question.
The application was signed by agent Doerr, Kelly Jones, and Rhea Dawn Jones, although neither Kelly Jones nor Rhea Dawn Jones read the application before signing. Immediately above the three signatures appeared the following:
THOSE PERSONS WHO SIGN BELOW AGREE THAT:
1. All of the statements which are part of the application are correctly recorded, and are complete and true to the best of the knowledge and belief of those persons who made them.
2. No agent or medical examiner has any right to accept risks, make or change contracts, or give up any of NYLIC’s [New York Life Insurance Company] or NYLIAC’s [New York Life Insurance and Annuity Corporation] rights or requirements.
The district court found that at the time they signed the application both Kelly Jones and plaintiff knew that Kelly Jones suffered from high blood pressure and an incurable blood condition called Christmas Disease and that in 1983 Kelly Jones was counseled, treated and hospitalized due to his dependency on narcotic analgesic pain medication. The district court further found that New York Life issued a policy of life insurance in December 1984, effective August 8, 1984, on the life of Kelly Jones, that the policy, with a copy of the application attached, was received by plaintiff and the insured on February 13, 1985, and that Kelly Jones died on February 20, 1985, of arteriosclerotic cardiovascular disease. The district court further found that on June 7, 1985, New York Life sent plaintiff a notice of its rescission of the policy and a check for $56.09, a refund of the initial premium plus interest.
In its Findings of Fact and Conclusions of Law, the district court initially noted that the application contained at least two incorrect statements regarding Kelly Jones’ health history. We agree. In connection therewith, the district court observed that the plaintiff’s position was that these incorrect statements in the application were solely the fault of New York Life’s agent, Doerr, and that New York Life’s position was that the “source of the false representations” was Kelly Jones himself. Based on its findings regarding the facts and circumstances surrounding the preparation and execution of the insurance application, as discussed above, the district court concluded that Kelly Jones made no misrepresentation to agent Doerr, that the misrepresentations which were in the application were solely attributable to Doerr, and, further, that since Doerr was an agent for New York Life, his acts could not in anywise be attributed to Kelly Jones so as to bar plaintiff from recovery on the policy issued by New York Life.
The starting point of our discussion is Utah Code Ann. § 31-19-8(1), repealed in 1986, which provided as follows:
(1) All statements and descriptions in any application for an insurance policy or annuity contract, or for the reinstatement or renewal thereof, by or in behalf of the insured or annuitant, shall be deemed to be representations and not warranties. Misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless:
(a) fraudulent; or
(b) material either to the acceptance of the risk, or to the hazard assumed by the insurer; or
(c) the insurer in good faith either would not have issued the policy or contract, or would not have issued, reinstated, or renewed it at the same premium rate, or would not have issued, reinstated, or renewed a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise. (emphasis added)
The gist of the statute is that misrepresentations and omissions in an application for insurance will not prevent recovery under the policy unless such are: (1) fraudulent, or (2) material either to the acceptance of the risk or to the hazard assumed, or (3) the insurer would not have issued the policy if the true facts had been known to the insurer. In Berger v. Minnesota Mutual Life Insurance Company, 723 P.2d 388 (Utah 1986), the Utah Supreme Court held that the statutory grounds for rescission in Utah Code Ann. § 31-19-8(1) are disjunctive, not conjunctive, i.e. that an insurer need only prove one in order to invalidate the policy.
In its Conclusions of Law, the district court did recognize that, under the provisions of Utah Code Ann. § 31-19-8(1), New York Life “need only prove one of the grounds contained in § 31-19-8(1) in order for its rescission of the policy to be valid.” However, the succeeding conclusion of the district court was that “an insurer cannot avoid a policy by taking advantage of a misstatement in the application, material to the risk, not due to the insured’s bad faith,” citing J. Appleman, Insurance Law and Practice, § 9401 (1981). We believe this conclusion to be inconsistent with the meaning of the statute.
Although the district court did not discuss Theros v. Metropolitan Life Insurance Co., 17 Utah 2d 205, 407 P.2d 685 (1965), we find that case to have considerable bearing on the instant one. In that case, suit was brought on an insurance policy where the insurer refused payment based on misrepresentations in the application. It was conceded that certain answers to questions in the application were untrue and were material to the risk, that the insurer had relied on them, and that the insurer would not have issued the policy had it known the truth, at least not without a medical examination. In a pretrial hearing, the deposition of the insurer’s agent was published, in which the agent testified that he had filled out the application and, on his own initiative, had inserted false answers to questions in the application, although the insured had given him truthful information. The record did not affirmatively show that the insured had read the completed application before signing, and it was therefore apparently assumed that he had not. In this general setting, the state district court granted summary judgment for the insurer.
On appeal in Theros, the Utah Supreme Court affirmed the grant of summary judgment. In so doing, the Utah Supreme Court recognized as a “general rule” that “if an applicant gives truthful answers to the questions contained in the application, but they are falsely recorded by an agent of the insurer, then the latter cannot rely upon the falsity of such answers to avoid liability under the policy issued upon the application in the absence of fraud, collusion, actual knowledge of the insured or the existence of circumstances from which constructive knowledge of such falsity might be imputed to him.” 407 P.2d at 688.
At the same time, the Utah Supreme Court in Theros recognized what it also characterized as the majority rule—“that an insured is under a duty to read his application before signing it, and will be considered bound by a knowledge of the contents of his signed application.” Id. In connection therewith, the Utah Supreme Court spoke as follows:
The facts here presented provide absolutely no basis for applying any exception to the basic contract law. The record is devoid of any facts or circumstances that would indicate or imply that Theros was by fraud, accident, misrepresentation, imposition, illiteracy, artifice or device reasonably prevented from reading the application before signing it. Therefore, he is, by law, conclusively presumed to have read the application and his beneficiary is bound by the contents thereof It therefore follows that the lower court should be affirmed, (emphasis added)
As indicated, we read the district court’s initial and critical finding to be that Kelly Jones made no misrepresentation to agent Doerr, and that the misrepresentations in the application were those of Doerr, and that under the circumstances of the case Kelly Jones, and his widow, were in no wise bound by Doerr’s misrepresentations. We think such findings are at odds with the holding in Theros that where an applicant gives verbal responses to an insurer’s agent, who then fills out the application, the applicant has a duty to read the application before signing it and make certain his verbal responses have been correctly recorded, and that in the absence of fraud, accident, misrepresentation, imposition, illiteracy, artifice or device (any of which would reasonably prevent the applicant from reading the application before signing), the applicant, by his act of signing the application, “is, by law, conclusively presumed to have read the application and his beneficiary is bound by the contents thereof.”
In the instant case, nothing in the record indicates or suggests that Kelly Jones was somehow tricked or led into signing the application without reading it, and the district court did not find, or intimate, that such was the case. Kelly Jones simply signed the application without reading it, and, under Theros, he is bound by the misrepresentations contained therein.
However, even though Kelly Jones made misrepresentations in his application for insurance, under Utah Code Ann. § 31 — 19— 8(1), the plaintiff may still recover under the policy unless the insurer establishes that the misrepresentations were either fraudulent, or material to the risk assumed, or that the insurer would not have issued the policy if he had known the “true facts.” Since the district court held that Kelly Jones was not bound by agent Doerr’s misrepresentations, we do not regard the district court as having ruled on any of the three alternative statutory grounds by which New York Life could prevent recovery on the policy. On remand, the district court should consider and rule on those matters.
In this court, the plaintiff’s basic position is that even assuming that there were misrepresentations in the application, which Kelly Jones adopted by his act of signing the application, New York Life did not rely on the misrepresentations in issuing the policy, and that only after conducting its own, but limited, investigation of the matter, did it decide to issue the policy. In this regard, there is evidence that New York Life inquired of one of Kelly Jones’ doctors concerning any blood disorder and also required Kelly Jones to sign a subsequent statement that he had no blood problem.
We cannot tell from the record before us whether New York Life’s reliance on the misrepresentations in the application was an issue in the trial. The central issue in the district court certainly was whether Kelly Jones made misrepresentations in his verbal responses to agent Doerr’s questions, or whether Jones made truthful statements concerning his medical history and agent Doerr incorrectly recorded those responses, and, if the latter, whether Kelly Jones was bound by agent Doerr’s incorrect answers in the application.
The closest thing to suggesting nonreliance by New York Life on misrepresentations in the application appeared in paragraph 15 of the complaint, where plaintiff alleged that assuming misrepresentation or omission of fact in the application, New York was “estopped from claiming ignorance of such facts at the time it issued the subject policy by reason of the knowledge possessed by its agent Richard C. Doerr.” Also, in the pretrial order, one of plaintiff’s claims is said to be based on whether “defendant had a duty to conduct a reasonable investigation into the insured’s health history from information provided to its agent which inquiry would have disclosed the true facts.”
Be all that as it may, nothing indicates that the district court made any finding that in issuing the policy to Kelly Jones New York Life did not rely on the statements in the application and instead relied on its own investigation, or that New York Life was “on notice” and should have made a more complete check of the matter. We cannot find that the district court reached the issue upon which plaintiff has primarily relied in this court.
In line with the foregoing, we reject Jones’ suggestion that Hardy v. Prudential Insurance Company of America, 763 P.2d 761 (Utah 1988), requires affirmance. In that case, suit was brought on a policy of life insurance, and, on motion, summary judgment was entered for the insurer on the ground that the insured — not the agent — had made misrepresentations in the application. On appeal, the Utah Supreme Court reversed and held that whether the insured made misrepresentations in the application was a question of fact, not one of law. We parenthetically note that in thus holding, the Utah Supreme Court stated that it did not need to then decide whether a misrepresentation, “if any,” was fraudulent or material or whether the policy would have been issued if the insurer had known the true facts, as provided for in Utah Code Ann. § 31-19-8(1). In that general setting, the Utah Supreme Court stated that an insurer could not escape liability on a policy if it is established that “there should have been no actual reliance on applicant’s misrepresentations, concealment or omissions,” citing Major Oil Corp. v. Equitable Life Assurance Society of Utah State, 457 F.2d 596 (10th Cir.1972). In our case, whether the issue of “reliance” was before the district court is unclear, though it is clear that the district court did not rule on that particular question.
In her complaint, Jones sought punitive damages based on New York Life’s intentional infliction of emotional distress. The pretrial order identified one of plaintiff’s claims as based on “bad faith conduct.” In its findings and conclusions holding that plaintiff was entitled to judgment in the face amount of the policy, the district court did not mention plaintiff's claim for punitive damages. In the amended judgment, by which time plaintiff had apparently asked for a trial of her claim for punitive damages, the district court, without explanation, simply dismissed the claim for punitive damages with prejudice and on its merits.
By No. 91-4202, plaintiff appeals the dismissal of her claim for punitive damages, claiming that the trial of this matter was limited to the defendant’s counterclaim based on rescission and that her claim of punitive damages was reserved for future consideration, pending the outcome of defendant’s counterclaim. New York Life argues that plaintiff’s various claims and its counterclaim were all tried at the same time, and, alternatively, suggests that along the way plaintiff abandoned her claim for punitive damages.
We find nothing in the record to indicate why the district court dismissed plaintiffs claim for punitive damages. It would be difficult for us to affirm this order when we do not know the reason for it; therefore, that portion of the judgment dismissing the plaintiffs claim for punitive damages should be vacated and the claim for punitive damages remanded for further consideration, depending again, of course, on the ultimate determination of New York Life’s liability under the policy.
In No. 91-4184, the judgment is reversed and the cause remanded with the direction that further proceedings be consonant with the views herein expressed. In No. 91-4202, the judgment is vacated and the cause remanded with direction that further proceedings be consonant with the views herein expressed.
. As concerns question No. 15(b), the district court found, alternatively, that the recorded answer did not assert a fraudulent or material misrepresentation because it gave New York Life actual knowledge of the blood disorder in that checking the "yes” box for question No. 15(b) could have been construed to mean that Kelly Jones suffered all the ailments listed in question No. 15(b), including blood disorder, even though only "back disorder” was circled. We are not persuaded by this reasoning. It ignores the "explanation” in question No. 18 of the "yes" answer to question No. 15(b), where the only reference was to a "back injury” suffered in December 1982, from which there had been "complete recovery.” It also disregards the parties’ stipulation in the Pretrial Order that “[t]he facts set forth in the application, paragraph 15, ... are incorrect and misrepresent the true fact that Kelly R. Jones ... from his birth had a genetic blood condition known as Christmas Disease, a disorder related to hemophilia" (emphasis added).
. Immediately above the insured's signature on the application appeared the following printed statement: "I have read the foregoing answers before signing. They have been correctly written, as given by me, and are true and complete. There are no exceptions to any such answers other than as stated therein.” 407 P.2d at 687.
. As above stated, the district court in the instant case declared that "an insurer cannot avoid a policy by taking advantage of a misstatement in the application, material to the risk, not due to the insured's bad faith,” citing J. Appleman, Insurance Law and Practice, § 9401 (1981). The plaintiff in Theros also relied on that same language from Appleman. The Utah Supreme Court held, in effect, that such language was not controlling where the insured signed the application without reading it.
. On December 9, 1984, which was prior to the actual issuance of the policy, at the request of New York Life, Kelly Jones signed a statement wherein he stated he had "never been diagnosed or been treated for a blood condition." The district court found that although Jones “knew” he had Christmas Disease, he nonetheless had never been "diagnosed” or "treated" therefor, and hence his statement was technically correct.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
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songer_r_natpr
|
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 "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.
STAR CAN OPENER CO. v. OWEN DYNETO CO.
(Circuit Court of Appeals, Second Circuit.
December 24, 1926.)
No. 211.
Patents <g=»328 — 1,360,256 and 1,528,178, both for can opener, held valid and infringed.
Anderson patents, No. 1,360,256, granted November 30, 1920, and No. 1,528,178, both for a can opener, involving means for bolding can and applying cutting edge of circular disc to side of can just below flange, held valid and infringed.
Appeal from the District Court of the United States for the Northern District of New York.
Patent infringement suit by the Star Can Opener Company against the Owen Dyneto Company. Decree for plaintiff, and defendant appeals.
Affirmed.
Suit is upon two patents, both covering inventions of one Anderson, and both owned by plaintiff. The earlier patent is for a can opener and granted November 30, 1920 (No. 1,360,256). The later-patent is also for a can opener and was applied for June 8,1921, and granted March 3,1925 (No. 1,528,178).
The court below found all the claims in suit valid and infringed; defendant appealed.-
Ramsay Hoguet and Thomas J. Byrne, both of New York City, for appellant.
Stephen J. Cox, of New York City, for appellee.
Before HOUGH, HAND, and MACK, Circuit Judges.
HOUGH, Circuit Judge.
This can opener is a means of getting at the contents of the usual tin can, commonly containing articles of food, and commonly eylindrically formed of a sheet of tinned metal soldered at the- line of juncture and terminating at top and bottom in a “flange,” viz. the meeting of the bottom or top and the cylindrical wall of the can. The opener is a manually operated tool, which grasps the flange of the can and provides means, while the can is thus firmly held, to apply the cutting edge of a circular disc, also manually actuated just below the flange and sever the side completely, so that at the end of the cut around the can the cover or top part, still firmly held by the flange, is lifted clear.
Plaintiff’s commercial embodiment of these patents has, without the meretricious aid of advertising, achieved in an extremely short time marked commercial success. It is a true tool — i. e., manually operable without the expenditure of much physical strength— strong, light, cheap, and apparently durable. That upon the ordinary food tin, composed of light sheet metal, it makes a cleaner job, with far less risk of personal injury to the operator, than does any other can-opening tool brought to our attention, is we think admitted.
The earlier patent states that the object of invention is to provide for “opening cans by cutting the ends from the body portions by a circumferential cut through the can wall.” This is to be done by providing the opener with “an advancing and a cutting roller, which are adapted to be clamped in opposed relation against opposite sides of the flange or seam of a can, in such manner that the cutting disc or roller will sever the can. wall and the can will be revolved against the cutter by revolving the advancing roller.”
The disclosure shows a set of levers arranged pincer- or scissor-wise, one lever terminating in a knurled disc manually revoluble, the other terminating in a roller which is the cutting disc. When the scissor handles are open, the can flange is grasped between the knurled and cutting discs or rollers, the knurled one being on top of the can, and when that is revolved its roughened edge advances the flange between the two rollers — - the cutting one severing the can wall as it progresses.
It is apparent, says the disclosure, that “such a can opener is simple in construction and in operation, and can be applied to cans of different sizes without adjustment, and will sever the wall in a clean-cut edge.” Of the claims in suit (1 and 2) the second is more specific, and is as follows:
“A can opener of the character described comprising a pair of pivotally connected handles, an advancing roller revolubly mounted at the end of one of said handles, a cutting disc revolubly mounted at the end of the opposite handle in opposed relation to the roller; said roller and disc being adapted to be clamped by the handles against opposite sides of an edge can flange to press the cutter through the can wall, a peripheral shoulder on the cutting disc for limiting the depth of the cut made thereby and a crank for revolving the advancing roller for the purpose set forth.”
The second and later patent elaborates the concept of the first, in that, instead of grasping the can flange between the knurled or advancing and manually operated roller and the knife or cutting edge, two rollers are provided, one in each lever. The lever bearing the roller that is placed on top of the can is recessed, so as to permit (when the scissor-form levers are closed) the roller at the end of the other lever to come into such close juxtaposition with the roller placed on top of the can that the flange thereof is flrmly grasped between the two rollers, while the cutting is done by the edge of a disc integral and concentric with the lower roller, but of slightly larger circumference. Thus the can flange is grasped by and between the rollers, and upon the revolution of the knurled roller (which may be either) the can is revolved and its wall severed immediately below the flange.
The advantage of this second form is that the can flange is more securely gripped by means of the two rollers than it is by means of one roller and a knife edge, and thus danger of slipping and consequent personal inr jury is minimized — apparently entirely eliminated. Of the claims in suit (1, 6 and 7) the first is typical and is as follows:
“In a can opener, a driving roller fixed on a spindle and having a knurled periphery, a pair of handle members pivoted together, one of said members having a recess, the other member carrying a bearing adapted to seat in said recess when the members are gripped together about the pivot, a spindle and hand-operating portion carried in said bearing and adapted to rotate said driving roller, and an idler roller on the other member positioned opposite said driving roller, and a cutter disc adjacent one of said rollers and arranged to overlap the handle of the other roller when in cutting position.”
The commercial embodiment of plaintiff’s patent does not fully respond to the drawings of either patent, but it is possible to rotate the can or advance the tool by knurling either roller; i. e., the one placed on top of the can or the one placed on the side thereof. Either roller may be the driving one, and in the first patent the driving roller is the one on top, and in the second patent the one on the side. But the claim just quoted permits either roller to be the driver and either to be the idler. It is a fair description of the commercial embodiment in evidence to say that it contains and exhibits the driving arrangement of the first patent — i. e., the knurled roller on top of the can — and the cutting arrangements of the second.
Defendant’s article is, in our judgment, a copy of plaintiff’s commercial product, except that, instead of arranging the levers seissorwise, they operate like a nut cracker; i. e., there is a change from one class of lever to another. • ■
. It is not contended that infringement can be escaped by such a device; but it is urged that, since the claims of the first patent all speak of cutting disc and advancing roller “mounted at the end” of a handle or lever, that defendant’s nut eraeker arrangement prevents the rollers, etc., from being at the end of the levers, because the ends are joined together as a nut cracker usually is. We think it an answer to the contention that in both plaintiff’s and defendant’s devices the cutting discs and rollers are mechanically at the end of a lever, and, if that be true, it makes no-difference where the alleged infringer chooses to put his fulcrum; the “end” of the patent means in common language the “business end.”
Considered, then, without reference to those earlier human achievements called the prior art, it seems to us clear that this patentee, by the exercise of what may fairly be called the inventive faculty, has contributed substantially to the useful arts. The thought embodied in the claims in suit responds to substantially all the evidences ox-tests of invention of which a considerable catalogue is given in Kurtz v. Belle (C. C. A.) 280 F. 277.
But it is here urged, and has been held in a suit on some of the claims now before us (Star, etc., Co. v. Ace, etc., Co. [D. C. N. D. of Ill., Sept. 24, 1926, not for publication]), that in view of what had gone before, no more than the skill of a mechanic was shown in adapting from old devices the tool of the patent.
In this conclusion we cannot concur. It is admittedly true that the general concept of advancing a disc cutter by means of the rev-, olution of an adjacent knurled roller, when the flange of a can is by some means held between these two parts, is not per se new. There have been patents granted for “bench” machines firmly fixed to a support for (inter alia) holding the can, which accomplish the feat of removing the can top by severing the can wall. Janzon (German), 186,518, 1906; •Heer et al. (British), No. 1318 of 1912, and others. We think it too plain for citation that, even admitting that the general principle of plaintiff’s operation was embodied in the cumbrous devices shown by the above patents, it required invention to produce a light, cheap, durable, pox-table, hand-operated tool, even for producing the same result. It requix-ed invention to devise a pair of pincers, that could grip the can flange securely without much physical effort, and the two rolléis, one fitting into effective juxtaposition with the other by means of the recess described in the second patent. This patentee took the step that counts.
But it is further urged that the patent to Wolfer, 1,024,543, and that to Weigel (German), 282,768 of 1914, are for manually operable devices, and, if not anticipations, are so close to the patents in suit as to reduce them from the inventive grade to that of mere cleverness in familiar mechanics. Of these patents we first note, as something positively shown by the disclosures (although it has been a matter of some argument here), that both were not devices for removing the whole top by severing the wall of a can, but of cutting out the cover to effect the result familiar in many forms of hand can openers in current use. The Wolfer patent distinctly says that its “rotary cutter smoothly cuts out the cover in a complete circle. A can so opened can be used again after suitably flanging over the upper edge, as no bends of any kind are formed in the cutting.” The Weigel patent, in the translation in evidence, declares as its result “that the knife is guided along the border of the can and that the cover of the latter is thus cut out.” A study of the diagrams attached to these patents confirms the disclosure statement.
Whether a disc cutter driven by a knurled roller in a circular path near the periphery of a can cover would ever be mechanically successful may perhaps be doubted. But there are in evidence here (and wholly without contradiction) embodiments of the devices revealed and described by the Weigel and Wolfer patents, and we are satisfied by this evidence that both patents are inoperative. In the light of this evidence we do not think it necessary to consider whether it was “merely a matter of the positioning of the cutter,” and therefore involving no invention, to change the combination of advancing roller and cutting disc calculated to “cut out” the top of a can, into a combination capable of cutting off the whole top including the flange. An inoperative patent seldom gives to the public anything beyond its own inoperativeness, and these patents are no exception to the rule.
Decree affirmed, with costs.
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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sc_issue_3
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
UNITED STATES CIVIL SERVICE COMMISSION et al. v. NATIONAL ASSOCIATION OF LETTER CARRIERS, AFL-CIO, et al.
No. 72-634.
Argued March 26, 1973 —
Decided June 25, 1973
White, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, Blackmun, Powell, and Rehnquist, JJ., joined. Douglas, J., filed a dissenting opinion, in which Brennan and Marshall, JJ., joined, ■post, p. 595.
Solicitor General Griswold argued the cause for appellants. With him on the briefs were Assistant Attorney General Wood, Andrew L. Frey, Robert E. Kopp, and Anthony L. Mondello.
Thomas C. Matthews, Jr., argued the cause for ap-pellees. With him on the brief were Stephen M. Truitt, Melvin L. Wulf, Ralph J. Temple, and Philip Elman.
Briefs of amici curiae urging affirmance were filed by Lee Johnson, Attorney General, John W. Osburn, Solicitor General, and A. J. Laue and Thomas H. Denney, Assistant Attorneys General, for the State of Oregon; and by Stephen J. Poliak, Richard T. Conway, Leo M. Pellerzi, Donald M. Murtha, Robert H. Chanin, A. L. Zwerdling, and Edward J. Hickey, Jr., for the Coalition of American Public Employees et al.
Me. Justice White
delivered the opinion of the Court.
On December 11, 1972, we noted probable jurisdiction of this appeal, 409 U. S. 1058, based on a jurisdictional statement presenting the single question whether the prohibition in § 9 (a) of the Hatch Act, now codified in 5 U. S. C. § 7324 (a)(2), against federal employees taking “an active part in political management or in political campaigns,” is unconstitutional on its face. Section 7324 (a) provides:
“An employee in an Executive agency or an individual employed by the government of the District of Columbia may not—
“(1) use his official authority or influence for the purpose of interfering with or affecting the result of an election; or
“(2) take an active part in political management or in political campaigns.
“For the purpose of this subsection, the phrase 'an active part in political management or in political campaigns’ means those acts of political management or political campaigning which were prohibited on the part of employees in the competitive service before July 19, 1940, by determinations of the Civil Service Commission under the rules prescribed by the President.”
A divided three-judge court sitting in the District of Columbia had held the section unconstitutional. 346 F. Supp. 578 (1972). We reverse the judgment of the District Court.
I
The case began when the National Association of Letter Carriers, six individual federal employees and certain local Democratic and Republican political committees filed a complaint, asserting on behalf of themselves and all federal employees that 5 U. S. C. § 7324 (a)(2) was unconstitutional on its face and seeking an injunction against its enforcement.
Each of the plaintiffs alleged that the Civil Service Commission was enforcing, or threatening to enforce, the Hatch Act's prohibition against active participation in political management or political campaigns with respect to certain defined activity in which that plaintiff desired to engage. The Union, for example, stated among other things that its members desired to campaign for candidates for public office. The Democratic and Republican Committees complained of not being able to get federal employees to run for state and local offices. Plaintiff Hummel stated that he was aware of the provision of the Hatch Act and that the activities he desired to engage in would violate that Act as, for example, his participating as a delegate in a party convention or holding office in a political club.
A three-judge court was convened, and the case was tried on both stipulated evidence and oral testimony. The District Court then ruled that § 7324 (a) (2) was unconstitutional on its face and enjoined its enforcement. The court recognized the “well-established governmental interest in restricting political activities by federal employees which [had been] asserted long before enactment of the Hatch Act,” 346 F. Supp., at 579, as well as the fact that the “appropriateness of this governmental objective was recognized by the Supreme Court of the United States when it endorsed the objectives of the Hatch Act. United Public Workers v. Mitchell, 330 U. S. 75... (1947)...” Id., at 580. The District Court ruled, however, that United Public Workers v. Mitchell, 330 U. S. 75 (1947), left open the constitutionality of the statutory definition of “political activity,” 346 F. Supp., at 580, and proceeded to hold that definition to be both vague and overbroad, and therefore unconstitutional and unenforceable against the plaintiffs in any respect. The District Court also added, id., at 585, that even if the Supreme Court in Mitchell could be said to have upheld the definitional section in its entirety, later decisions had so eroded the holding that it could no longer be considered binding on the District Court.
II
As the District Court recognized, the constitutionality of the Hatch Act’s ban on taking an active part in political management or political campaigns has been here before. This very prohibition was attacked in the Mitchell case by a labor union and various federal employees as being violative of the First, Ninth, and Tenth Amendments and as contrary to the Fifth Amendment by being vague and indefinite, arbitrarily discriminatory, and a deprivation of liberty. The Court there first determined that with respect to all but one of the plaintiffs there was no case or controversy present within the meaning of Art. Ill because the Court could only speculate as to the type of political activity the appellants there desired to engage in or as to the contents of their proposed public statements or the circumstances of their publication. As to the plaintiff Poole, however, the Court noted that “[h]e was a ward executive committeeman of a political party and was politically active on election day as a worker at the polls and a paymaster for the services of other party workers.” 330 U. S., at 94. Plainly, the Court thought, these activities fell within the prohibition of § 9 (a) of the Hatch Act against taking an active part in political management or political campaigning; and “[t]hey [were] also covered by the prior determinations of the [Civil Service] Commission,” id., at 103 (footnote omitted), as incorporated by § 15 of the Hatch Act, the Court relying on a Civil Service Commission publication, Political Activity and Political Assessments, Form 1236, Sept. 1939, for the latter conclusion. Id., at 103 n. 38. Poole’s complaint thus presented a case or controversy for decision, the question being solely whether the Hatch Act “without violating the Constitution, [could make this conduct] the basis for disciplinary action.” Id., at 94. The Court held that it could. “[T]he practice of excluding classified employees from party offices and personal political activity at the polls ha[d] been in effect for several decades,” id., at 96; and the Court, over a single dissent, in Ex parte Curtis, 106 U. S. 371 (1882), had previously upheld the longstanding prohibition forbidding federal employees “from giving or receiving money for political purposes from or to other employees of the government,” 330 U. S., at 96. “The conviction that an actively partisan governmental personnel threatens good administration has deepened since... Curtis,” id., at 97-98, Congress having recognized the “danger to the service in that political rather than official effort may earn advancement and to the public in that governmental favor may be channeled through political connections.” Id., at 98 (footnote omitted).
The Government, the Court thought, was empowered to prevent federal employees from contributing energy as well as from collecting money for partisan political ends: “Congress and the President are responsible for an efficient public service. If, in their judgment, efficiency may be best obtained by prohibiting active participation by classified employees in politics as party officers or workers, we see no constitutional objection.” Id., at 99 (footnote omitted). Another Congress might determine otherwise, but “[t]he teaching of experience... evidently led Congress to enact the Hatch Act,” id., at 99, which the Court refused to invalidate and which it viewed as leaving “untouched full participation by employees in political decisions at the ballot box and forbids only the partisan activity of federal personnel deemed offensive to efficiency.” Ibid. The Act did not interfere with a “wide range of public activities.” Id., at 100. It was “only partisan political activity that is interdicted.... [Only] active participation in political management and political campaigns [is proscribed]. Expressions, public or private, on public affairs, personalities and matters of public interest, not an objective of party action, are unrestricted by law so long as the government employee does not direct his activities toward party success.” Ibid. The Court concluded that what Mr. Poole had done was within the power of Congress and the Executive to prevent.
We unhesitatingly reaffirm the Mitchell holding that Congress had, and has, the power to prevent Mr. Poole and others like him from holding a party office, working at the polls, and acting as party paymaster for other party workers. An Act of Congress going no farther would in our view unquestionably be valid. So would it be if, in plain and understandable language, the statute forbade activities such as organizing a political party or club; actively participating in fund-raising activities for a partisan candidate or political party; becoming a partisan candidate for, or campaigning for, an elective public office; actively managing the campaign of a partisan candidate for public office; initiating or circulating a partisan nominating petition or soliciting votes for a partisan candidate for public office; or serving as a delegate, alternate or proxy to a political party convention. Our judgment is that neither the First Amendment nor any other provision of the Constitution invalidates a law barring this kind of partisan political conduct by federal employees.
A
Such decision on our part would no more than confirm the judgment of history, a judgment made by this country over the last century that it is in the best interest of the country, indeed essential, that federal service should depend upon meritorious performance rather than political service, and that the political influence of federal employees on others and on the electoral process should be limited. That this judgment eventuated is indisputable, and the major steps in reaching it may be simply and briefly set down.
Early in our history, Thomas Jefferson was disturbed by the political activities of some of those in the Executive Branch of the Government. See 10 J. Richardson, Messages and Papers of the Presidents 98 (1899). The heads of the executive departments, in response to his directive, issued an order stating in part that “[t]he right of any officer to give his vote at elections as a qualified citizen is not meant to be restrained, nor, however given, shall it have any effect to his prejudice; but it is expected that he will not attempt to influence the votes of others nor take any part in the business of electioneering, that being deemed inconsistent with the spirit of the Constitution and his duties to it.” Id., at 98-99.
There were other voices raised in the 19th century against the mixing of partisan politics and routine federal service. But until after the Civil War, the spoils system under which federal employees came and went, depending upon party service and changing administrations, rather than meritorious performance, was much the vogue and the prevalent basis for governmental employment and advancement. 1 Report of Commission on Political Activity of Government Personnel, Findings and Recommendations 7-8 (1968). That system did not survive. Congress authorized the President to prescribe regulations for the creation of a civil service of federal employees in 1871, 16 Stat. 514; but it was the Civil Service Act of 1883, c. 27, 22 Stat. 403, known as the Pendleton Act, H. Kaplan, The Law of Civil Service 9-10 (1958), that declared that “no person in the public service is for that reason under any obligations to contribute to any political fund, or to render any political service” and that “no person in said service has any right to use his official authority or influence to coerce the political action of any person or body.” 22 Stat. 404. That Act authorized the President to promulgate rules to carry the Act into effect and created the Civil Service Commission as the agency or administrator of the Act under the rules of the President.
The original Civil Service rules were promulgated on May 7, 1883, by President Arthur. Civil Service Rule I repeated the language of the Act that no one in the executive service should use his official authority or influence to coerce any other person or to interfere with an election, but went no further in restricting the political activities of federal employees. 8 J. Richardson, Messages and Papers of the Presidents 161 (1899). Problems with political activity continued to arise, Twenty-fourth Annual Report of the Civil Service Commission 7-9 (1908), and one form of remedial action was taken in 1907 when, in accordance with Executive Order 642 issued by President Theodore Roosevelt, 1 Report of Commission on Political Activity, supra, at 9, § 1 of Rule I was amended to read as follows:
“No person in the Executive civil service shall use his official authority or influence for the purpose of interfering with an election or affecting the result thereof. Persons who, by the provisions of these rules are in the competitive classified service, while retaining the right to vote as they please and to express privately their opinions on all political subjects, shall take no active part in political management or in political campaigns.” Twenty-fourth Annual Report of the Civil Service Commission, supra, at 104 (emphasis added).
It was under this rule that the Commission thereafter exercised the authority it had to investigate, adjudicate, and recommend sanctions for federal employees thought to have violated the rule. See Howard, Federal Restrictions on the Political Activity of Government Employees, 35 Am. Pol. Sci. Rev. 470, 475 (1941). In the course of these adjudications, the Commission identified and developed a body of law with respect to the conduct of federal employees that was forbidden by the prohibition against taking an active part in political management or political campaigning. Adjudications under Civil Service Rule I spelled out the scope and meaning of the rule in the mode of the common law, 86 Cong. Rec. 2341-2342; and the rules fashioned in this manner were from time to time stated and restated by the Commission for the guidance of the federal establishment. Civil Service Form 1236 of September 1939, for example, purported to publish and restate the law of “Political Activity and Political Assessments" for federal officeholders and employees.
Civil Service Rule I covered only the classified service. The experience of the intervening years, particularly that of the 1936 and 1938 political campaigns, convinced a majority in Congress that the prohibition against taking an active part in political management and political campaigns should be extended to the entire federal service. 84 Cong. Rec. 4303, 9595, 9604, and 9610. A bill introduced for this purpose, S. 1871, “to prevent pernicious political activities,” easily passed the Senate, 84 Cong. Rec. 4191-4192; but both the constitutionality and the advisability of purporting to restrict the political activities of employees were heatedly debated in the House. Id,., at 9594-9639. The bill was enacted, however. 53 Stat. 1147. This was the so-called Hatch Act, named after the Senator who was its chief proponent. In its initial provisions, §§ 1 and 2, it forbade anyone from coercing or interfering with the vote of another person and prohibited federal employees from using their official positions to influence or interfere with or affect the election or nomination of certain federal officials. Sections 3 and 4 of the Act prohibited the promise of, or threat of termination of, employment or compensation for the purpose of influencing or securing political activity, or support or opposition for any candidate.
Section 9 (a), which provided the prohibition against political activity now found in 5 U. S. C. § 7324 (a)(2), with which we are concerned in this case, essentially restated Civil Service Rule I, with an important exception. It made it
“unlawful for any person employed in the executive branch of the Federal Government, or any agency or department thereof, to use his official authority or influence for the purpose of interfering with an election or affecting the result thereof. No officer or employee in the executive branch of the Federal Government, or any agency or department thereof, shall take any active part in political management or in political campaigns. All such persons shall retain the right to vote as they may choose and to express their opinions on all political subjects.”
Excepted from the restriction were the President, Vice President, and specified officials in policy-making positions. Section 9 (b) required immediate removal for violators and forbade the use of appropriated funds thereafter to pay compensation to such persons.
Section 9 differed from Civil Service Rule I in important respects. It applied to all persons employed by the Federal Government, with limited exceptions; it made dismissal from office mandatory upon an adjudication of a violation; and, whereas Civil Service Rule I had stated that persons retained the right to express their private opinions on all political subjects, the statute omitted the word “private” and simply privileged all employees “to express their opinions on all political subjects.”
On the day prior to signing the bill, President Franklin Roosevelt sent a message to Congress stating his conviction that the bill was constitutional and recommending that Congress at its next session consider extending the Act to state and local government employees. 84 Cong. Rec. 10745-10747 and 10875. This, Congress quickly proceeded to do. The Act of July 19, 1940, c. 640, 54 Stat. 767, extended the Hatch Act to officers and employees of state and local agencies “whose principal employment is in connection with any activity which is financed in whole or in part by loans or grants made by the United States....” The Civil Service Commission was empowered under § 12 (b) to investigate and adjudicate violations of the Act by state and local employees. Also relevant for present purposes, § 9 (a) of the Hatch Act was amended so that all persons covered by the Act were free to “express their opinions on all political subjects and candidates.” (Emphasis added.) Moreover, §15 defined §9(a)’s prohibition against taking an active part in political management or in political campaigns as proscribing “the same activities on the part of such persons as the United States Civil Service Commission has heretofore determined are at the time this section takes effect prohibited on the part of employees in the classified civil service of the United States by the provisions of the civil-service rules prohibiting such employees from taking any active part in political management or in political campaigns.” Under § 18, now 5 U. S. C. § 7326, the prohibition against political activity was not to be construed to prohibit political activity in nonpartisan elections or in connection with questions not specifically identified with any national or state political party, such as “questions relating to constitutional amendments, referendums, approval of municipal ordinances, and others of a similar character....”
In 1950, § 9 (b), of the Act, requiring removal from office for violating the Act, was amended by providing that the Commission by unanimous vote could impose a lesser penalty, but in no case less than 90 days’ suspension without pay. 64 Stat. 475. The minimum sanction was reduced to 30 days’ suspension without pay in 1962. 76 Stat. 750.
In 1966, Congress determined to review the restrictions of the Hatch Act on the partisan political activities of public employees. For this purpose, the Commission on Political Activity of Government Personnel was created. 80 Stat. 868. The Commission reported in 1968, recommending some liberalization of the political-activity restrictions on federal employees, but not abandoning the fundamental decision that partisan political activities by government employees must be limited in major respects. 1 Report of Commission on Political Activity of Government Personnel, supra. Since that time, various bills have been introduced in Congress, some following the Commission’s recommendations and some proposing much more substantial revisions of the Hatch Act. In 1972, hearings were held on some proposed legislation; but no new legislation has resulted.
This account of the efforts by the Federal Government to limit partisan political activities by those covered by the Hatch Act should not obscure the equally relevant fact that all 50 States have restricted the political activities of their own employees.
B
Until now, the judgment of Congress, the Executive, and the country appears to have been that partisan political activities by federal employees must be limited if the Government is to operate effectively and fairly, elections are to play their proper part in representative government, and employees themselves are to be sufficiently free from improper influences. E. g., 84 Cong. Rec. 9598, 9603; 86 Cong. Rec. 2360, 2621, 2864, 9376. The restrictions so far imposed on federal employees are not aimed at particular parties, groups, or points of view, but apply equally to all partisan activities of the type described. They discriminate against no racial, ethnic, or religious minorities. Nor do they seek to control political opinions or beliefs, or to interfere with or influence anyone’s vote at the polls.
But, as the Court held in Pickering v. Board of Education, 391 U. S. 563, 568 (1968), the government has an interest in regulating the conduct and “the speech of its employees that differ [s] significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the [government], as an employer, in promoting the efficiency of the public services it performs through its employees.” Although Congress is free to strike a different balance than it has, if it so chooses, we think the balance it has so far struck is sustainable by the obviously important interests sought to be served by the limitations on partisan political activities now contained in the Hatch Act.
It seems fundamental in the first place that employees in the Executive Branch of the Government, or those working for any of its agencies, should administer the law in accordance with the will of Congress, rather than in accordance with their own or the will of a political party. They are expected to enforce the law and execute the programs of the Government without bias or favoritism for or against any political party or group or the members thereof. A major thesis of the Hatch Act is that to serve this great end of Government — the impartial execution of the laws — it is essential that federal employees, for example, not take formal positions in political parties, not undertake to play substantial roles in partisan political campaigns, and not run for office on partisan political tickets. Forbidding activities like these will reduce the hazards to fair and effective government. See 84 Cong. Rec. 9598; 86 Cong. Rec. 2433-2434, 2864; Hearings on S. 3374 and S. 3417 before the Senate Committee on Post Office and Civil Service, 92d Cong., 2d Sess., 171.
There is another consideration in this judgment: it is not only important that the Government and its employees in fact avoid practicing political justice, but it is also critical that they appear to the public to be avoiding it, if confidence in the system of representative Government is not to be eroded to a disastrous extent.
Another major concern of the restriction against partisan activities by federal employees was perhaps the immediate occasion for enactment of the Hatch Act in 1939. That was the conviction that the rapidly expanding Government work force should not be employed to build a powerful, invincible, and perhaps corrupt political machine. The experience of the 1936 and 1938 campaigns convinced Congress that these dangers were sufficiently real that substantial barriers should be raised against the party in power — or the party out of power, for that matter — using the thousands or hundreds of thousands of federal employees, paid for at public expense, to man its political structure and political campaigns. E. g., 84 Cong. Rec. 9595, 9598, 9604, 9610.
A related concern, and this remains as important as any other, was to further serve the goal that employment and advancement in the Government service not depend on political performance, and at the same time to make sure that Government employees would be free from pressure and from express or tacit invitation to vote in a certain way or perform political chores in order to curry favor with their superiors rather than to act out their own beliefs. See, e. g., id., at 9598, 9603; 86 Cong. Rec. 2433-2434; Hearings on S. 3374 and S. 3417, supra, at 171. It may be urged that prohibitions against coercion are sufficient protection; but for many years the joint judgment of the Executive and Congress has been that to protect the rights of federal employees with respect to their jobs and their political acts and beliefs it is not enough merely to forbid one employee to attempt to influence or coerce another. For example, at the hearings in 1972 on proposed legislation for liberalizing the prohibition against political activity, the Chairman of the Civil Service Commission stated that “the prohibitions against active participation in partisan political management and partisan political campaigns constitute the most significant safeguards against coercion... Hearings on S. 3374 and S. 3417, supra, at 52. Perhaps Congress at some time will come to a different view of the realities of political life and Government service; but that is its current view of the matter, and we are not now in any position to dispute it. Nor, in our view, does the Constitution forbid it.
Neither the right to associate nor the right to participate in political activities is absolute in any event. See, e. g., Rosario v. Rockefeller, 410 U. S. 752 (1973); Dunn v. Blumstein, 405 U. S. 330, 336 (1972); Bullock v. Carter, 405 U. S. 134, 140-141 (1972); Jenness v. Fortson, 403 U. S. 431 (1971); Williams v. Rhodes, 393 U. S. 23, 30-31 (1968). Nor are the management, financing, and conduct of political campaigns wholly free from governmental regulation. We agree with the basic holding of Mitchell that plainly identifiable acts of political management and political campaigning on the part of federal employees may constitutionally be prohibited. Until now this has been the judgment of the lower federal courts, and we do not understand the District Court in this case to have questioned the constitutionality of a law that was specifically limited to prohibiting the conduct in which Mr. Poole in the Mitchell case admittedly engaged.
Ill
But however constitutional the proscription of identifiable partisan conduct in understandable language may be, the District Court’s judgment was that § 7324 (a) (2) was both unconstitutionally vague and fatally overbroad. Appellees make the same contentions here, but we cannot agree that the section is unconstitutional on its face for either reason.
As an initial matter, we must have clearly in mind the statutory prohibitions that we are examining for impermissible vagueness and overbreadth.
Section 7324 (a)(2) provides that an employee in an executive agency must not take “an active part in political management or in political campaigns” and goes on to say that this prohibition refers to “those acts of political management or political campaigning which were prohibited on the part of employees in the competitive service before July 19, 1940, by determinations of the Civil Service Commission under the rules prescribed by the President.” Section 7324 (b) privileges an employee to vote as he chooses and to express his opinion on political subjects and candidates, and §§ 7324 (c) and (d), as well as §7326, also limit the applicability of § 7324 (a) (2). The principal issue with respect to this statutory scheme is what Congress intended when it purported to define “an active part in political management or in political campaigns,” as meaning the prior interpretations by the Civil Service Commission under Civil Service Rule I which contained the identical prohibition.
Earlier in this opinion it was noted that this definition was contained in § 15 of the 1940 Act. As recommended by the Senate Committee, S. Rep. No. 1236, 76th Cong., 3d Sess., 2, 4, § 15 conferred broad rulemaking authority on the Civil Service Commission to spell out the meaning of “an active part in political management or in political campaigns.” There were, in any event, strong objections to extending the Hatch Act to those state employees working in federally financed programs, see, e. g., 86 Cong. Rec. 2486, 2793-2794, 2801-2802, and to § 15, in particular, as being an unwise and invalid delegation of legislative power to the Commission. See, e. g., id., at 2352, 2426-2427, 2579, 2794, 2875. The matter was vigorously debated; and ultimately Senator Hatch, the principal proponent and manager of the bill, offered a substitute for § 15, id., at 2928 and 2937, limiting the reach of the prohibition to those same activities that the Commission “has heretofore determined are at the time of the passage of this act prohibited on the part of employees” in the classified service by the similar provision in Civil Service Rule I. The matter was further debated, and the amendment carried. Id., at 2958-2959.
The District Court and appellees construe § 15, now part of § 7324 (a) (2), as incorporating each of the several thousand adjudications of the Civil Service Commission under Civil Service Rule I, many of which are said to be undiscoverable, inconsistent, or incapable of yielding any meaningful rules to govern present or future conduct. In any event, the District Court held the prohibition against taking an active part in political management and political campaigns to be itself an insufficient guide to employee behavior and thought the definitional addendum of § 15 only compounded the confusion by referring the concerned employees to an impenetrable jungle of Commission proceedings, orders, and rulings. 346 F. Supp., at 582-583, 585.
We take quite a different view of the statute. As we see it, our task 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. With this in mind and having examined with some care the proceedings surrounding the passage of the 1940 Act and adoption of the substitute for § 15, we think it appears plainly enough that Congress intended to deprive the Civil Service Commission of rulemaking power in the sense of exercising a subordinate legislative role in fashioning a more expansive definition of the kind of conduct that would violate the prohibition against taking an active part in political management or political campaigns. But it is equally plain, we think, that Congress accepted the fact that the Commission had been performing its investigative and adjudicative role under Civil Service Rule I since 1907 and that the Commission had, on a case-by-case basis, fleshed out the meaning of Rule I and so developed a body of law with respect to what partisan conduct by federal employees was forbidden by the rule. 86 Cong. Rec. 2342, 2353. It is also apparent, in our view, that the rules that had evolved over the years from repeated adjudications were subject to sufficiently clear and summary statement for the guidance of the classified service. Many times during the debate on the floor of the Senate, Senator Hatch and others referred to a summary list of such prohibitions, see, e. g., id., at 2929, 2937-2938, 2942-2943, 2949, 2952-2953, the Senator’s ultimate reference being to Civil Service Form No. 1236 of September 1939, the pertinent portion of which he placed in the Record, id., at 2938-2940, and which was the Commission’s then-current effort to restate the prevailing prohibitions of Civil Service Rule I, as spelled out in its adjudications to that date. It was this administrative restatement of Civil Service Rule I law, modified to the extent necessary to reflect the provisions of the 1939 and 1940 Acts themselves, that, in our view, Congress intended to serve as •its definition of the general proscription against partisan activities. It was within the limits of these rules that the Civil Service Commission was to proceed to perform its role under the statute.
Not only did Congress expect the Commission to continue its accustomed role with respect to federal employees, but also in § 12 (b) of the 1940 Act Congress expressly assigned the Commission the enforcement task with respect to state employees now covered by the Act. The Commission was to issue notice, hold hearings, adjudicate, and enforce. This process, inevitably and predictably, would entail further development of the law within the bounds of, and necessarily no more severe than, the 1940 rules and would be productive of a more refined definition of what conduct would or would not violate the statutory prohibition of taking an active part in political management and political campaigns.
It is thus not surprising that there were later editions of Form 1236, or that in 1970 the Commission again purported to restate the law of forbidden political activity and, informed by years of intervening adjudications, again sought to define those acts which are forbidden and those which are permitted by the Hatch Act. These regulations, 5 CFR pt. 733, are wholly legitimate descendants of the 1940 restatement adopted by Congress and were arrived at by a process that Congress necessarily anticipated would occur down through the years. We accept them as the current and, in most respects, the longstanding interpretations of the statute by the agency charged with its interpretation and enforcement. It is to these regulations purporting to construe § 7324 as actually applied in practice, as well as to the statute itself, with its various exclusions, that we address ourselves in rejecting the claim that the Act is unconstitutionally vague and overbroad. Law Students Research Council v. Wadmond, 401 U. S. 154, 162-163 (1971); cf. Gooding v. Wilson, 405 U. S. 518, 520-521 (1972).
Whatever might be the difficulty with a provision against taking “active part in political management or in political campaigns,” the Act specifically provides that the employee retains the right to vote as he chooses and to express his opinion on political subjects and candidates. The Act exempts research and educational activities supported by the District of Columbia or by religious, philanthropic, or cultural organizations, 5 U. S. C. § 7324 (c); and § 7326 exempts nonpartisan political activity: questions, that is, that are not identified with national or state political parties are not covered by the Act, including issues with respect to constitutional amendments, referendums, approval of municipal ordinances, and the like. Moreover, the plain import of the 1940 amendment to the Hatch Act is that the proscription against taking an active part in the proscribed activities is not open-ended but is limited to those rules and proscriptions that had been developed under Civil Service Rule I up to the date of the passage of the 1940 Act. Those rules, as refined by further adjudications within the outer limits of the 1940 rules, were restated by the Commission in 1970 in the form of regulations specifying the conduct that would be prohibited or permitted by § 7324 and its companion sections.
We have set out these regulations in the margin. We see nothing impermissibly vague in 5 CFE § 733.122, which specifies in separate paragraphs the various activities deemed to be prohibited by § 7324 (a) (2). There might be quibbles about the meaning of taking an “active part in managing” or about “actively participating in... fund-raising” or about the meaning of becoming a “partisan” candidate for office; but there are limitations in the English
Question: What is the issue of the decision?
A. First Amendment, miscellaneous (cf. comity: First Amendment)
B. commercial speech, excluding attorneys
C. libel, defamation: defamation of public officials and public and private persons
D. libel, privacy: true and false light invasions of privacy
E. legislative investigations: concerning internal security only
F. federal or state internal security legislation: Smith, Internal Security, and related federal statutes
G. loyalty oath or non-Communist affidavit (other than bar applicants, government employees, political party, or teacher)
H. loyalty oath: bar applicants (cf. admission to bar, state or federal or U.S. Supreme Court)
I. loyalty oath: government employees
J. loyalty oath: political party
K. loyalty oath: teachers
L. security risks: denial of benefits or dismissal of employees for reasons other than failure to meet loyalty oath requirements
M. conscientious objectors (cf. military draftee or military active duty) to military service
N. campaign spending (cf. governmental corruption):
O. protest demonstrations (other than as pertains to sit-in demonstrations): demonstrations and other forms of protest based on First Amendment guarantees
P. free exercise of religion
Q. establishment of religion (other than as pertains to parochiaid:)
R. parochiaid: government aid to religious schools, or religious requirements in public schools
S. obscenity, state (cf. comity: privacy): including the regulation of sexually explicit material under the 21st Amendment
T. obscenity, federal
Answer:
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songer_treat
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C
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
UNITED STATES of America, Plaintiff-Appellee, v. George PHILLIPS, Defendant-Appellant.
No. 78-5114.
United States Court of Appeals, Fifth Circuit.
Aug. 9, 1979.
Lester Makofka, Jacksonville, Fla. (Court-appointed), for defendant-appellant.
Gary L. Betz, U. S. Atty., Loretta Anderson, Asst. U. S. Atty., Jacksonville, Fla., for plaintiff-appellee.
Before GEWIN, COLEMAN and GOLDBERG, Circuit Judges.
GOLDBERG, Circuit Judge.
George Phillips drives a cement truck for a living. In July, 1972, he was hospitalized because of a condition called atriofibrillation — a rapid, irregular heart beat — accompanied by heart failure and lung congestion. These afflictions forced him to stop working for some months. In October of that year he applied for social security disability benefits. In March, 1973, the Social Security Administration (SSA) awarded him disability benefits, retroactive to January, 1973. In the meantime, Phillips had begun working again, although not at the pace he maintained before his illness; indeed during several weeks he did not work at all. But until March, 1974, about eighteen months after he resumed work, he did not tell the SSA that he was again working. In October, 1974, his benefits were terminated. Three years later he was charged with a misdemeanor for having failed to notify the SSA about his employment between November, 1972 and March, 1974. He was convicted by a jury and he now appeals. We reverse.
Phillips was convicted under 42 U.S.C. § 408(d), which provides:
Whoever . having knowledge of the occurrence of any event affecting (1) his initial or continued right to any payment under this subchapter . . •. conceals or fails to disclose such event with an intent fraudulently to secure payment either in a greater amount than is due or when no payment is authorized . shall be guilty of a misdemean- or .
Phillips does not deny that his employment was substantial and prolonged enough to affect his right to disability payments. Of course he does not deny that he knew he was employed; and he admits that he first told the Social Security Administration about his employment in March of 1974, even though he had been working, on and off, since November 1972. The only remaining question under § 408(d) is whether Phillips had “an intent fraudulently to secure payment.” We hold that the government did not adduce enough evidence that Phillips had such a fraudulent intent.
“Fraudulent intent” under § 408(d) has never been authoritatively defined. Indeed § 408(d) is apparently the basis for few prosecutions and seems seldom to have been interpreted. In this case, however, the trial judge, the prosecution, and the defense all seem to agree on what constitutes fraudulent intent, and we believe their interpretation of the statute is correct. First, the government must show that the defendant knew that he was legally obligated to disclose certain information. Second, the government must prove that the defendant knew that by withholding the information he would receive greater payments than he was entitled to. In other words, a defendant is not guilty under § 408(d) unless he is aware both that he is deceiving the government and that the government will pay out more money because of his deception. Cf. Restatement of Torts, § 525 (1939) (to be guilty of deceit, defendant must have intended that plaintiff rely on defendant’s misrepresentation).
The second element is apparent on the face of the statute; Congress required an intent “to secure payment . . . in a greater amount than is due,” and a defendant cannot intend a consequence — here, receiving a greater amount than is due — unless he knows, or can reasonably be charged with knowing, that his action would have that consequence. The first element is almost equally apparent. Congress required a certain “intent,” choosing not to punish careless failures to disclose; the nondisclosure must be deliberate. Congress also required an “intent fraudulently to secure payment . . . in a greater amount than is due” (emphasis added). Congress must, therefore, have wanted to exempt recipients who deliberately failed to disclose certain information because they intended to increase their payments, but whose intention was nonetheless innocent. A recipient who thought he was entitled not to disclose would fall in this category. Finally, whatever else it involves, fraud is a matter of deliberate deception. But if a defendant does not know that the government expects him to reveal certain information, then he does not know that the government will be misled by not receiving it; so if he has deceived the government, he has not done so deliberately, and he cannot be said to have acted with a fraudulent intent.
Phillips’s application for disability benefits specified that he was to notify the Social Security Administration if he became able to work or returned to work. Phillips, who has only a sixth-grade education, signed the application, but he testified that he did not read it; it was filled out by a Social Security representative to whom he supplied the necessary information. That representative testified that she could not remember Phillips specifically but that as a general practice she asked applicants, among other questions, whether they agreed to notify the SSA if they returned to. work. Phillips testified that he did not remember that question.
On the basis of his October, 1972, application and some medical reports, Phillips was awarded disability benefits in March, 1973, retroactive to January, 1973. In January, 1974, the SSA sent Phillips a letter and a questionnaire, asking for the names of doctors he had consulted and asking if he had done any work. This was part of a routine reconsideration the SSA undertook because it thought Phillips had the kind of condition that was likely to improve. On February 7 the SSA, having received no reply, sent another letter. When it still did not receive a reply, the SSA sent a representative, Michael J. Wolpert, to call on Phillips at his home. Agent Wolpert testified that Phillips told him he was working eight hours a day, two to five days a week, and that he did not remember exactly when he had begun working. Wolpert also reported that Phillips was earning more than $200 a month. Wolpert told Phillips that his payments would probably be terminated, but testified that had he been asked, which he was not, he would have advised Phillips to cash the checks he was receiving and not to return them, “because as far as I knew he was not found . . rehabilitated, that or found un-disabled. As far as I knew at that point he was still disabled.” Agent Wolpert was quite emphatic on this point. See R.Vol. 4 at 65-66.
As a result of Wolpert’s interview report, the SSA inquired of Phillips’s employer and learned that Phillips had been working irregularly since October, 1972. In October of 1974, the SSA decided that its original decision to award Phillips disability benefits was mistaken and it terminated his benefits.
For the next two years the SSA seems to have had no contact with Phillips. Then in October, 1976, another SSA representative, Ms. Eloise Mobley, interviewed Phillips at his home. Agent Mobley’s testimony was the heart of the government’s effort to show that Phillips acted fraudulently. Mobley’s testimony is questionable for several reasons, but these need not detain us. She testified:
He stated that he had been told at the initial interview that if he should return to work or if his condition improved, that he was supposed to report this to the Administration. He felt the reason why he did not report his return to work was because he felt that the check he was going to receive on disability, that he was receiving, was rightfully his, regardless of whether he worked or not.
Q Did Mr. Phillips indicate during the course of his interview that he understood the meaning of disability?
A Yes, he did.
Q Did he give a reason as to why he did not report the work activity to the Social Security Administration?
A Well, his reason was that, you know, he had worked and paid into the Social Security fund and disability had already been established for him so, you know, whether he worked or not, these checks were rightfully his.
Q Did you ask Mr. Phillips if he intended to refund the overpayment?
A Yes, I did ask him.
Q And what, how did he respond?
A Without hesitation he said no.
Q Did you ask Mr. Phillips if he reported that he had worked to the Social Security Administration?
A Yes, I did.
Q And what did he answer?
A He said no.
R.Vol. 4 at 96-97.
This evidence, taken together, can support a jury’s conclusion that Phillips knew he had an obligation to report his resumed employment. The jury might have decided to discount Phillips’s testimony on this point in the face of the application, the testimony of the agent who filled it out, and Agent Mobley’s directly contradictory recollection.
But the evidence of the other element of fraudulent intent — that Phillips knew he was not entitled to the payments he was receiving — is far too threadbare. The government stresses Agent Mobley’s testimony that Phillips “indicated” that he “understood the meaning of disability,” but this alone cannot suffice. In the first place, this testimony may be inadmissible; arguably, it “amount[ed] to little more than choosing up sides” on an ultimate issue of fact, Fed.R.Evid. 701, Advisory Comm. Note, precisely what the Federal Evidence Rules’ limitations on lay opinion are designed to exclude. Whether or not it was inadmissible, however, Agent Mobley’s observation, by itself, is insufficient to support a finding that Phillips acted with fraudulent intent. Agent Mobley did not reveal what Phillips had said, or done, to convince her that he understood “the meaning of disability.” She did not quote, paraphrase, or even objectively summarize any statements that might have helped the jury decide whether Phillips knew that he was not entitled to the payments. Consequently, her testimony gave the jury no basis for making any independent judgment about Phillips’s state of mind. With only Agent Mobley’s unsupported lay opinion before it, a reasonable jury would be left with some reasonable doubt, see United States v. Buckley, 586 F.2d 498, 504 (5th Cir. 1978), quoting United States v. Stephenson, 474 F.2d 1353, 1355 (5th Cir. 1973), that Phillips knew he was defrauding the government.
Oddly, the government also makes much of Agent Mobley’s testimony that Phillips “stated that, you know, that they [the checks] were rightfully his since he had paid into the fund, you know, over such a long period of time.” R.Vol. 4 at 108. See also R.Vol. 4 at 96. On its face, Phillips’s assertion that he was entitled to the benefits is exculpatory; it tends to show that he did not think he was doing wrong. Indeed, the government’s position is almost perverse; simply by saying that the checks were rightfully his, Phillips — claims the government — revealed that he thought the checks were not rightfully his. Of course, Phillips’s statement may be evidence that he believed himself morally entitled to the benefits no matter what the law provided; that in turn may be evidence that Phillips ignored legal requirements in an effort to keep receiving the benefits. But this inference is attenuated, and scarcely unavoidable. Phillips may instead have been saying that since he had once worked, he did not consider his payments a handout and therefore had no qualms about accepting the money, which he thought the government willingly disbursed. He may have been suggesting that since he had no moral doubts about accepting the money, he was not alerted to the possible legal problems. Cf. Screws v. United States, 325 U.S. 91, 104-05, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945) (plurality opinion) (defendant who intentionally deprives a person of clear constitutional right cannot claim lack of fair notice that his act was criminal (prosecution under 18 U.S.C. § 242)). Since the jury did not itself see and hear Phillips make the statement, and since Agent Mobley did not specify the context and the circumstances in which it was made, the jury would have had no basis whatever for placing the most in-culpatory construction on Phillips’s remark.
Of course, the government does not have to prove Phillips’s intent from Phillips’s statements alone. Two other avenues are open in a case like this. The government might argue that a jury can conclude, from its common sense knowledge, that every disability recipient who applies for benefits on his own initiative understands enough to know that if he returns to work his benefits will be reduced or terminated. If Phillips had returned to his previous job at the same wages and hours, this argument would be more persuasive. But after his illness Phillips worked irregularly. In some weeks he did earn almost as much as he had before he became ill, but this occurred infrequently. Phillips’s supervisor at work testified that Phillips’s illness impaired his ability to work and forced him to work fewer hours. In some weeks Phillips was wholly unable to work. His doctors treated him frequently and at one point he had to be hospitalized again. He said he feared that at any time he might again become unable to work for long periods. Some might argue that in a more compassionate society, Phillips’s condition would entitle him to disability benefits, and that Phillips’s believing that ours is such a society does not make him a criminal. Whatever the merits of that view, the basic issue is the extent to which we can expect citizens to understand the internal logic of complex government programs. To some degree, of course, we must act on the assumption that they do understand and hold them responsible if they do not. But here we deal with a criminal prosecution; with a defendant who has a sixth-grade education; and with a case of disability that was at least somewhat ambiguous.
In any event, Agent Wolpert’s testimony vanquishes any suggestion that Phillips was so healthy that he must have known he was ineligible for payments. Wolpert testified that even after being told how much work Phillips was doing he would still have advised Phillips to continue cashing the checks he received and not to return them. From this we must infer that Wolpert, a trained SSA employee, did not think that Phillips was clearly ineligible for disability benefits; and from that we must conclude that a reasonable jury would have had some reasonable doubt that Phillips knew he was not entitled to the benefits. See United States v. Critzer, 498 F.2d 1160, 1162 (4th Cir. 1974).
Finally, the government might have been able to establish Phillips’s fraudulent intent if his behavior had been so devious, and so uncharacteristic of an innocent person, that the jury could infer that Phillips must have known he was doing wrong. See, e. g., United States v. Callahan, 588 F.2d 1078, 1080-81, 1083 (5th Cir. 1979) (alleged tax evader kept elaborate fictitious records); United States v. Schafer, 580 F.2d 774, 782 (5th Cir.), cert. denied, 439 U.S. 970, 99 S.Ct. 463, 58 L.Ed.2d 430 (1978) (alleged tax evader avoided keeping records, and concealed information from, and made false statements to, government agents). But Phillips devised no elaborate schemes; he had no such craft. Agent Wolpert noted on his report that in their interview Phillips was very forthcoming, and in fact Phillips provided Wolpert with accurate information about his work. Agent Mobley also found Phillips cooperative, and she too was given truthful answers. The government has not suggested that Philips ever made a false statement to the SSA, either verbally or in writing. He never attempted to mislead the SSA about who his employer was or how much he was working. Indeed on forms he filled out at the hospital where he was treated, Phillips disclosed the details about his employment. Phillips’s actions betray no sign of an effort to cheat the government. Essentially, then, the government’s case that Phillips knew he was doing wrong rests on his failure to answer the letters sent to him. For many purposes, of course, the government is entitled to assume that citizens will read mail sent to them and be aware of its contents. But in a criminal prosecution where the government must show fraudulent intent, those of us who are comfortable with the forms and documents and often unlovely prose of the bureaucracy must not rush to assume that everyone is equally at ease with them. When Phillips dealt in the medium to which he was plainly more accustomed — verbal, face-to-face communications with the government agents — he was indisputably honest. Possibly, he ignored the SSA’s letters because he felt slightly overwhelmed by written papers, or because he simply did not understand quite what to do with them. The government, which of course had the burden of proof, did not show otherwise; certainly it did not show that his ignoring the letters was part of a crude effort to defraud.
Indeed Phillips may have been guilty of nothing worse than insisting that the government know its place. His best precedent may be the case of Miss Emily Grier-son, the elderly, unhappy heroine of an early Faulkner story. Miss Emily was forgiven her taxes by an erstwhile mayor of the town of Jefferson named Colonel Sartoris. “Not that Miss Emily would have accepted charity. Colonel Sartoris invented an involved tale to the effect that Miss Emily’s father had loaned money to the town which the town, as a matter of business, preferred this way of repaying.”
When the next generation, with its more modern ideas, became mayors and aider-men, this arrangement created some little dissatisfaction. On the first of the year they mailed her a tax notice. February came, and there was no reply. They wrote her a formal letter, asking her to call at the sheriff’s office at her convenience. A week later the mayor wrote her himself, offering to call or to send his car for her, and received in reply a note on paper of an archaic shape, in a thin, flowing calligraphy in faded ink, to the effect that she no longer went out at all. The tax notice was also enclosed, without comment.
They called a special meeting of the Board of Aldermen. A deputation waited upon her, knocked at the door through which no visitor had passed since she ceased giving china-painting lessons eight or ten years earlier. . .
She did not ask them to sit. She just stood in the door and listened quietly until the spokesman came to a stumbling halt. Then they could hear the invisible watch ticking at the end of the gold chain.
Her voice was dry and cold. “I have no taxes in Jefferson. Colonel Sartoris explained it to me. Perhaps one of you can gain access to the city records and satisfy yourselves.”
“But we have. We are the city authorities, Miss Emily. Didn’t you get a notice from the sheriff, signed by him?”
“I received a paper, yes,” Miss Emily said. “Perhaps he considers himself the sheriff ... I have no taxes in Jefferson.”
“But there is nothing on the books to show that, you see. We must go by the — ”
“See Colonel Sartoris. I have no taxes in Jefferson.”
“But, Miss Emily — ”
“See Colonel Sartoris.” (Colonel Sar-toris had been dead almost ten years.) “I have no taxes in Jefferson. Tobe!” The [butler] appeared. “Show these gentlemen out.”
By comparison Mr. Phillips treated the SSA quite well. Whatever his civil liabilities, he is not a criminal and he should not have been convicted of a crime.
REVERSED.
. Literally, or literalistically, a statute requiring “an intent ... to secure payment . in a greater amount than is due” might be satisfied by an intent to secure any payment which is in fact greater than the amount due. That is, it might require only proof that the defendant knew he would receive payments, not proof that he knew the payments were greater than the amount due. This interpretation would differ from that proposed in the text in only one respect. It would reach a defendant who knew he had a duty to disclose certain information, and knew that by not disclosing he could increase his payments, but thought— honestly although mistakenly — that he was entitled to the greater payments. Whether Congress intended to cover this unlikely case is an issue we need not decide here.
. See also United States v. Bishop, 412 U.S. 346, 93 S.Ct. 2008, 36 L.Ed.2d 941 (1973), which held that the requirement of a “willful” act or omission, generally found in 26 U.S.C. §§ 7201-7207, the principal statutes dealing with federal income taxpayers’ criminal liability, can be satisfied only by showing “a voluntary, intentional violation of a known legal duty.” Id. at 360, 93 S.Ct. at 2017.
. There was testimony that state agencies also sent Phillips two letters.
. Agent Mobley recounted her conversation with Phillips at a suppression hearing before a magistrate and again at a hearing before the district judge. There were several significant inconsistencies in her accounts. Compare R.Vol. 2 at 36-38 (Phillips refused to sign waiver of rights before being questioned) with R.Vol. 3 at 18-20, 23, 30, 32, 34 (after being questioned); R.Vol. 2 at 28, 29, 32 (Phillips was advised that interview was part of a criminal investigation) with R.Vol. 3 at 25 and R.Vol. 4 at 103 (Phillips was not so advised); R.Vol. 3 at 31 (Phillips asked Mobley about his refunding overpayments) with R.Vol. 4 at 97, 106 (Mobley asked Phillips if he would refund overpay-ments). Nevertheless we do not disturb the district judge’s ruling that Phillips’s statements to Mobley were admissible.
More or less as Phillips spoke to her, Mobley recorded his statements on a form which she expected him to sign. When he refused to sign it, she summarized the statements on another form and destroyed the original form without transcribing it verbatim. See R.Vol. 4 at 120-21.
. Apparently for this reason, the trial judge held inadmissible portions of Agent Mobley’s written report which contained comparably conclusory observations.
. See footnote 4 supra.
. For the same reason, Agent Mobley’s statement, on cross-examination:
“All right, he, according — from what I can remember ... of my conversation with Mr. Phillips, he was aware that he was not entitled to checks, all right?”
R.Vol. 4 at 107, was not enough to sustain the case against Phillips.
. W. Faulkner, “A Rose for Emily,” Collected Stories (1950) 120-21.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
songer_appnatpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
CAROLINA POWER & LIGHT COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent.
No. 13201.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 8, 1969.
Decided Jan. 7, 1970.
Charles F. Rouse, Raleigh, N. C., for petitioner.
William H. Arkin, Atty., Federal Power Commission (Richard A. Solomon, Gen. Counsel, Peter H. Schiff, Sol., and Drexel D. Journey, Asst. Gen. Counsel, on the brief) for respondent.
Before SOBELOFF, BOREMAN and BRYAN, Circuit Judges.
ALBERT Y. BRYAN, Circuit Judge:
Under the Federal Power Act, section 301, 16 U.S.C. § 825, every public utility is required to “keep * * * such accounts, records of cost-accounting procedures * * * as the Commission may by rules and regulations prescribe * * Carolina Power & Light Company is admittedly a generator, distributor and seller of electric energy in North and South Carolina subject to the Commission’s jurisdiction. § 201, 16 U.S.C. § 824. It now petitions under § 313(b), 16 U.S.C. § 8251(b), for review and reversal of a Commission order which directed the company to apportion between operating and non-operating accounts the annual payments it makes for the use of the distribution system of Elm City, North Carolina. Denying the company’s attempt to charge the whole of each payment as an operating cost, we affirm the order.
There is no contention on the facts. By an agreement dated December 28, 1967, the company took over for twenty years the City’s wires, poles and appurtenances, binding itself to pay for their use an average of $18,000 annually —an aggregate of $360,000. At the same time the company covenanted to maintain the distribution system throughout the period.
In addition, the agreement gave the company discretion to retire and replace any part of the system. These substitutions, with any other improvements and extensions, become the company’s property. Parenthetically, it may be noted that no more than ten or fifteen per cent of the City’s distribution system will remain in place at the end of the contract period.
A further stipulation between the City and the company was that upon expiration of the initial twenty years, a new contract would be made or the City could purchase the company property. Failing exercise of either option, the company was obligated to purchase the City’s remaining electric distribution property and to continue to furnish electricity to the public for an additional sixty years.
In January 1968, the agreement received thé requisite approval of the Commission, § 203, 16 U.S.C. § 824b. However, it reserved for future settlement the present accounting problem.
As it did before the Commission, the company contends that the written instrument is a genuine lease. As such the utility argues that each payment is indivisibly and exclusively chargeable as an operating expense, under the Commission’s Uniform System of Accounts, to Account 589, Rents, 18 CFR pt. 101 at p. 254. This particular item is explained more fully in the System of Accounts under Operating Expense Instruction 3, 18 CFR pt. 101 at p. 192, which provides:
“3. Rents
A. The rent expense accounts provided under the several functional groups of expense accounts shall include all rents * * * for property used in utility operations, * * *”
However, in the circumstances, the Commission did not think this instruction apposite. It did not pass upon the company’s contention that the contract was a lease and not a purchase. For accounting purposes the Commission looked to the effect of the agreement, and said that no matter its legal character, the transaction should be recorded as an acquisition pursuant to Electric Plant Instruction 5 of the Uniform System of Accounts. 18 CFR pt. 101 at p. 184. This provision details the accounting treatment to be given when “an operating unit or system is acquired by purchase, merger, consolidation, liquidation, or otherwise, * * *” [Accent added.]
In this instruction the Commission follows its fundamental tenet that consumers should pay only once for property devoted to the public use. As the most effective means of accomplishing this aim,» the Commission primarily uses the “original cost” theory of evaluating utility property for rate-making purposes. Operating expenses aside, under the principles of “original cost”, the utility rates assure the owner of a fair return on the investment and of a sum sufficient to meet the current depreciation on the existing plant and any additions.
If a return and depreciation were allowed on sums beyond the original cost of the plant and additions, then a new owner in paying an inflated cost for the property would defeat the “original cost” pattern. The consumer through his rates would, of course, pay for the original cost of the property, but, in effect, he would also be forced to pay for the change of ownership. Not embodied in the plant or physical improvements to it, this sum, representing the excess of acquisition cost over original cost, brings the consumer no proven benefit.
Presently, the accounting plan of the company could allow this character of excessive recovery under the guise of rent paid. While, in the company’s treatment, the depreciated original cost of the property would be preserved, operating expenses would be swelled $18,000 annually. This added expense, if passed on to the consumers in full, could embrace both the legitimate costs incurred in running the system and the charges for which the consumers receive no benefits. The effect would be to increase the consumers' rates without an adequate corresponding advantage to them.
Forebodings of the dangers we have alluded to appear in the Commission’s dissection of the agreement, as reported by its Examiner as follows:
The original historical cost of the City's facilities was estimated at $134,801.00
The accrued depreciation was estimated at 69,854.00
Leaving a depreciated original cost of $64,947.00
Whereas, the present value of the twenty years of payments at $18,000 annually, aggregating $360,000, discounted at bVz%, amounted to $212,219.00
The payments under the agreement, notably, are far in excess of the depreciated original cost.
To avoid these risks, the Commission set up the accounting system of which the company complains. It began with the depreciated original cost of the distribution system stated by the Examiner. It then determined (a) the taxes payable, (b) an allowance for annual depreciation calculable on the depreciated original cost, and (c) a fair return on the investment. The total of these items was the only part of the yearly payment of $18,000 permitted to be charged to operating expenses. After these charges there remained an average of $10,693 of each annual payment and this remainder was carried into a non-operating expense account, thereby dispelling the threat of a large overcharge to the consumers.
The formula employed is not impermissible under the Act. Section 301, 16 U.S.C. § 825 declares: “The Commission * * * may determine by order the accounts in which particular outlays and receipts shall be entered, charged, or credited.” See California Oregon Power Co. v. Federal Power Commission, 150 F.2d 25, 27 (9 Cir. 1945); cert. denied 326 U.S. 781, 66 S.Ct. 336, 90 L.Ed. 473 (1946); Northwestern Electric Co. v. Federal Power Commission, 125 F.2d 882, 886 (9 Cir. 1942), 134 F.2d 740, 744 (9 Cir. 1943), aff’d 321 U.S. 119, 64 S.Ct. 451, 88 L.Ed. 596 (1944).
The company availed itself of its opportunity under the Act to be heard upon its objection to the accounting prescribed by the Commission. However, this statute provides further, “[t]he burden of proof to justify every accounting entry questioned by the Commission shall be on the person making, authorizing, or requiring such entry, * * *” § 301, 16 U.S.C. § 825. The company offered no justification acceptable to the Commission. The decision of the Commission must stand.
Affirmed.
. Federal Power Commission’s Opinion No. 548, Docket No. E-7394 (October 29, 1968), 40 FPC 1122.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
sc_lcdisposition
|
J
|
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.
NATIONAL LABOR RELATIONS BOARD v. SEVEN-UP BOTTLING COMPANY OF MIAMI, INC.
No. 217.
Argued December 19, 1952.
Decided January 12, 1953.
Mozart G. Ratner argued the cause for petitioner. With him on the brief were Acting Solicitor General Stern, George J. Bott and David P. Findling.
Frank A. Constangy argued the cause for respondent. With him on the brief were Marion A. Prowell and Albert B. Bernstein.
Mr. Justice Frankfurter
delivered the opinion of the Court.
Acting under § 10 (c) of the Labor Management Relations Act, 1947 (the Taft-Hartley Act), 61 Stat. 136, 147, 29 U. S. C. (Supp. IV) § 160 (c), the National Labor Relations Board ordered the reinstatement of eleven dis-criminatorily discharged employees of the Seven-Up Bottling Company, with back pay “to be computed upon a quarterly basis in the manner established by the Board in F. W. Woolworth Company.” 92 N. L. R. B. 1622, 1640. In the Woolworth case, 90 N. L. R. B. 289, the Board said:
“The public interest in discouraging obstacles to industrial peace requires that we seek to bring about, in unfair labor practice cases, ‘a restoration of the situation, as nearly as possible, to that which would have obtained but for the illegal discrimination.’ In order that this end may be effectively accomplished through the medium of reinstatement coupled with back pay, we shall order, in the case before us and in future cases, that the loss of pay be computed on the basis of each separate calendar quarter or portion thereof during the period from the Respondent’s discriminatory action to the date of a proper offer of reinstatement. The quarterly periods, hereinafter called 'quarters,’ shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which [the employee] would normally have earned for each such quarter or portion thereof, [his] net earnings, if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter.” 90 N. L. R. B., at 292-293.
In the proceeding in which the Board sought enforcement of the order against the Seven-Up Bottling Company, the Court of Appeals sustained the claim of the Company that the Woolworth formula could not be applied against it: “The employee is entitled to be made whole, but no more. The employees here involved were not compensated on a quarterly basis. We see no sufficient reason to so compute their back pay during suspension. . . . There is nothing to indicate that the conditions apprehended by the Board in the Woolworth case, exist here.” 196 F. 2d 424, 427-428. Accordingly, the court modified the Board’s order so that back pay would be awarded on the basis of the entire period during which an employee was denied reemployment in violation of the Act rather than on a quarterly basis. Since the general method of computing back pay is obviously a matter of importance in the administration of the Act, we brought the case here. 344 U. S. 811.
Section 10 (c) of the Taft-Hartley Act, under which the Board made its award, derives unchanged, so far as is now relevant, from the National Labor Relations (Wagner) Act. 49 Stat. 449, 454. It charges the Board with the task of devising remedies to effectuate the policies of the Act. Of course the remedies must be functions of the purposes to be accomplished, and in making back pay awards, the Board operates under a further limitation. It must have regard for considerations governing the mitigation of damages; it must, that is, heed “the importance of taking fair account, in a civilized legal system, of every socially desirable factor in the final judgment.” Phelps Dodge Corp. v. Labor Board, 313 U. S. 177, 198. Subject to these limitations, however, the power, which is a broad discretionary one, is for the Board to wield, not for the courts. In fashioning remedies to undo the effects of violations of the Act, the Board must draw on enlightenment gained from experience. When the Board, “in the exercise of its informed discretion,” makes an order of restoration by way of back pay, the order “should stand unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.” Virginia Electric & Power Co. v. Labor Board, 319 U. S. 533, 540. The Woolworth formula, as a general method of computation, is, under this test, proof against judicial challenge.
The Board’s very first published order awarded as back pay wages which would normally have been earned “during the period from the date of . . . discharge to the date of [an] offer of reinstatement . . . less the amount . . . earned subsequent to discharge . . . .” Pennsylvania Greyhound Lines, Inc., 1 N. L. R. B. 1, 51 (1935), enforced sub nom. Labor Board v. Pennsylvania Greyhound Lines, Inc., 303 U. S. 261. For fifteen years the Board followed the practice it had laid down in that case and calculated back pay on the basis of the entire period between discharge and offer of reinstatement. In 1950, in F. W. Woolworth Company, supra, the Board said: “The cumulative experience of many years discloses that this form of remedial provision falls short of effectuating the basic purposes and policies of the Act.” 90 N. L. R. B., at 291. The Board considered that its Pennsylvania Greyhound formula for computing back pay adversely affected “the companion remedy of reinstatement.” When an employee, sometime after discharge, obtained a better paying job than the one he was discharged from, it became profitable for the employer to delay an offer of reinstatement as long as possible, since every day the employee put in on the better paying job reduced back pay liability. Again, the old formula, in the same circumstances, put added pressure on the employee to waive his right to reinstatement, since by doing so he could terminate the running of back pay and prevent the continuing reduction of the sum coming to him. To avoid these consequences the Board laid down its new method of computation. 90 N. L. R. B., at 292-293.
It is not for us to weigh these or countervailing considerations. Nor should we require the Board to make a quantitative appraisal of the relevant factors, assuming the unlikely, that such an appraisal is feasible. As is true of many comparable judgments by those who are steeped in the actual workings of these specialized matters, the Board’s conclusions may “express an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions . . and they are none the worse for it. Chicago, Burlington & Quincy R. Co. v. Babcock, 204 U. S. 585, 598. It is as true of the Labor Board as it was of the agency in the Babcock case that “[t]he Board was created for the purpose of using its judgment and its knowledge.” Ibid.
It will not be denied that the Board may be mindful of the practical interplay of two remedies, back pay and reinstatement, both within the scope of its authority. Surely it may so fashion one remedy that it complements, rather than conflicts with, another. It is the business of the Board to give coordinated effect to the policies of the Act. We prefer to deal with these realities and to avoid entering into the bog of logomachy, as we are invited to, by debate about what is “remedial” and what is “punitive.” It seems more profitable to stick closely to the direction of the Act by considering what order does, as this does, and what order does not, bear appropriate relation to the policies of the Act. Cf. Labor Board v. Gullett Gin Co., 340 U. S. 361. Of course, Republic Steel Corp. v. Labor Board, 311 U. S. 7, dealt with a different situation, and its holding remains undisturbed.
It is urged, however, that no evidence in this record supports this back pay order; that the Board’s formula and the reasons it assigned for adopting it do not rest on data which the Board has derived in the course of the proceedings before us. But in devising a remedy the Board is not confined to the record of a particular proceeding. “Cumulative experience” begets understanding and insight by which judgments not objectively demonstrable are validated or qualified or invalidated. The constant process of trial and error, on a wider and fuller scale than a single adversary litigation permits, differentiates perhaps more than anything else the administrative from the judicial process. “[T]he relation of remedy to policy is peculiarly a matter for administrative competence . . . .” Phelps Dodge Corp. v. Labor Board, supra, 313 U. S., at 194. That competence could not be exercised if in fashioning remedies the administrative agency were restricted to considering only what was before it in a single proceeding.
This is not to say that the Board may apply a remedy it has worked out on the basis of its experience, without regard to circumstances which may make its application to a particular situation oppressive and therefore not calculated to effectuate a policy of the Act. The Company in this case maintains that it operates a seasonal business, that its employees may earn three times as much in the first and fourth quarters of a year as in the second and third, and that a quarterly calculation of back pay would in this context be obviously unjust. The Board suggests that it will be time enough to deal with such special facts in this case if the Board and the Company cannot agree on the fair application of the Woolworth formula after the order is sustained. But in case of such disagreement, the Company can be heard as of right on the issue it now raises only in the course of contempt proceedings and at the risk involved in them. We do not think contempt proceedings are appropriate for the settlement of such an issue. Phelps Dodge Corp. v. Labor Board, supra, 313 U. S., at 200. Indeed, the Board’s pre-Woolworth formula was adapted to varying circumstances as a result of proceedings had before the Board prior to the issuance of orders. See, e. g., Crossett Lumber Company, 8 N. L. R. B. 440, 496-498; Gullett Gin Company, Inc., 83 N. L. R. B. 1, 2, n. 4, .enforced sub nom. Labor Board v. Gullett Gin Co., supra. We assume that the Woolworth formula will be applied in like manner.
In any event, this aspect of the problem is not now properly here. The Company never made before the Board the objection it now bases on the seasonal nature of its business. Section 10 (e) of the Act, 61 Stat. 136, 147, 148, 29 U. S. C. (Supp. IV) § 160 (e), provides: “No objection that has not been urged before the Board, its member, agent, or agency, shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances.” In its Exception XXII to the Intermediate Report of the Trial Examiner, the Company objected that the recommendations as to the remedy were contrary to, and unsupported by, the evidence and contrary to law. This is not adequate notice that the Company intends to press the specific issue it now raises. Marshall Field & Co. v. Labor Board, 318 U. S. 253. The Company did not urge this issue either before the Board or in the Court of Appeals. No extraordinary circumstances are present such as would justify permitting the issue to be raised here for the first time.
The Company contends, finally, that though it might have been within the authority of the Board to devise the Woolworth formula under the language of the National Labor Relations Act, the fact that that language was reenacted while the Board adhered to its pre-Woolworth formula has deprived the Board of power to depart from the latter. We are told that Congress studied with unusual care the case law which had developed under the statute Congress was revising and reenacting by the Labor Management Relations Act, and that it adopted new language whenever it desired results other than the ones reached by the cases. We are cited to Labor Board v. Gullett Gin Co., supra, and asked to conclude as a general proposition that whenever Congress reenacted without change provisions of the National Labor Relations Act it thereby froze administrative decisions rendered under those provisions. Gullett Gin carries no such generalization. Having held that the Board’s practice of failing to deduct unemployment compensation payments in the calculation of back pay awards did not go beyond its powers, we said in that case that our holding was supported by the fact that Congress had reenacted the relevant part of § 10 (c) of the National Labor Relations Act with what we took to be notice of this practice. We thought Congress could be said to have agreed that the Board was acting within the authority Congress meant it to have.
Assuming Congress was aware of the Board’s pre-Woolworth practice of calculating back pay on the basis of the entire period from discharge to offer of reinstatement, we could say here, as we did in Gullett Gin, that Congress by its reenactment indicated its agreement that the Board’s practice was authorized. That leads us nowhere on the present issue, though it is only this far that what we said in Gullett Gin can lead us. In that case as here, again assuming notice, if Congress was satisfied that the Board was acting within its powers, the thing for it to do was what it did — reenact without change. In that case as here — though, of course, we had no occasion to say so in that case — if Congress had been more than satisfied with the Board’s practice, if it had wanted to be certain that the Board would not in future profit by its experience, it would have had to do more than it did; it would have had to change the language of the statute so as to take from the Board the discretionary power to mould remedies suited to practical needs which we had declared the Board to have and which the Board was asserting and exercising. We cannot infer an intent to withdraw the grant of such power from what is at most a silent approval of specific exercises of it.
We hold that the Board’s order is to be enforced.
Reversed.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
|
songer_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.
GIBSON v. EASTERN RIM & WHEEL CO.
Circuit Court of Appeals, Third Circuit.
January 21, 1929.
Rehearing Denied May 1, 1929.
No. 3820.
The opinion of the District Court was as follows:
“This cause concerns letters patent No. 1,204,658, issued November 14, 1916, to Hugh C. Gibson, for an improved wheel. Claims 8 to 12, both inclusive, are in issue. The invention more particularly concerns such a construction of automobile wheels as that a tire may, with ease and quickness, be removed and replaced.
“The Motion to Amend.
“The defendant of record in this ease is the Eastern Rim & Wheel Company. This is a mere selling concern. The real defendant may be said to be the Firestone Tire & Rubber Company, or its subsidiary, the Firestone Steel Products Company. The facts probably are that the last-named company does the actual manufacturing, but does it for the Firestone Tire Company, which in turn supplies the product to the record defendant and other concerns which do the selling. The amended answer frankly states these facts, and further that the defense is being conducted at the expense of the manufacturer through its own counsel. Counsel have with like candor made a like statement of their relation to the cause, but have made it clear that they appear here only for the defendant of record, or at least have entered no appearance for the other companies.
“We see nothing to be gained by allowing the amendment. If these other companies are made defendants ar codefendants, we could have no jurisdiction of the person of absent and unserved parties, but could deal with them only under Equity Rule 39 or as the court (acting by the then Judge Shiras) dealt with a similar situation in Eagle Mfg. Co. v. Miller (C. C.) 41 F. 357. We will in consequence assume this motion to be withdrawn, unless counsel for plaintiff shall press it further. We see nothing in it other than a skirmish for a position from which to get what each side thinks to be a tactical advantage in a later possible stage of this litigation.
“General Observations.
“There are two features of the general situation which provoke comment. One is that the automobile industry had its birth and early development in Prance. This is neither unusual nor surprising. The path of the progress of almost every art, science, and industry is strewn with monuments to the genius of the French. The learning of its men of science and the skill of its artisans and their contributions to everything of value which enters into the lives of peoples and of nations is attested and proved by the terminology and nomenclature of every art. Remove from it all which is known to us by a name which bespeaks its French origin, and there would be not much of value loft. The other is a truth which comes to us with the shock of a surprise. It is that prior to 1909 or 1910 the automobile industry of the United States, the product of which now dominates the landscape and crowds every street and highway, was then far behind that of Europe. Until after 1906 every racing car in the United States was of foreign build and equipment. One of the most appreciated advancements made in automobile accessories is that made in tires. Punctured or otherwise deflated tires, now rare, were, in the early days exasperatingly frequent, and yet before 1906, at the very time when most needed, means for the quick and easy changing of tires were unknown. It was at this very time the plaintiff came to this country, and for him counsel now make the bold claim that it was through him and the invention with which we are now concerned that the industry in America owes this great advance. If this claim is well founded, he has a real grievance, for the use of the inventive thought, which he asserts to be his own, has yielded literally untold, millions, of which he is yet to get the first dollar.
“The Claimed Invention.
“Counsel for plaintiff describes the invention to which, claim is made as ‘the use of a wedge-shaped, split, floating, movable, self conforming, flexible, automatically adjustable locking ring in connection with its adjuncts! In such a wealth of adjectives, some are bound to be overlapping. The idea we get of it is that the plaintiff was the first to think of and to introduce the use of a strip of metal wedge-shaped, so that it could easily be forced into a stable position, and bent into the. shape of a broken ring so as to hug closely the perimeter of a wheel to which it could be easily adjusted and from which readily and quickly removed. Expression and embodiment is given to the thought iu the sketch known to this record as that of April 20, 1906, plaintiff’s Exhibit No. 1. It will be noticed how emphatic and repeated is the reference to this so called ‘split ring’ feature. It was, of course, necessary for the plaintiff not merely to have conceived the inventive thought, but to have what is called ‘reduced it to practice,’ before it had otherwise found a place in the art. It is this sketch upon which counsel for plaintiff and the inventor rely as ‘his reduction to practice.’
“We assume that no fault will be found with us if we follow the path of logic to which counsel for plaintiff point us and which they have laid out for us. There was small choice left to counsel, because it is an admitted fact that the plaintiff’s invention was never incorporated in a wheel for use and that no. use was ever made of it except by those now charged to be infringers. No one, of course, can speak with positiveness of ‘the might have beens,’ but this record is filled with the probabilities that had not the defendant and others ‘infringed,’ the value of this invention must have been lost to the world, because the plaintiff himself did nothing with it. The plaintiff, it is true, made two wheels known to this record as the ‘red’ and ‘black.’ They were not made at the same time and were what are commonly called ‘models.’ Plaintiff does not rely upon them as reductions to practice, nor is the evidence of when they came into existence such as to make them available for any such purpose. The plaintiff relies, and with unshakable confidence, upon the April, 1906, sketch as his completed invention. An inventor must, however, do more than perfect his invention. He must within a prescribed time take the necessary steps to have his invention patented. The first step is an application. This was made by the plaintiff March 15, 1907, and this date thus for the time being became the date of his in. vention. We quote the plaintiff and his counsel in the assertion and acknowledgment that this date would not serve its purpose. It was necessary to carry the date of invention back of that of the application. The first date suggested was July, 1906. This Was not thought (perhaps because of the Omnia publication of June, 1906) to be early enough, and happily for. the inventor, the April, 1906, sketch which had been mislaid turned up with a date of April, 1906, which is asserted by the plaintiff to be early enough to anticipate all rivals. We are following the argument of counsel for plaintiff in regarding the establishment of this date as .vital to the case for the plaintiff. Any one who seeks to carry the date of an invention back of the filing date encounters a doctrine of the law which has behind it a well-established and indeed necessary policy.
“There is no need to cite the authorities in its support, to many of which we have been referred; but we give a few. Thayer v. Hart (C. C.) 20 F. 693; Westinghouse Electric & Mfg. Co. v. Mutual Life (C. C.) 129 F. 213; Safety Gas Lighter Co. v. Fischer Bros. (D. C.) 236 F. 955.
“The convictions we have of truth are of varying degrees of strength. All are familiar with the difference in strength of conviction which will support a finding in a civil ease and that which is- demanded in the courts of criminal law. Equity employs a phrase to describe the character of evidence called for to establish a fact before the chancellor will, in some instances, be moved to act. Such evidence must be ‘clear, precise and indubitable.’ This is part of the verbiage of the law, but the meaning is that the- conviction of the truth of what is to be found must in certain cases have a firm and unshaken seat in the mind which must rest in satisfied content with it. This is the bind of a conviction demanded before the date of an invention can be established otherwise than by the application for a patent. As a corollary, oral testimony to fix the date of an invention must have (unless the conditions are exceptional) corroboration in evidence which is in its nature inerrant. The testimony must carry conviction of its accuracy-in the fact sense, not merely of its truthfulness in the ethical sense. The value of this policy and doctrine of the law is emphasized when the interval between the date of the testimony and that to which it relates is great. Here the interval is over 21 years. Such testimony is proverbially unreliable and undependable. The illustrations of this truth are many. There is no man on the sunset side of middle life who would not testify, with absolute confidence in the accuracy of his observation and memory, that the winters of his childhood began sooner, lasted longer, and were attested by deeper snows and thicker ice than the winters of his manhood. There is one disturbing thought to the acceptance of such testimony. The father 'and the grandfather and the great-grandfather of the witness made the like comparison with the days of their youth, and hence the conclusion reached must be that a few generations ago polar weather prevailed in this latitude the year round. The law listens to such testimony, but before- crediting it requires that it be supported by the statistics of the Weather Bureau.
“Counsel for plaintiff boldly challenges the application of this test and plants his whole case upon the proposition that the sketch of April, 1906, is a full and complete disclosure of the invention and what he calls its ‘reduction to practice’ as of that date.
“We are asked to find, and without hesitation do so, that there was nothing in the developments of the trial which would justify any distrust of the integrity of any of the witnesses. With this finding made, counsel supplements it with the grant of letters patent and reaches at once the assured conclusion that the validity of the claims in issue has been established. The simplicity and compactness of this argument is due to the fact that it rests upon the sketch of April, 1906, and to the disclosure there of the ‘split ring’ element. The triumphant note sounded by counsel is that the wedged-shaped split ring is of the very heart and core of this invention and it is in the sketeh of 1906 and in the wheel of the defendant. The very simplicity' of this statement of the case for the plaintiff excites a flood of questions, the answer to no one of which leaves a satisfying impression upon the mind. If this sketeh of April, 1906, is a complete disclosure of the invention from which a wheel might be made, why was it not made the basis for the patent application of 1907 ? The answer in part is that the sketeh had been mislaid. This answer is not satisfying. There is no very clear statement of whether the wheel of this invention (other than the Vinet wheel) was in uso in England earlier in 1906. Such foreign use would by statute not be an obstacle to the grant of a patent here, but some inventive thoughts come to the inventor in a flash, and the Minerva-like completeness of this invention may be the fruit of a like happy thought or be due to the fact that the plaintiff brought the idea of it with him to America. The fact at all events is that he had it so firmly and clearly in mind that he made this sketch offhand and at a stroke. If he could do this in April, 1906, why could he not reproduce it when he filed his application? Why then was the mislaying of the paper in this respect of any consequence? Again, if the idea of this invention had been perfected in 1906, why were claims based upon it not formulated and incorporated in the application as they now are, and why is it that the claims now in issue were not formulated, one until 1913, and the others not until 1914, seven and eight years after the application was filed? Still again, if the 1906 sketeh is as complete a showing and embodiment of the invention as it is now claimed to be, why is it that the claims of the original application were rejected on the Vinet patent and this rejection accepted by the applicant without a word being said of the ‘split ring’ feature? One of three things would seem to be true. The 1906 sketeh does not disclose invention as elearly as counsel now urge upon us, or the original sketch did not disclose all that it now shows, or the Vinet patent was road to include a split ring. Still again, this invention was perfected as now claimed in 1906; the application was filed March 15, 1907, but no letters were taken out until November 14, 1916, an interval of ten years. No explanation of this long delay is attempted. This would be difficult to explain under any circumstances, but under the prevailing conditions explanation consistent with the present theory of an April, 1906, perfected invention is impossible. These conditions were that the demand for these demountable tires after 1906 and 1907 went on by leaps and bounds. By 1909 and 1910 and thereafter those now charged to be infringers were, to the knowledge of this plaintiff and his advisors, taking in year after year profits of millions upon millions, as we are now told, and yet this plaintiff sat still for more than nine years and saw this stream of wealth flow past him without stretching forth a hand, when all he had to do, as his counsel now claim, was to do as he now does, hold up in one hand the sketeh of 1906 and in the other the structure of the Vinet patent showing no split ring and demand the grant to him of a patent, as he now demands a decree in his favor. Again, wo are forced to say that either the sketeh of 1906 is of less evidentiary value than it is now urged upon us to he, or we cannot accept the recollection of witnesses who testify in 1927 that a sketeh made in April, 1906, was then what it is now. All possible emphasis and value is now given to the broken or split ring element in the combination which describes this invention. It, as before remarked, figures not only prominently but repeatedly in the 1906 sketch. The query cannot be suppressed, if like importance was given to this feature during the pendency of the application, why, when the claims of the application were rejected on tho Vinet patent, differentiation was not made on this ground, and why in the very claims in issue a broken of split ring is not mentioned, but a band which would cover a ring broken or unbroken? It is now confidently asserted that the Vinet patent discloses no broken ring as does the sketeh of 1906 (and in this we agree with the plaintiff), and it is on this ground that the invention of the 1906 sketch is claimed to have been unanticipated; hut the disturbing thought is that the file wrapper discloses no such importance given to this feature as now given. It is true that the application of March, 1907, discloses a split ring, but so likewise did the prior publication of June, 1906. This throws light on the importance now given to the sketch of April, 1906.
“We further have the final fact that it was not until 1925 that the first legal steps were taken to enforce the claimed rights of the plaintiff. To summarize these dates, we have an invention in 1906; patent application March, 1907; claims now in issue not formulated until 1913 and 1914; patent not taken out until November 14, 1916; and no action taken against infringers until October, 1925. This ease was heard in 1927, 21 years after the invention and 11 years after the grant of letters.
“We are not unmindful of the explanation given, and the explanation is one which is always directed to a sympathetic ear. It too often occurs that inventions, which have a value so great that language cannot convey a real sense of it, have yielded to the inventor no more than a pittance, simply because he was financially unable to get from them their yield. Financial inability to do anything with an invention is too common to excite comment. The owner of this valuable idea, however, was in touch with automobile manufacturers of England. His counsel makes for him the proud boast that he had made almost the very first automobile which had ever run over English roads. He was a member of the second largest Association of Mechanical Engineers in England and an associate member of the Institution of Electrical Engineers located in London. Immediately almost upon coming to this country he became a member of the Association of licensed Automobile Manufacturers and rendered service as an expert in the famous Selden patent litigations; he was likewise consulting engineer for a number of automobile manufacturers and the chief engineer of another having a large force of other engineers, draftsmen, testers, etc., under him.
“We are quite in accord with counsel for plaintiff that there is no necessary relation between money gathering and ,brains, and that there may be either without the other; but we have thus culled from the deserved tribute paid by counsel to client, not to show that he must have accumulated a store of money, but that he must have known and fully appreciated the commercial value as well as the mechanical worth and merit of his invention and must have known of the extensive unauthorized use of it. Lack of funds would explain his delay in locking horns with powerful infringers, but would not explain the delay of nearly 10 years in taking out letters patent. On the contrary, the very plentitude of the' rich harvest in prospect would: be supposed! to> appeal more strongly to one in need. The further fact disclosed is that he was in close touch with those whose business gave them a deep interest in the subject and who. had' the facilities for getting such work done; and yet not a single wheel', embodying his- invention was ever made. This places him. in. the weak position of being not only the holder of a mere paper patent, but one whose- validity is dependent upon the accuracy of a more than 21 year old recollection of What was at the time no more than a casual incident. We have every sympathy with an. inventor who has. arrayed against him. great and powerful interests. We have every willingness to listen and to understand on. what he bases his claim of right and in what he has been wronged, and every inclination when convinced to vindicate his right and to grant redress for the wrong. Because of this, we have given much more than the usual consideration to the feature of the ease, which we have discussed at what is doubtless undue and tiresome length.
“As we grasp the thought of the experienced counsel who have prepared and argued his ease, it is that the pivoting point ira the ease and the keynote of the argument is the ‘split ring’ element in plaintiff’s combination. There are, of course, other elements of value, but it is upon this he rests his claims. It is a reiteration to mention that this ‘split ring’ feature was in the literature of the art as early as June, 1906. The application, we repeat, was filed Marsh 15, 1907. This feature had then been anticipated, unless the date of invention could be pushed back to an earlier date. This means that a finding that the date of the invention was that of Exhibit No. 1 is essential to a decree in plaintiff’s favor. This finding wa cannot make. We phrase this finding in terms as favorable to the plaintiff as can he made. We do not find that this was not the date of the invention, but we do find that after the great lapse of time, and in view of all the surroundings of the incident of the April, 1906, sketch, we are unconvinced of the essential fact in question with that degree of certainty which the law requires.
“A part of the argument for the defense is that the Vinet patent discloses a split ring. Counsel for defendant have presented the argument in the form of what they deem to be the equivalent of a demonstration in syn-thetical geometry. No unbroken ring or band can he commercially make to serve the. purpose of this interlocking ring. The sim-pie and well-known expedient to make it practical is to break the circle, or to make of it what is called a ‘split ring.’ The plaintiff himself, when differentiating his wheel from what he understood to be tbe wheel of the Vinet patent, condemned the latter to be utterly beyond the pale because it lacked the ‘split ring’ feature. Split rings themselves were old in the art. The argument in consequence is that any mechanic would know that a ‘split ring’ mnst enter into the Vinet combination. We do not yield to the logic of this argument. It may prove that the Vinet wheel could not be made on a commercial basis without the use of a ‘split ring,’ but it does not prove that Vinet had in mind or disclosed a split ring. He certainly does not disclose it. One trying out his wheel might discover that the use of a split ring gave it practical value, but, if so, the discovery would be owing to no hint given by the Vinet patent. The Omnia publication of June, 1906, gives emphasis to this.
“In view of the already overlong length of this opinion and that tho plaintiff rests his case upon April 20, 1906, as the natal day of his invention, we see no need to go into the other features of the defense, one of which is that with credit given to Vinet for tho ‘split ring’ feature or its being out of the case, the plaintiff in order to charge the defendants with infringement must encounter anticipation by Vinet, or if tho latter is escaped by a more narrow construction of the claims, then the defendant is acquitted of infringement. These and other like questions we leave to those who enjoy struggling with mechanical problems.
“A decree dismissing the bill for want of equity, tho letters patent being invalid because of the absence of invention due to a lack of novelty, may be submitted, carrying costs against the plaintiff, with leave to add such special findings as either party may desire.”
E. Hayward Fairbanks, of Philadelphia, Pa., for appellant.
Charles Neave, of New York City, Albert L. Ely, of Akron, Ohio, and Benjamin O. Frick, of Philadelphia, Pa., for appellee.
Before BUFFINGTON and DAVIS, Circuit Judges, and THOMSON, District Judge.
PER CURIAM.
The underlying question in this ease was the validity of tile patent involved’ because of the novelty of its alleged invention. No principles of law are involved.
The court below discussed the questions involved with unusual detail and thoroughness in an exhaustive opinion. The court has had the benefit of an equally thorough presentation of the ease by counsel for plaintiff in oral argument and comprehensive brief, but such presentation and our own study of the record fails to convince us the trial judge was in error. In view of his able opinion, and finding ourselves in accord therewith, we adopt it as expressive of our view and limit ourselves to affirming the deeree based upon it.
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_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.
Arthur P. BOH, Appellant, v. PAN AMERICAN PETROLEUM CORPORATION, Appellee.
No. 10581.
Circuit Court of Appeals, Fifth Circuit.
May 8, 1943.
Chas. F. Fletchinger, of New Orleans, La., for appellant.
Eugene D. Saunders and Htrman M. Baginsky, both of New Orleans, La., for appellee.
Before SIBLEY, HUTCHESON, and McCORD, Circuit Judges.
PER CURIAM.
When this case was here before, the judgment was reversed and the cause remanded for further proceedings consistent with the opinion rendered. Boh v. Pan American Petroleum Corporation, 5 Cir., 128 F.2d 864. The further proceedings in the lower court and the judgment entered were in strict conformity with the opinion and mandate of this Court.
Affirmed.
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_respond1_1_3
|
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 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.
C. L. TYRRELL, as Trustee of the Estate of Roy E. Shoaff Drilling Co., Inc., Bankrupt, Appellant, v. DOBBS INVESTMENT CO. (formerly known as Dobbs GM Diesel, Inc.), Appellee.
No. 7660.
United States Court of Appeals Tenth Circuit.
Oct. 23, 1964.
Arthur J. Seifert, Denver, Colo. (John W. Low, Denver, Colo., on the brief), for appellant.
Thomas J. Kerwin, Denver, Colo. (Martin J. Harrington and Hodges, Silver-stein, Hodges & Harrington, Denver, Colo., on the brief), for appellee.
Before MURRAH, PHILLIPS and LEWIS, Circuit Judges.
PHILLIPS, Circuit Judge.
The Roy E. Shoaff Drilling Co., Inc., hereinafter referred to as the Drilling Company, was adjudicated a bankrupt on June 8, 1960. Thereafter, Tyrrell, the duly qualified and acting Trustee of the bankrupt estate, commenced the instant action to recover the value of two diesel engines alleged to have been transferred by the Drilling Company to Dobbs Investment Co., hereinafter referred to as Dobbs, as a preference under § 60 of the Bankruptcy Act. The parties filed a joint motion requesting the court to determine in advance of trial the issue of whether the security instrument through which Dobbs claimed title to the engines was “filed” so as to perfect the transfer of the engines within the meaning of § 60, sub. a(2) of the Bankruptcy Act, and if it was so filed, the date on which such filing was perfected.
The trial court found and decreed that the security instrument was filed so as; to perfect the transfer of the engines; within the meaning of § 60, sub. a(2)r and that it was filed with the County Clerk of Kimball County, Nebraska, between April 4, 1960, and April 13, 1960. The Trustee has appealed.
The parties stipulated the facts considered by the trial court on their joint motion for ruling in advance of trial. Such stipulation, the exhibits attached thereto, and the uncontroverted facts set forth in the pretrial order disclose the following facts:
On March 23, 1960, Roy E. Shoaff, the president, director, and sole stockholder of the Drilling Company, executed an instrument designated as a chattel mortgage, and hereinafter referred to as the security instrument, giving Dobbs a security interest in the two diesel engines. The face of the security instrument contains a detailed description of the two* engines, the amount secured, the down payment made, the unpaid cash balance,, the financing charge, the total of the unpaid cash balance and the financing charge, the number, amount and due dates of the installment payments to be made by the debtor, a mortgage granting clause, the date of execution, the name and signature of the debtor and the name and signature of the creditor.
The security instrument further contained the following provisions:
“The Mortgagor understands and agrees that the provisions on the reverse side hereof, hereby incorporated by reference, constitute a part, of this chattel mortgage.
“The within chattel mortgage is; hereby assigned to Yellow Manufacturing Acceptance Corporation under the provisions of the ‘Seller’s-(Mortgagee’s) Assignment Recommendation and Guaranty’ on the reverse side hereof read by the undersigned and made a part hereof as if fully set forth herein.”
The assignment to Yellow Manufacturing Acceptance Corporation, hereinafter referred to as YMAC, was duly executed by Dobbs.
The reverse side of the security instrument contained the terms of the assignment to YMAC and a list of 15 provisions or conditions of the security transaction dealing with possession and use of the engines, insurance requirements, penalties for late payment of installments, repossession, warranty, assignment, and prepayment.
The engines were to be installed on a drilling rig owned by the Drilling Company and covered by a security instrument to Mid-Continent Supply Co. On March 30, I960, Mid-Continent and the Drilling Company executed a “Consent and Waiver” agreeing that regardless of the manner in which the engines were installed on the rig they would not lose their character as separate personal property, could be removed from the rig at any time, would remain subject to the terms of the security instrument of Dobbs, and that Mid-Continent would not gain any interest in the engines.
On April 4, 1960, YMAC mailed a true copy of the face of the security instrument, a true copy of the Consent and Waiver, a check in the amount of $2 in payment of the filing fee, and a letter requesting that the two documents be filed, from its office in Denver, Colorado, to the ■“County Clerk, Banner County, Kimball, Nebraska.”
Kimball, Nebraska, is the county seat of Kimball County. Harrisburg, Nebraska, is the county seat of Banner County. Kimball County was the proper place for filing the security instrument.
On April 13, 1960, nine days after the documents were mailed, YMAC received them back from the County Clerk of Banner County, Nebraska, with a notation on the bottom of YMAC’s forwarding letter that liens on motor vehicles can be filed only on the certificate of title of the vehicle.
On April 14, 1960, YMAC mailed the two documents to the County Clerk, Kim-ball County, Kimball, Nebraska, with a letter explaining that the diesel engines were not motor vehicles and requesting that the documents be filed. The two documents were filed by the County Clerk of Kimball County on April 19, 1960, and the parties have stipulated that he received them on or about April 19, 1960.
Thereafter, the true copy of the Consent and Waiver was retained in the records of the County Clerk of Kimball County, but the true copy of the security instrument was, by error, returned by mail to YMAC. It was received by YMAC on April 20, 1960.
In June, 1962, the true copy of the face of the security instrument was found in YMAC’s files and returned to the County Clerk of Kimball County.
We think that although the security instrument is designated a chattel mortgage, in fact it more closely resembles a conditional sales agreement, but regardless of the nature of the security instrument, we are of the opinion that the security transaction was perfected under Nebraska law on April 19, 1960, when the Clerk of Kimball County received and filed the true copies of the face of the security instrument and the Consent and Waiver. The information contained on the face of the security instrument was sufficient to apprise third persons of the exact interests of the parties, the amount due, a complete description of the engines, and the number and amount of the installment payments from which the due date could be determined, and that was sufficient compliance with the filing statutes of Nebraska relating to chattel mortgages and conditional sales contracts, respectively.
Furthermore, the validity of the filing of the security instrument was not affected by the failure of the Deputy County Clerk to retain it in the records of the Office of the County Clerk.
We now turn to a consideration of whether the transfer was “for or on account of an antecedent debt” under the provisions of § 60 of the Bankruptcy Act.
Section 60 of the Bankruptcy Act, 11 U.S.C.A. § 96, provides in part as follows:
“ § 96. Preferred creditors
“(a)(1) A preference is a transfer, as defined in this title, of any of the property of a debtor to or for the benefit of a creditor for or on account of an antecedent debt, made or suffered by such debtor while insolvent and within four months before the filing by or against him of the petition initiating a proceeding under this title, the effect of which transfer will be to enable such creditor to obtain a greater percentage of his debt than some other creditor of the same class.
“(2) For the purposes of subdivisions (a) and (b) of this section, a transfer of property other than real property shall be deemed to have been made or suffered at the time when it became so far perfected that no subsequent lien upon such property obtainable by legal or equitable proceedings on a simple contract could become superior to the rights of the transferee. * * *
“(7) Any provision in this subsection a to the contrary notwithstanding if the applicable law requires a transfer of property other than real property for or on account of a new and contemporaneous consideration to be perfected by recording, delivery, or otherwise, in order that no lien described in paragraph (2) of this subsection could become superior to the rights of the transferee therein, * * * the time of transfer shall be determined by the following rules:
“I. Where * * * (B) the applicable law specifies no such stated period of time or where such stated period of time is more than twenty-one days, and compliance therewith is had within twenty-one days after the transfer, the transfer shall be deemed to be made or suffered at the time of the transfer.
“II. Where compliance with the law applicable to the transfer is not had in accordance with the provisions of subparagraph I of this paragraph, the transfer shall be deemed to be made or suffered at the time of compliance therewith, * * *.”
Under § 60, supra, if the security instrument was filed within 21 days of the date of its execution, i. e., the date of the transfer, as the trial court found, then the transfer will be deemed to have been made at the time of such execution and the transaction does not give Dobbs a voidable preference.
The Trustee contends that the court erred in finding that the security instrument was perfected by filing within 21 days of the date of its execution, because there was no proof that the County Clerk of Kimball County received the documents for filing during that period. We agree.
Dobbs argues that due to the fact that the documents carried the specific address, “Kimball, Nebraska,” the Post Office would have disregarded the “Banner County” portion of the address and would have delivered the documents to “County Clerk * * * Kimball, Nebraska,” but there is no evidence in the record from which it can be determined what the Post Office did, except that at some time between April 4, 1960, and April 13, 1960, the documents were in the hands of the County Clerk of Banner County, from which it could as reasonably be inferred that the Post Office delivered the documents to the County Clerk of Banner County, as that the County Clerk of Kimball County received them and forwarded them to the County Clerk of Banner County.
In order to sustain the position of Dobbs, it would be necessary to infer that the documents were first delivered to the County Clerk of Kimball County, and that the County Clerk of Kimball County then mistakenly delivered or forwarded the documents to the County Clerk of Banner County. Neither of such inferences can be legitimately drawn from the facts. Inferences may be drawn only from facts in evidence. They may not be based upon mere speculation, guess, or conjecture as to what might have happened.
Further, Dobbs’s argument requires the pyramiding or imposition of one inference upon another to establish the facts necessary to its case. That is not permissible and amounts to mere speculation.
Nor is Dobbs aided by the fact that a period of nine days elapsed between the time YMAC mailed the documents and the time it received them back from the County Clerk of Banner County. The further facts that the documents took five days to reach the County Clerk of Kimball County the second time they were mailed by YMAC, and that the copy of the security instrument which was erroneously returned by the Deputy Clerk to YMAC took only one day to reach YMAC allows a reasonable inference that the mail schedule between Denver, Colorado, and the Panhandle of Nebraska varies considerably, but such facts do not reasonably allow an inference that the County Clerk of Kimball County received the documents at any time between April 4, 1960, and April 13, 1960, and then forwarded them to the County Clerk of Banner County.
Reversed and remanded for further proceedings in accordance with this opinion.
. Gillespie v. Brown, 16 Neb. 457, 20 N.W. 632, 634; Nebraska Revised Statutes, 1943, § 36-301.
. Nebraska Revised Statutes, 1943, § 36-207.
. Perkins v. Strong, 22 Neb. 725, 36 N.W. 292; Deming v. Miles, 35 Neb. 739, 53 N.W. 665, 666; Watkins v. Bugge, 56 Neb. 615, 77 N.W. 83, 84; Powers v. Spiedel, 84 Neb. 630, 121 N.W. 968, 969.
. Waters v. National Life & Accident Ins. Co., 10 Cir., 156 F.2d 470, 472-473.
. Tucker v. Traylor Engineering & Manufacturing Co., 10 Cir., 48 F.2d 783, 786; Gas Service Co. v. Hunt, 10 Cir., 183 F.2d 417, 420; Franks v. Groendyke Transport, 10 Cir., 229 F.2d 731, 735.
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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songer_state
|
36
|
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".
UNITED STATES of America, Plaintiff-Appellee, v. Joseph VAN DYKE, III, Defendant-Appellant.
No. 79-5020.
United States Court of Appeals, Sixth Circuit.
Argued June 21, 1979.
Decided Sept. 13, 1979.
Richard J. Marco (Court appointed CJA), Cleveland, Ohio, for defendant-appellant.
.James R. Williams, U. S. Atty., Ralph E. Cascarilla, Cleveland, Ohio, for plaintiff-appellee.
Before WEICK and MERRITT, Circuit Judges and PECK, Senior Circuit Judge.
WEICK, Circuit Judge.
Defendant-Appellant Van Dyke was indicted by the Federal Grand Jury in the Northern District of Ohio, Eastern Division for mail fraud in violation of 18 U.S.C. § 1341. The indictment contained 29 counts. During his trial by jury which lasted for nearly two months the Government dismissed two counts of the indictment for technical reasons and the jury found him guilty of three of the remaining 27 counts. He was sentenced pursuant to 18 U.S.C. § 4205(b)(2) to four years imprisonment on each count, to be served concurrently. In his appeal, he raises the following issues:
1. Violation of his constitutional right to a speedy trial.
2. Deprivation of his constitutional right to a fair trial by the manner and method in which his trial was conducted by the District Court.
3. The District Court erred in admitting the testimony of' his agents who testified as to the false and fraudulent representations.
4. The District Court erred in denying his motion for a mistrial where certain jurors had read a newspaper advertisement of a former employee who had testified as a witness.
As we will point out, these contentions are without merit and we affirm.
I
Facts
Appellant was the chief executive officer of Rings ’N Things, a company that wholesaled costume jewelry. Rings ’N Things was a subsidiary of Atlantic Southern Company, a holding company owned and controlled by Appellant. Appellant and his wife were on the Board of Directors of Rings ’N Things.
In addition to selling jewelry, Rings ’N Things principally was engaged in selling distributorships to investors. A distributorship was portrayed as an opportunity for individuals with a limited amount of cash to go into business for themselves and earn large profits for only part-time work. Distributors were to place displays of good quality jewelry in drug stores, newsstands, beauty parlors and other retail establishments on a consignment basis. The distributor’s duties were to collect proceeds of sales from merchants who sold the jewelry and to keep the displays stocked with saleable jewelry bought from Rings ’N Things. For an investment of $4925.00 to $6495.00 an investor-distributor was promised 320 dozen pieces of jewelry of good quality, display stands, twenty “pre-sold” retail sales locations wherein merchants had already agreed to accept Rings ’N Things displays on a consignment basis, a unique and proven successful marketing strategy, distribution rights to a specific geographic area, placement of the displays in the twenty locations by a “fashion consultant” experienced in Rings ’N Things successful marketing strategy, and a guarantee that if the investor was dissatisfied after one year, the company would repurchase the distributorship for an amount substantially equal to the initial investment less the investor’s gross sales. The investment in a Rings ’N Things distributorship was portrayed as risk free.
In fact, these representations or promises were in part or wholly false. New of the investors received 820 dozen pieces of jewelry. Of those who did receive jewelry, most received a small shipment of several dozen pieces. In fairness, some of these partial shipments contained good quality jewelry as promised, but often in these partial shipments the jewelry was unpacked, disorganized, or broken. Many investors received no jewelry or display racks at all. Contrary to representations, Rings ’N Things’ distributorship method of sales was not unique, but had been substantially acquired by Appellant while he was previously employed as a distributorship salesman of costume jewelry at Phase III, of Southfield, Michigan. Only a handful of distributors ever received the twenty pre-sold locations that were promised; many received none at all. Similarly, very few of the distributors received promised assistance and expertise from fashion consultants. Contrary to representations, distributors often did not receive the exclusive right to sell in a given geographic area. Selling territories often overlapped without the consent of the persons involved, and in one case at least more distributorships were sold in a small town than the population could possibly accommodate, which was with the Appellant’s full knowledge. Although several distributors received their money back, as promised, after .threatening publicity-generating lawsuits, the vast majority of distributors have not received their money back.
Appellant had developed a “sales pitch” and a brochure used in sales presentations. Appellant sold the first of the distributorships himself. Lester Kean, one of the first individuals to purchase a distributorship, testified that Appellant used stationery indicating that Rings ’N Things had offices in cities around the United States and that Appellant represented Rings ’N Things as a nationwide company that was very successful. At that time, of course, Rings ’N Things had no such offices, no such nationwide scope, and no such financial strength. Appellant trained salesmen for his organization and trained Richard Neiswonger, his national sales manager, to use his sales pitch. Neiswonger, who among other things was a former magician, trained other salesmen who were given a commission of $800.00 to $900.00 for each distributorship they sold. Salesmen were instructed to adhere to the sales presentation as supplemented by reading through the sales brochure with the potential investor.
An investor would read an advertisement in the business section of a local newspaper which advertisement would be entitled variously, “Local distributor can make monthly gross revenue of up to $3,456,” “Local distributor has monthly revenues of $3,456,” or “Local distributor has monthly gross revenue of $8,456 part time with a net profit of 85 percent ($1,206.60) for 7 to 10 hours work weekly. Assume business responsibilities within four to six weeks,” whereas no such proven profit record existed. After reading the advertisement, an investor would call a toll free number and ask for Tom Buchanon, an assumed name. An appointment with a salesperson would be arranged. The salesperson displayed good quality merchandise at this meeting and worked through the sales brochure. The potential investor was given a “negative sell”, i. e. the sales effort was directed at inducing the individual into offering to buy a distributorship. The individual was often asked to sign a document indicating that he would not disclose the information offered at the sales presentation. New sales were closed immediately. In most instances the investor contacted the salesman several days later and agreed to buy a distributorship. After mailing a certified check and signed distributorship contract to Rings ’N Things in Cleveland, the person was notified by the company that his application for a distributorship was accepted pending final acceptance by the board of directors of the corporation, which included Appellant and his wife.
Although minor variations existed in the sales presentations described at trial by six salesmen, the testimony viewed in its entirety reveals that the sales presentations were strikingly similar in content. Several misrepresentations and falsehoods were stated to induce the sale. The company was portrayed as an established, well-financed and experienced company, whereas in fact the company was less than two years old and was poorly financed. Appellant himself had little personal knowledge of the costume jewelry business. The company was portrayed as seeking to appoint select persons as distributors. Investors were told that not everyone would qualify, whereas the evidence indicates that no application for a distributorship was rejected and no such discrimination in the selection of potential distributors took place. The marketing method employed by the company was portrayed as a proven success, whereas in fact this method was unproven by Appellant and no company experience, studies, or statistics existed to prove the claims of consistent success. Average daily sales were represented to be four sales per day for the company nationwide in early presentations, six to eight in later presentations, whereas actual sales appeared to be often one piece of jewelry per day or less for the distributors who received merchandise. At one salesman training session conducted by Neiswonger, assisted by Appellant, the salesmen were told that some distributors earned as high as $100,000.00 per year and that average sales per day for the company were six to eight sales, whereas no such profits or sales figures existed in fact.
To induce the sale of a distributorship, investors were given the names of fellow investors to call to discuss the success of their distributorships. Early in the life of Appellant’s enterprise actual distributors were used who gave glowing generalities on the success of their distributorships for which praise they were paid by Appellant. When these references began giving bad recommendations or began refusing to answer calls, Appellant hired “singers” who were paid to falsely extoll the success of Appellant’s distributorships.
In late 1975 Appellant was repeatedly warned by employees that his organization was incapable of handling the demands of outstanding distributorship contracts. Appellant nevertheless demanded that 200 new distributorships be sold in January, 1976, alone. In early 1976 little or no merchandise was bought to honor Appellant’s company’s contractual obligations. Nevertheless, as of April 30, 1976, Appellant’s company at his direction had spent approximately $1,230,000.00 of $1,500,000.00 raised from the sale of distributorships. As of that date, only approximately $10,000 in jewelry reorders had been placed. No merchandise was received or ordered from jewelry suppliers after mid-July, 1976, yet Appellant inexorably demanded the sale of more distributorships until his company was forced into bankruptcy in January, 1977. Many distributors complained by telephone and letter, however, little or no results were obtained. Invariably callers were told that Appellant was a busy man and could not speak with them.
While the lawful demands of distributors were left unattended Appellant spent considerable sums for his personal benefit. Among other things, Appellant purchased a $115,000.00 seaside home on Jekyll Island, Georgia, using company funds partially for a down payment and for the purchase of furniture. He arranged for the company to pay his first wife $500 per month for six months in alimony payments and listed her on the company payroll as a fashion consultant, whereas in fact she provided no services whatsoever to the company. He bought his second wife an $8,000.00 diamond necklace. While distributors were receiving piecemeal portions of jewelry because of a lack of warehoused merchandise, Appellant in addition to other paid expensés and benefits, including spending money, drew an official salary of $10,000.00 per month in 1976. At company expense Appellant rented, furnished and decorated at a cost of approximately $15,000.00 a three bedroom high rise apartment suite for his personal use which overlooked Lake Erie. He purchased approximately $11,000.00 in stereo equipment, the great majority of which was installed in Appellant’s apartment. At company expense he bought a Cadillac Seville and rented another Cadillac. At company expense he bought a boat in Florida for at least $29,500.00. He paid in excess of $5700,00 in company funds to Golden Isles Aviation, a commuter airline, for weekend commuting from Jacksonville, Florida, to his personal residence on Jekyll Island, which sum does not include regularly scheduled commercial air fare between Jacksonville and Cleveland. He later leased a private plane at $3500.00 per month for two months which he used at his convenience. In September and October, 1976, near the end of the short twenty month life of Appellant’s organization, Appellant spent $7000.00 for a trip for his wife, himself, and another couple to the Cayman Islands. Though Appellant asserts that this trip was for business purposes Appellant himself described it as a vacation on company internal records.
Appellant’s costume jewelry distribution business collected in excess of $3.5 million during a 20 month period from over 500 investors in distributorships in at least 40 states by the use of the mails and by various false and fraudulent statements contained in a “sales pitch” by its agents and sales brochure conceived by Appellant. While Appellant’s business was floundering shortly before its involuntary bankruptcy, Appellant used company funds for a multitude of personal expenses.
At the trial which lasted nearly two months the Government called more than 70 witnesses and presented over 300 documentary exhibits. It is significant that the conviction on three counts of the indictment all involved sales of distributorships in December 1976 which was the last full month of Rings ’N Things business operation and on the eve of its bankruptcy which occurred in January 1977, which distributorships were at the time worthless.
In reviewing the evidence, we are mindful that the scheme to defraud element required under § 1341 is not defined according to a technical standard. The standard is a “reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general and business life of members of society.” United States v. Bruce, 488 F.2d 1224, 1229 (5th Cir. 1973), quoting Gregory v. United States, 253 F.2d 104, 109 (5th Cir. 1958). It is not necessary that the scheme be fraudulent on its face but the scheme must involve some sort of fraudulent misrepresentations or omissions reasonably calculated to deceive persons of ordinary prudence and comprehension. United States v. New South Farm & Home Co., 241 U.S. 64, 71, 36 S.Ct. 505, 60 L.Ed. 890 (1916); Bruce, supra, at 1229; United States v. Pearlstein, 576 F.2d 531, 535 (3d Cir. 1978). The question of fraudulent intent under § 1341 is for the jury. United States v. Hopkins, 357 F.2d 14, 18 (6th Cir. 1966). Viewing the evidence in the light most favorable to the Government, as we must, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), Ross v. United States, 197 F.2d 660, 665 (6th Cir. 1952), we believe that there is substantial evidence from which the jury could find fraudulent intent.
The court denied defendant’s motion for judgment of acquittal made at the close of the Government’s evidence. The defendant did not renew the motion at the close of all of the evidence. This constituted a waiver of his objection to the denial of his motion for judgment of acquittal on that ground. United States v. Maffei, 450 F.2d 928 (6th Cir. 1971), cert. denied, 406 U.S. 938, 92 S.Ct. 1789, 32 L.Ed.2d 138 (1972).
II
Appellant next argues that he was denied his sixth amendment right to a speedy trial. Pre-trial proceedings were conducted 214 days after Appellant’s arraignment. The trial commenced 362 days after arraignment.
Although this delay was in excess of that permitted under the Northern District’s interim plan for the prompt disposition of criminal cases, this Circuit has held that this fact alone does not mandate reversal. United States v. Callahan, 579 F.2d 398 (6th Cir. 1978); United States v. Lee, 575 F.2d 1184 (6th Cir. 1978). Four factors should be considered in determining whether a particular defendant has been deprived of his right to a speedy trial: the length of the delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The settled law of this Circuit is that Appellant must show that the prosecutorial delay was intentional, and as a result the defendant suffered actual prejudice. United States v. Alred, 513 F.2d 330, 332 (6th Cir. 1975); United States v. Giacalone, 477 F.2d 1273, 1276 (6th Cir. 1973). Unintentional delays caused by overcrowded court dockets or understaffed prosecutors are among the factors to be weighed less heavily than intentional delay, calculated to hamper the defendant. Strunk v. United States, 412 U.S. 434, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973). Length of delay alone does not establish prejudice. See, e. g., United States v. Sandy, et al., 605 F.2d 210, No. 77-5367, etc. (6th Cir. July 27, 1979) (thirty five month delay between indictment and trial not sufficient for reversal); United States v. Enright, 579 F.2d 980 (6th Cir. 1978) (twenty three month delay between indictment and trial not sufficient for reversal); United States v. Lemmons, 527 F.2d 662 (6th Cir. 1975) (eleventh month delay); Short v. Cardwell, 444 F.2d 1368 (6th Cir. 1971) (over four year delay). The record is devoid of any evidence of prejudice to Appellant or intentional delay by the prosecution in the preparation of this protracted case. Appellant argues that he suffered emotional strain while awaiting trial and that he was unable to find employment, however some degree of emotional strain exists in every ^criminal proceeding. Arrant v. Wainwright, 468 F.2d 677, 682 (5th Cir. 1972). Appellant submits that the strain in the instant case was unusual because of great publicity, fanfare, and “bad press” surrounding his indictment, however we do not believe that this strain, though regrettable, requires reversal of Appellant’s conviction.
Ill
Although Appellant cites no authority for support, Appellant’s next argument is that the District Court scheduled the trial so poorly that Appellant was denied a fair trial. Prior to trial in its Memorandum Opinion and Order denying Appellant’s Motion to Dismiss the District Court stated:
It appears that the Defendant would suffer considerable harm if he were forced to defend a suit in which testimony was continually interrupted for days at a time because of the necessity for the Court to attend to other urgent matters. The business of this Court in the past year has been such that the probability of that happening could not be ignored. Therefore, it seemed wise to postpone beginning the trial until it could be conducted with some continuity.
In spite of this pronouncement, the District Court nevertheless proceeded to schedule Appellant’s trial on twenty three days over a fifty five day period. Thirteen of these days were half morning sessions; “full” days were relatively brief morning and afternoon sessions separated by a two hour lunch. In the midst of trial, with the consent of the parties, the District Judge for ten days attended a judicial conference in Williamsburg, Virginia. Court was also recessed for a three day period and for five individual days sprinkled throughout the course of the trial. The District Court indicated that these delays were necessary because of administrative duties incidental to the District Court’s position as Chief District Judge of the Northern District of Ohio and the District Court’s preoccupation with the Cleveland school desegregation case. Appellant submits that the delays, which occurred primarily during the prosecution’s lengthy presentation, may have caused the jurors to mull over or give undue consideration to the Government’s position, or, alternatively, that the jurors may have forgotten testimony favorable to Appellant raised on cross examination or inadvertently raised on direct examination.
Moreover, the Appellant at oral argument complained about the District Court’s conduct. In particular, after indicating to the jury by word and deed during the trial that he was pressed for time, the District Court announced just prior to the presentation of the Defendant’s case that
THE COURT: I believe that Friday I will be unable to go forward in the afternoon. If I am not completely tied up in my chambers and it is a nice day, I’m going to take the afternoon off and go fishing.
(Laughter)
DEFENSE COUNSEL: I saw you on television, Judge.
A JUROR: I’ll go with you.
A District Court has wide discretion in the scheduling of a trial which should not be disturbed in the absence of manifest abuse which does not exist here. Carter v. United States, 373 F.2d 911, 914 (9th Cir. 1957); Kansas City Star Co. v. United States, 240 F.2d 643, 651 (8th Cir. 1957). We note that parties appear to more often object to the denial of a recess as an abuse of discretion by the District Court than to a stretching of the trial over a period of time by the District Court. See Annot., 21 A.L.R.Fed. 948 (1974). This trial was not hurried and encumbered by arbitrary time limits. See United States v. Diharce-Estrada, 526 F.2d 637 (5th Cir. 1976). We believe that this trial was not well scheduled. The District Court should have arranged his schedule so that Appellant’s trial could have been held with more sustained continuity. We do not believe, however, that what he did constituted manifest abuse which requires us to reverse Appellant’s conviction. The number of interruptions alone does not establish actual prejudice. Aside from inconvenience shared by both parties in order to comply with the Court’s schedule, Appellant has failed to demonstrate any actual prejudice that could have resulted to him from the scheduling. The record shows that defense counsel employed extensive cross examination of witnesses including frequent recross examination. Counsel for both sides were commendably well prepared for each session. If the jury did forget testimony, and we do not so conclude from the record, it is equally probable that the jury forgot evidence favorable to the prosecution, whose case in chief was largely interrupted, as it is probable that the jury forgot evidence favorable to Appellant.
Viewing the record as a whole we conclude that the District Court conducted the trial evenhandedly. In the face of substantial evidence from which the jury could have found fraudulent intent, the jury found Appellant guilty of only counts four, five and seventeen which were based upon distributorship sales ordered by Appellant in December, 1976, well after the point in time when it was totally obvious that Appellant’s company had neither the merchandise nor the personnel to fulfill its contractual obligations. Accordingly, we find no prejudicial error resulting from the scheduling and conducting of the trial.
IV
Appellant contends that the District Court erred in admitting over Appellant’s objection testimony by victims of the fraud. He submits that this testimony was hearsay because there was insufficient evidence that the salesmen acted as agents of Appellant’s company, or, alternatively, that if the salesmen were agents, that there was insufficient evidence of authorization or ratification by Appellant of the false statements made by the salesmen. Appellant does not dispute that false statements were made; he disputes that he instructed the agents to make untrue or misleading statements. He further submits that he was prejudiced because the Government called only six of the sixteen salesmen named in the indictment to testify on the content of the sales presentation. Actually the defendant may have been benefited instead of prejudiced that only six of the sixteen salesmen were called to testify against him. Had all the salesmen testified against him he might have been convicted on all 27 counts of the indictment instead of his acquittal on 24 counts.
The District Court admitted the testimony of the company salesmen under Fed.R.Evid. 801(d)(2)(C) or (D) which read in pertinent part as follows:
(d) Statements which are not hearsay. A statement is not hearsay if— ******
(2) Admission by party-opponent. The statement is offered against a party and is (A) his own statement, on either his individual or a representative capacity or (B) a statement of which he has manifested his adoption or belief in its truth, or (C) a statement by a person authorized by him to make a statement concerning the subject, or (D) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship. [Emphasis added.]
The evidence was admitted on condition that the Assistant United States Attorney would establish agency, authorization, or ratification.
We do not believe that the District Court erred in admitting the testimony of the company salesmen or the testimony of the victims as to the content of the sales presentations. See United States v. Krohn, 573 F.2d 1382, 1386 (10th Cir.), cert. denied, 436 U.S. 949, 98 S.Ct. 2857, 56 L.Ed.2d 792 (1978); Fabian v. United States, 358 F.2d 187 (8th Cir.), cert. denied, 385 U.S. 821, 87 S.Ct. 46, 17 L.Ed.2d 58 (1966). The Assistant United States Attorney introduced sufficient evidence of agency, authorization or ratification. For example, Defendant wrote both the original and revised sales brochures which were an integral part of the scheme. The Defendant practiced his sales technique on early investors, then trained his national sales manager, Neiswonger, and joined Neiswonger in designing and implementing a training program for other salesmen. Salesmen testified that they were told to follow the sales presentation given to them and that the presentation was very effective in procuring sales. Neiswonger testified that he was trained by Appellant. Miller, the salesman named in two of the counts upon which Appellant was convicted, testified that he was trained by Neiswonger assisted by Appellant. Miller and the other salesmen were paid commissions for their work for the company.
The evidence indicates that Appellant dominated Rings ’N Things throughout its short lifespan. Appellant received all checks for distributorships from investors, ordered all merchandise from suppliers, hired and frequently fired all important personnel, and, with the exception perhaps of several payroll checks for which a signature stamp was apparently used by Appellant’s personal secretary, Appellant signed all checks drawn on corporate accounts.
There is evidence that Appellant impliedly ratified the acts of his agents. Appellant designed the contract of sale in issue and signed every contract secured by the salesmen. He accepted the purchase price for distributorships with knowledge that he would not be able to fulfill the terms of the contract.
Count five was based upon a sales presentation by salesman Tabor who did not testify at trial. It is not necessary, however, for all of the salesmen named in the indictment to testify if a consistent pattern of sales presentation has been established. The testimony of the victim in count five, Chiostri, established that the sales presentation underlying count five was substantially the same as the other sales presentations presented at trial.
V
Appellant finally argues that he should receive a new trial because one juror brought a newspaper ad concerning Richard Neiswonger into the jury room. The ad characterized Neiswonger as an “expert” in the franchise business and advertised that his services were available. The ad was brought to the attention of the District Court by the prosecution. The District Court promptly polled the jurors on whether they had read the article in question. Three jurors indicated that they had read the ad, eight more indicated that they saw it but had not read it. The District Court instructed the jury to disregard this ad and instructed them that the ad was not evidence.
In considering the effect of such extra-judicial material on the jury the District Court has a large discretion in ruling on the issue of prejudice resulting from the reading by jurors of news articles concerning the trial. Each case must turn on its special facts. Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959); United States v. Rubino, 431 F.2d 284, 288 (6th Cir. 1970), cert. denied, 401 U.S. 910, 91 S.Ct. 872, 27 L.Ed.2d 808 (1971).
The jury had reported that they were deadlocked; the jury returned to the jury room for further deliberations and viewed the advertisement in the jury room. The District Court instructed the jury regarding the use of the ad as hereinbefore described and gave the Allen charge at the request of defense counsel. This was a most unusual request to be made on behalf of defendant. The verdict was returned the following afternoon after three and one half days of deliberation. We do not believe, however, that a new trial is necessary because of the presence of this ad in the jury room. There has been no showing of prejudice flowing from the ad’s presence. The ad concerned only Neiswonger, not Appellant, or Appellant’s counsel. The ad described Neiswonger in complimentary albeit self-serving terms as an “expert” in franchising which could tend to legitimate Appellant’s enterprise in the eyes of the jury. The advertisement does not examine or comment upon the nature of any defenses raised at trial by the defendant, nor does it speculate as to the guilt or innocence of the defendant, or recount facts or proceedings occurring during the trial. At best it is a tangential reference to only one witness, though a noteworthy one, of over seventy witnesses called at trial by the prosecution.
The judgment of the District Court is affirmed.
. For similar though not identical mail fraud proceedings see United States v. Krohn, 573 F.2d 1382 (10th Cir.), cert. denied, 436 U.S. 949, 98 S.Ct. 2857, 56 L.Ed.2d 792 (1978); United States v. Smith, 561 F.2d 8 (6th Cir.) cert. denied, 434 U.S. 958, 98 S.Ct. 487, 54 L.Ed.2d 317 (1977); United States v. Serlin, 538 F.2d 737 (7th Cir. 1976); United States v. Cohen, 516 F.2d 1358 (8th Cir. 1975); Hildebrand v. United States, 506 F.2d 406 (5th Cir.), cert. denied, 421 U.S. 968, 95 S.Ct. 1961, 44 L.Ed.2d 457 (1975); United States v. Uhrig, 443 F.2d 239 (7th Cir.), cert. denied, 404 U.S. 832 (1971); Blachly v. United States, 380 F.2d 665 (5th Cir. 1967); Anderson v. United States, 369 F.2d 11 (8th Cir. 1966), cert. denied, 386 U.S. 976, 87 S.Ct. 1171, 18 L.Ed.2d 136 (1967); Fabian v. United States, 358 F.2d 187 (8th Cir.), cert. denied, 385 U.S. 821, 87 S.Ct. 46, 17 L.Ed.2d 58 (1966); United States v. Thaw, 353 F.2d 581 (4th Cir. 1965).
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
sc_petitioner
|
029
|
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.
ROBBINS v. CALIFORNIA
No. 80-148.
Argued April 27, 1981
Decided July 1, 1981
StewaRt, J., announced the judgment of the Court and delivered an opinion, in which BreNNAN, White, and Marshall, JJ., joined. Burger, C. J., concurred in the judgment. Powell, J., filed an opinion concurring in the judgment, post, p. 429. Blackmun, J., post, p. 436, RehNquist, J., post, p. 437, and Stevens, J., post, p. 444, filed dissenting opinions.
Marshall W. Krause argued the cause for petitioner. With him on the briefs was Joseph G. Baxter.
Ronald E. Niver, Deputy Attorney General of California, argued the cause for respondent. With him on the brief were George Deukmejian, Attorney General, Robert H. Phili-bosian, Chief Assistant Attorney General, Edward P. O’Brien, Assistant Attorney General, and Clifford K. Thompson, Jr., Deputy Attorney General.
Deputy Solicitor General Frey argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General McCree, Acting Assistant Attorney General Keeney, Joshua I. Schwartz, and John Fichter De Pue
Quin Denvir and Steffan Imhoff filed a brief for the State Public Defender of California as amicus curiae urging reversal.
Justice Stewart
announced the judgment of the Court and delivered an opinion, in which Justice Brennan, Justice White, and Justice Marshall joined.
I
On the early morning of January 5, 1975, California Highway Patrol officers stopped the petitioner’s car — a 1966 Chevrolet station wagon — because he had been driving erratically. He got out of his vehicle and walked towards the patrol car. When one of the officers asked him for his driver’s license and the station wagon’s registration, he fumbled with his wallet. When the petitioner opened the car door to get out the registration, the officers smelled marihuana smoke. One of the officers patted down the petitioner, and discovered a vial of liquid. The officer then searched the passenger compartment of the car, and found marihuana as well as equipment for using it.
After putting the petitioner in the patrol car, the officers opened the tailgate of the station wagon, located a handle set flush in the deck, and lifted it up to uncover a recessed luggage compartment. In the compartment were a totebag and two packages wrapped in green opaque plastic. The police unwrapped the packages; each one contained 15 pounds of marihuana.
The petitioner was charged with various drug offenses, his pretrial motion to suppress the evidence found when the packages were unwrapped was denied, and a jury convicted him. In an unpublished opinion, the California Court of Appeal affirmed the judgment in all relevant respects. This Court granted a writ of certiorari, vacated the Court of Appeal’s judgment, and remanded the case for further consideration in light of Arkansas v. Sanders, 442 U. S. 753. 443 U. S. 903. On remand, the Court of Appeal again found the warrantless opening of the packages constitutionally permissible, since the trial court “could reasonably [have] conclude [d] that the contents of the packages could have been inferred from their outward appearance, so that appellant could not have held a reasonable expectation of privacy with respect to the contents.” 103 Cal. App. 3d 34, 40, 162 Cal. Rptr. 780, 783. Because of continuing uncertainty as to whether closed containers found during a lawful warrantless search of an automobile may themselves be searched without a warrant, this Court granted certiorari. 449 U. S. 1109.
II
The Fourth Amendment to the Constitution, which is made applicable to the States through the Fourteenth Amendment, establishes “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” This Court has held that a search is per se unreasonable, and thus violates the Fourth Amendment, if the police making the search have not first secured from a neutral magistrate a warrant that satisfies the terms of the Warrant Clause of the Fourth Amendment. See, e. g., Katz v. United States, 389 U. S. 347, 357; Agnello v. United States, 269 U. S. 20, 33. Although the Court has identified some exceptions to this warrant requirement, the Court has emphasized that these exceptions are “few,” “specifically established,” and “well-delineated.” Katz v. United States, supra, at 357.
Among these exceptions is the so-called “automobile exception.” See Colorado v. Bannister, 449 U. S. 1. In Carroll v. United States, 267 U. S. 132, the Court held that a search warrant is unnecessary “where there is probable cause to search an automobile stopped on the highway; the car is movable, the occupants are alerted, and the car’s contents may never be found again if a warrant must be obtained.” Chambers v. Maroney, 399 U. S. 42, 51. In recent years, we have twice been confronted with the suggestion that this “automobile exception” somehow justifies the warrantless search of a closed container found inside an automobile. Each time, the Court has refused to accept the suggestion.
In United States v. Chadwick, 433 U. S. 1, the Government argued in part that luggage is analogous to motor vehicles for Fourth Amendment purposes, and that the “automobile exception” should thus be extended to encompass closed pieces of luggage. The Court rejected the analogy and insisted that the exception is confined to the special and possibly unique circumstances which were the occasion of its genesis. First, the Court said that “[o]ur treatment of automobiles has been based in part on their inherent mobility, which often makes obtaining a judicial warrant impracticable.” Id., at 12. While both cars and luggage may be “mobile,” luggage itself may be brought and kept under the control of the police.
Second, the Court acknowledged that “inherent mobility” cannot alone justify the automobile exception, since the Court has sometimes approved warrantless searches in which the automobile’s mobility was irrelevant. See Cady v. Dombrowski, 413 U. S. 433, 441-442; South Dakota v. Opperman, 428 U. S. 364, 367. The automobile exception, the Court said, is thus also supported by “the diminished expectation of privacy which surrounds the automobile” and which arises from the facts that a car is used for transportation and not as a residence or a repository of personal effects, that a car’s occupants and contents travel in plain view, and that automobiles are necessarily highly regulated by government. United States v. Chadwick, supra, at 12-13. No such diminished expectation of privacy characterizes luggage; on the contrary, luggage typically is a repository of personal effects, the contents of closed pieces of luggage are hidden from view, and luggage is not generally subject to state regulation.
In Arkansas v. Sanders, 442 U. S. 753, the State of Arkansas argued that the “automobile exception” should be extended to allow the warrantless search of everything found in an automobile during a lawful warrantless search of the vehicle itself. The Court rejected this argument for much the same reason it had rejected the Government’s argument in Chadwick. Pointing out, first, that “[o]nce police have seized a suitcase, as they did here, the extent of its mobility is in no way affected by the place from which it was taken,” the Court said that there generally “is no greater need for war-rantless searches of luggage taken from automobiles than of luggage taken from other places.” 442 U. S., at 763-764. Second, the Court saw no reason to believe that the privacy expectation in a closed piece of luggage taken from a car is necessarily less than the privacy expectation in closed pieces of luggage found elsewhere.
In the present case, the Court once again encounters the argument — made in the Government’s brief as amicus curiae— that the contents of a closed container carried in a vehicle are somehow not fully protected by the Fourth Amendment. But this argument is inconsistent with the Court’s decisions in Chadwick and Sanders. Those cases made clear, if it was not clear before, that a closed piece of luggage found in a lawfully searched car is constitutionally protected to the same extent as are closed pieces of luggage found anywhere else.
The .respondent, however, proposes that the nature of a container may diminish the constitutional protection to which it otherwise would be entitled — that the Fourth Amendment protects only containers commonly used to transport “personal effects.” By personal effects the respondent means property worn on or carried about the person or having some intimate relation to the person. In taking this position, the respondent relies on numerous opinions that have drawn a distinction between pieces of sturdy luggage, like suitcases, and flimsier containers, like cardboard boxes. Compare, e. g., United States v. Benson, 631 F. 2d 1336 (CA8 1980) (leather totebag); United States v. Miller, 608 F. 2d 1089 (CA5 1979) (plastic portfolio); United States v. Presler, 610 F. 2d 1206 (CA4 1979) (briefcase); United States v. Meier, 602 F. 2d 253 (CA10 1979) (backpack); United States v. Johnson, 588 F. 2d 147 (CA5 1979) (duffelbag); United States v. Stevie, 582 F. 2d 1175 (CA8 1978), with United States v. Mannino, 635 F. 2d 110 (CA2 1980) (plastic bag inside paper bag); United States v. Goshorn, 628 F. 2d 697, 699 (CA1 1980) (“([t]wo plastic bags, further in three brown paper bags, further in two clear plastic bags’ ”); United States v. Gooch, 603 F. 2d 122 (CA10 1979) (plastic bag); United States v. Mackey, 626 F. 2d 684 (CA9 1980) (paper bag); United States v. Neumann, 585 F. 2d 355 (CA8 1978) (cardboard box).
The respondent’s argument cannot prevail for at least two reasons. First, it has no basis in the language or meaning of the Fourth Amendment. That Amendment protects people and their effects, and it protects those effects whether they are “personal” or “impersonal.” The contents of Chadwick’s footlocker and Sanders’ suitcase were immune from a warrantless search because they had been placed within a closed, opaque container and because Chadwick and Sanders had thereby reasonably “manifested an expectation that the contents would remain free from public examination.” United States v. Chadwick, supra, at 11. Once placed within such a container, a diary and a dishpan are equally protected by the Fourth Amendment.
Second, even if one wished to import such a distinction into the Fourth Amendment, it is difficult if not impossible to perceive any objective criteria by which that task might be accomplished. What one person may put into a suitcase, another may put into a paper bag. United States v. Ross, 210 U. S. App. D. C. 342, 655 F. 2d 1159 (1981) (en banc). And as the disparate results in the decided cases indicate, no court, no constable, no citizen, can sensibly be asked to distinguish the relative “privacy interests” in a closed suitcase, briefcase, portfolio, duffelbag, or box.
The respondent protests that footnote 13 of the Sanders opinion says that “[n]ot all containers and packages found by police during the course of a search will deserve the full protection of the Fourth Amendment.” 442 U. S., at 764, n. 13. But the exceptions listed in the succeeding sentences of the footnote are the very model of exceptions which prove the rule: “Thus, some containers (for example a kit of burglar tools or a gun case) by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance. Similarly, in some cases the contents of a package will be open to ‘plain view/ thereby obviating the need for a warrant.” Id., at 764-765, n. 13. The second of these exceptions obviously refers to items in a container that is not closed. The first exception is likewise little more than another variation of the “plain view” exception, since, if the distinctive configuration of a container proclaims its contents, the contents cannot fairly be said to have been removed from a searching officer’s view. The same would be true, of course, if the container were transparent, or otherwise clearly revealed its contents. In short, the negative implication of footnote 13 of the Sanders opinion is that, unless the container is such that its contents may be said to be in plain view, those contents are fully protected by the Fourth Amendment.
The California Court of Appeal believed that the packages in the present case fell directly within the second exception described in this footnote, since “[a]ny experienced observer could have inferred from the appearance of the packages that they contained bricks of marijuana.” 103 Cal. App. 3d, at 40, 162 Cal. Rptr., at 783. The only evidence the court cited to support this proposition was the testimony of one of the officers who arrested the petitioner. When asked whether there was anything about “these two plastic wrapped green blocks which attracted your attention,” the officer replied, somewhat obscurely:
“A. I had previous knowledge of transportation of such blocks. Normally contraband is wrapped this way, merely hearsay. I had never seen them before.
“Q. You had heard contraband was packaged this way?
“A. Yes.” Id., at 40, n. 2, 162 Cal. Rptr., at 783, n. 4.
This vague testimony certainly did not establish that marihuana is ordinarily “packaged this way.” Expectations of privacy are established by general social norms, and to fall within the second exception of the footnote in question a container must so clearly announce its contents, whether by its distinctive configuration, its transparency, or otherwise, that its contents are obvious to an observer. If indeed a green plastic wrapping reliably indicates that a package could only contain marihuana, that fact was not shown by the evidence of record in this case.
Although the two bricks of marihuana were discovered during a lawful search of the petitioner’s car, they were inside a closed, opaque container. We reaffirm today that such a container may not be opened without a warrant, even if it is found during the course of the lawful search of an automobile. Since the respondent does not allege the presence of any circumstances that would constitute a valid exception to this general rule, it is clear that the opening of the closed containers without a search warrant violated the Fourth and Fourteenth Amendments. Accordingly, the judgment of the California Court of Appeal is reversed.
It is so ordered.
The Chief Justice concurs in the judgment.
‘■A photograph was made of one of the packages, and it was later described as follows:
“The package visible in the photograph is apparently wrapped or boxed in an opaque material covered by an outer wrapping of transparent, cellophane-type plastic. (The photograph is not in color, and the ‘green’ plastic cannot be seen at all.) Both wrappings are sealed on the outside with at least one strip of opaque tape. As thus wrapped and sealed, the package roughly resembles an oversized, extra-long cigar box with slightly rounded corners and edges. It bears no legend or other written indicia supporting any inference concerning its contents.” 103 Cal. App. 3d 34, 44, 162 Cal. Rptr. 780, 785 (Rattigan, J., dissenting).
As Judge Rattigan wrote in his dissenting opinion in the California Court of Appeal: “For all that I see, it could contain books, stationery, canned goods, or any number of other wholly innocuous items which might be heavy in weight. In fact, it bears a remarkable resemblance to an unlabelled carton of emergency highway flares that I bought from a store shelf and have carried in the trunk of my own automobile.” 103 Cal. App. 3d, at 44, 162 Cal. Rptr., at 785.
In particular, it is not argued that the opening of the packages was incident to a lawful custodial arrest. Cf. Chimel v. California, 395 U. S. 752. See Arkansas v. Sanders, 442 U. S. 753, 764, n. 11. Further, the respondent does not argue that the petitioner consented to the opening of the packages.
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:
|
sc_caseorigin
|
046
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
No. 300.
Brownell, Attorney General, v. Rubinstein.
Argued January 7-8, 1954.
Decided January 11, 1954.
Robert W. Ginnane argued the cause for petitioner. With him on the brief were Acting Solicitor General Stern, Assistant Attorney General Olney, Beatrice Rosenberg and J. F. Bishop. Edward J. Ennis argued the cause for respondent. With him on the brief were Jack Wasserman and Lemuel B. Schofield.
Certiorari, 346 U. S. 870, to the United States Court of Appeals for the District of Columbia Circuit.
Per Curiam:
The judgment is affirmed by an equally divided Court.
Mr. Justice Clark took no part in the consideration or decision of this case.
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
|
songer_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
HUNTER MILLING CO. v. KOCH.
No. 1314.
Circuit Court of Appeals, Tenth Circuit.
March 30, 1936.
Glen A. Wisdom, of Kansas City, Mo. (Austin M. Cowan, C. A. McCorkle, J. D. Fair, W. A. Kahrs, and R. H. Nelson, all of Wichita, Kan., on the brief), for appellant.
George Siefkin, of Wichita, Kan. (Jacob A. Markel and Gertrude F. Markel, both of Pittsburgh, Pa., and Robert C. Foulston, Sidney L. Foulston, Lester L. Morris, George B. Powers, Carl T. Smith, and C. II. Morris, all of Wichita, Kan., on the brief), for appellee.
Before LEWIS and BRATTON, Circuit Judges, and KENNEDY, District Judge.
KENNEDY, District Judge.
This was a suit to recover damages on the part of appellee, plaintiff in the court below, growing out of the cancellation of contracts with the appellant, defendant in the court below, for sale and delivery of flour. The case was tried to a court and jury resulting in a verdict of $12,500 in plaintiff’s favor, upon which judgment was entered, and the defendant appeals.
In 1932 plaintiff and defendant entered into a number of contracts for the sale and delivery of flour, but those contracts dated October 19 and November 14, 1932, are the only ones here directly involved. These contracts provided for the shipment and delivery of the flour according to delivery orders to be given by the plaintiff on or before May 1, 1933. Difficulty arose between the parties as to the manner in which the plaintiff was placing orders for the delivery under the terms of the contracts, resulting in the cancellation of the contracts by the defendant on May 1, 1933; no part of the 10,000 barrels covered by the contracts having been ordered out by the plaintiff at the time the contracts by their terms had expired. The plaintiff thereupon sued the defendant for the alleged damages sustained by virtue of said cancellation alleging as the basis of said claim that the defendant had waived the performance of the contracts as to time of delivery, and specifically pleaded certain letters written by the defendant to the plaintiff as the basis for the alleged waiver dated October 19, 1932, January 21, 1933, March 20, 1933, March 25, 1933, and April 15, 1933, claiming assertion thereby that the plaintiff might have additional time after May 1, 1933, within which to comply with the terms of the contracts by giving orders for the shipment of the flour. The defendant first demurred and, upon the demurrer being overruled, answered, setting out the various transactions between the parties and placing in issue the allegations of the petition concerning any waiver on its part as to the time of delivery under the terms of the contracts. The case thereupon proceeded to trial and the plaintiff introduced the letters set forth in the petition as the evidence of the waiver, at which time a subsequent letter of the defendant to the plaintiff under date of April 22, 1933, was produced by the defendant and by the plaintiff introduced in evidence. The plaintiff as a witness upon the stand, was asked concerning oral conversations with the manager of the defendant company and at first appeared to be somewhat hazy about his recollection as to the times when said conversations took place. The record tends to disclose that at this point the trial court indicated that the plaintiff’s proofs by virtue of. the letters were insufficient to establish waiver on the part of the defendant. Later, and after an intermission in the trial, plaintiff testified to alleged specific telephonic conversations with the manager of the defendant on or about April 24th, after the receipt of defendant’s last letter, by which it was represented that the manager stated that the plaintiff might have up to the first of July, 1933, within which to complete his contracts, and that the calls had been made from Pittsburgh, he paying the tolls himself. To all of this parol testimony or oral evidences of waiver, the defendant objected upon the ground that it purported to vary the contents of written instruments, that the conversations were not within the issues of the case, and that they were irrelevant and incompetent, which objections the court overruled and the defendant reserved exceptions. After the overruling of plaintiff’s objections to the introduction of this testimony, the plaintiff’s manager in defense testified that no such conversations were had. The principal contention urged by the defendant as the basis of error is.the introduction of this oral testimony as to waiver on the part of the defendant.
In 27 R.C.L. pp. 909, 910, the rule concerning waiver well supported by authority is laid down in the following language: “To make out a case of waiver of a legal right there must be a clear, unequivocal, and decisive act» of the party showing such a purpose or acts amounting to an estoppel on his part. A waiver, to be operative, must be supported by an agreement founded on a valuable consideration, or the act relied on as a waiver must be such as to estop a party from insisting on performance of the contract or forfeiture of the condition.”
In the case at bar it is apparent that there was no proof of consideration supporting the waiver contended for by plaintiff, so that reliance must be based upon the acts of the defendant being of such a nature as to estop it from canceling the contracts. An examination of the letters pleaded in the petition as the basis of the alleged waiver, together with the additional letter of April 22d, clearly shows that no waiver amounting to estoppel was established by virtue of these letters. When analyzed, the most that can be said of them is that the defendant was repeatedly calling attention to the failure of the plaintiff to give orders for the flour in amounts which would be reasonably sufficient to complete the contracts before the date of their expiration. The mention of July and August dates in the letters was to emphasize the slowness with which the orders were coming in and that at the rate the plaintiff was ordering it would not he possible to complete the contracts until long after the first of May. In the letter of April 22d specific attention was called to the plaintiff that the contracts would expire on May 1st and that the contracts could not be carried along as had been done on previous contracts without some definite arrangement being made, which with reference to former letters alluded to the payment of carrying charges, and specifically requesting the plaintiff to advise the defendant with reference to the various matters referred to. At no place in these letters is there to be found a specific statement that the plaintiff might have a time after May 1st within which to carry out the terms of the contracts. A case somewhat analogous in facts and circumstances is Kann v. Wausau Abrasives Co., 85 N.H. 41, 153 A. 823, where the court held that the cancellation of a contract must be sustained where the evidences of waiver were similar to those presented by the letters pleaded in plaintiff’s petition. It follows that without the introduction of oral testimony the plaintiff had failed to establish his case as to the waiver, which the trial court clearly indicated and which the plaintiff himself evidently felt, else he would not have resorted to the conversations subsequent to the letters relied upon in the pleading.
This brings prominently to the fore the significance of the admission of the oral testimony as a specific and independent basis for establishing waiver. It is apparent that under these circumstances the defendant must have been surprised and misled as it nowhere appeared in the pleadings that resort would be had to anything other than the written communication relied upon as the evidence of the waiver claimed. It is the plaintiff’s contention that the introduction of the conversations was at most a variance from the pleading and that under the Kansas statute, no showing having been made that the defendant was prejudiced or in what respect he had been misled, that there was no error on the part of the trial court in permitting this evidence to go to the jury. The Kansas statute, known as R. S., 60 — 753, reads as follows: “No variance between the allegations, in a pleading, and the proof is to be deemed material, unless it have actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been misled, and thereupon the court may order the pleading to be amended, upon such terms as may be just.”
There can probably be no dispute that so far as this statute is applicable, it is controlling in the Federal courts. Pope v. Allis, 115 U.S. 363, 6 S.Ct. 69, 29 L.Ed. 393. The question of waiver and likewise the question of variance between pleading and proof both before and after the adoption of this statute, have been closely associated by reason of the fact that waiver has been frequently discussed by the Kansas Supreme Court in connection with variance between pleadings and proofs. As to the matter of pleading waiver when sought to be availed of as a basis of asserted right, the rule in Kansas would seem to have remained static under the decisions of the Kansas courts, in that it is held such pleas must be specific. In Insurance Co. v. Johnson, 47 Kan. 1, 27 P. 100, at page 102, the court uses the following language: “It is uniformly held that a waiver or estoppel must be specially pleaded before evidence to establish the same can be admitted. Under our Code the facts relied upon as a ground of action or defense must be clearly and concisely stated, and a definite issue presented, so that the opposite party may not be taken by surprise upon the trial, but may be fairly notified of what he is required to meet. The new matter introduced in this case was not put in issue by the pleadings, and the company may, as they allege, have been taken by surprise, and wholly unprepared with their proof to contest the new issue. Neither the evidence introduced nor the instructions based thereon are warranted under the pleadings as they exist, and before they can be properly received the reply must be amended.”
In connection with the question of estoppel, in Langston v. Hoyt, 108 Kan. 245, 194 P. 654, at page 657, the court says: “If it was a contract material to the issue, it should have been pleaded, and, if an estoppel, it likewise should have been specially pleaded, and a definite issue presented so that the defendant could have made preparation to meet it. Insurance Co. v. Johnson, 47 Kan. 1, 27 P. 100; Palmer Oil & Gas Co. v. Blodgett, 60 Kan. 712, 57 P. 947. Under the pleadings evidence of the agreement was inadmissible and should have been excluded on defendant’s objection. It may be noted that no motion was made by plaintiff to amend the pleadings so as to conform with the proof of the subsequent contract upon which the judgment was based, and, even if it had been made, its allowance at the end of the trial to conform to proof objected to and not within the issues pleaded would not have been in furtherance of justice.”
In Johnson v. People’s National Bank, 130 Kan. 379, 286 P. 214, at page 216, a comparatively recent case decided in 1930, the court says: “To be available as estoppel, it is settled that acts, representations, and conduct relied on as an estoppel must be specially pleaded. Insurance Co. v. Johnson, 47 Kan. 1, 27 P. 100; Palmer Oil & Gas Co. v. Blodgett, 60 Kan. 712, 57 P. 947; Langston v. Hoyt, 108 Kan. 245, 194 P. 654.”
Decisions in regard to estoppel are pertinent and controlling in view of what has heretofore been said, that a waiver in order to be effective must be founded upon a valuable consideration or must be of such a character as to estop a party, and in the case at bar, there being no evidence of consideration, the plaintiff must necessarily rely upon the doctrine of estoppel to enforce his contention of waiver. Thus it would appear that the rule laid down in Insurance Co. v. Johnson, supra, many years before, is yet adhered to by the Supreme Court, as shown by repeated citations of that case in later decisions. Only in the sense, perhaps, that its strict interpretation may be somewhat relaxed by virtue of the statute on variance, can there be said to have been any change in the rule covering the pleading of waiver by estoppel. One of the cases relied upon by the defendant as indicating that the rule has been changed since the adoption of the statute concerning variance, is Allen v. Gheer, 98 Kan. 228, 158 P. 17, at page 18, where the court says:
“While the cases cited by appellant (Insurance Co. v. Johnson, 47 Kan. 1, 27 P. 100; Insurance Co. v. Thorp, 48 Kan. 239, 28 P. 991; Walker v. Insurance Co., 51 Kan. 725, 33 P. 597; Gillett v. Burlington Insurance Co., 53 Kan. 108, 36 P. 52) all hold that a waiver must be pleaded, yet they were all decided before the promulgation of the new Code. Moreover, the dissenting opinion in Insurance Co. v. Thorp, supra, decided in 1892, clearly foreshadowed the modern tendency,' and the one which, at least with the aid of the new Code, may be now said to have been crystalized into established law. It was there said:
“ ‘Of course, if the question of waiver was a matter of dispute, and the plaintiff relied on the waiver to maintain his action, it must be pleaded before testimony of such waiver can be received over the objections of the company. Insurance Co. v. Johnson, 47 Kan. 1, 27 P. 100. ‘Where no objection is made to the introduction of evidence, no material error is committed by permitting its introduction.’ Grandstaff v. Brown, 23 Kan. 176.’ ”
The language in this case was used in the consideration of the waiver of a default in a contract, and the court observes in the opinion, which is at least a compelling basis for the decision rendered, that no objection was made to the evidence concerning waiver at the time it was offered.
In De Bus v. Life Insurance Co., 115 Kan. 773, 225 P. 91, cited by plaintiff’s counsel, the court considered the variance statute in connection with an alleged waiver of a proof of death in an insurance policy, holding that it was not necessary to plead waiver of proofs of death where there was a specific denial of liability under a policy, which denial in itself constituted a waiver of such proof, and after quoting the variance statute the court stated that the defendant insurance company could not have been misled by the evidence. This is probably the law in insurance cases independent of statute. Other Kansas cases might be reviewed but enough has been indicated from these reports to lead us to the conclusion that it is the law of Kansas as interpreted by the courts, that waiver to be relied upon must be specifically pleaded as to the facts and circumstances constituting that waiver, but that by virtue of the statute, variance between the pleading and proofs shall be deemed material only when it misleads the adverse party to his prejudice in maintaining his defense upon the merits and whether that situation exists is only determinable under the particular facts and circumstances of each individual case.
In the case at bar, we find the defendant coming into court confronted with the allegations of the plaintiff’s pleadings that he relied upon certain correspondence as sustaining the waiver contended for by which the defendant was estopped from asserting its right to cancel the contracts in controversy. With the failure of the pleaded facts to accomplish this result the plaintiff introduced oral testimony of waiver, independent of, distinct from and subsequent to the facts relied upon as constituting waiver alleged in his petition. Manifestly the defendant under these circumstances was misled to his prejudice in maintaining his defense upon the merits of the controversy, and had no adequate opportunity to prepare his defense thereto.
It remains to be considered whether or not there was a compliance with the remainder of the statute in requiring proofs to the court in respect to the fact and manner in which he had been misled. In this respect it is urged that the defendant offered no proofs in compliance with this provision of the statute.. Only the suggestion of the situation in which the defendant then found itself as shown by the record itself was needed to make apparent both the act and manner of misleading. Certainly it would have been a vain and useless thing for the defendant to have offered the pleadings of the plaintiff together with the oral conversations testified to by the plaintiff, as evidence of the manner in which the defendant had been misled. The defendant was left in the situation of being unprepared to meet an issue of independent evidence of waiver not relied upon in plaintiff’s pleading. In equity and good conscience we think that it was thereby placed at a distinct disadvantage and soundly prejudiced in presenting its defense on the merits. Even though a motion had been made attempting to make the pleadings conform to the proof, as stated in the Hoyt Case, supra, its allowance would not have been in furtherance of justice.
In view of what has been stated, other alleged errors need not be considered. It must be held that the trial court erred in admitting the oral conversations in evidence and submitting the case to the jury. The judgment of the trial court will be reversed and the case remanded for a new trial.
It is so ordered.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_casetyp1_7-2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
Earl MANNING, Appellant, v. Margaret E. JONES, Appellee.
No. 17807.
United States Court of Appeals Eighth Circuit.
Aug. 19, 1965.
J. Richard Roberts, of Dearing, Riche-son, Weier & Roberts, Hillsboro, Mo., made argument for appellant and filed brief.
Don B. Sommers, of Gray & Sommers, St. Louis, Mo., made argument for appel-lee and filed brief.
Before VOGEL, RIDGE and MEHAFFY, Circuit Judges.
MEHAFFY, Circuit Judge.
Plaintiff-appellee brought this action for loss of consortium resulting from injuries to her husband allegedly caused by the negligence of the defendant-appellant in rear-ending her husband’s automobile while he was stopped in obedience to a highway stop sign.
Jurisdiction is grounded on diversity of citizenship and the substantive law of Missouri controls. Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
It is conceded that under Missouri law a wife can maintain an action for loss of consortium because of injuries to her husband negligently inflicted by a third party. Shepherd v. Consumers Co-op Ass’n, 384 S.W.2d 635 (Mo.1964); Novak v. Kansas City Transit, Inc., 365 S.W.2d 539 (Mo.1963).
The parties waived a jury and the District Court made findings of fact and conclusions of law forming the basis for entry of judgment favoring plaintiff in the sum of $15,000.00.
The facts are without substantial dispute and. we briefly summarize them. Plaintiff’s husband was en route to work driving in a normal manner, and while stopped for a highway stop sign was struck from the rear by an automobile operated by defendant. The resulting injuries to plaintiff’s husband have left him in a permanently helpless condition by reason of rheumatoid arthritis. At the time of the trial plaintiff was a housewife aged thirty-six. Her husband was forty-two. They were married in 1952 and are the parents of four children. Prior to the accident plaintiff’s husband led a most active physical life. He participated in various sports, including swimming, hiking, fishing and regular “work outs” with his children on a calisthenic apparatus in their back yard. They owned a twenty-one foot trailer and a boat used on family camping trips to Michigan, Canada, Lake Superior and even the West Coast. Plaintiff’s husband did ninety per cent of the driving and all the heavy work connected with this type excursion. After the accident his condition continued to worsen and in 1962 the family moved to Tucson, Arizona so he could enter the Veterans Administration Hospital there. Except when he was an in-patient at the hospital, plaintiff has been unable to leave him for any period of time longer than five hours. By reason of his condition, his life expectancy at trial date was only fifteen years.
Defendant does not challenge plaintiff’s right to recover, the sufficiency of the evidence to support a judgment, or the amount of the award. Rather, the sole issue is based on defendant’s contention that the trial court in its findings of fact did not clearly delineate the items of damage and, therefore, improperly considered items which were not a part of plaintiff’s loss, but instead were elements of her husband’s claim. The trial court made eleven findings of fact but only findings numbered 7 and 9 are pertinent here:
“7) At the time of trial, it was apparent to the Court from observation of Richard Jones and testimony that he is unable to move about unassisted and his every need must be attended to by someone else. According to the evidence, these needs were attended to by his wife. The testimony revealed that the physical condition of Richard Jones prevented his engaging in any gainful employment and complete inability to engage in conjugal relations with his wife or to be of comfort or assistance to her. (R. p. 167) (Emphasis added).
* -x- * -x- * *
“9) At the time of the trial, Richard Jones was forty-one years of age and his wife, the plaintiff, was thirty-six. According to the evidence Richard Jones had a life expectancy of about fifteen years. The evidence further demonstrates that if Richard Jones survives for fifteen years, the plaintiff will have spent fifteen years nursing her invalid husband, leading a life devoid of all normal conjugal relations and otherwise barren of normal living.” (R. p. 168) (Emphasis added)
It is theorized that because the court made reference to plaintiff’s husband’s physical condition which “prevented his engaging in any gainful employment” and which required plaintiff’s attendance to his every need, such findings a fortiori attest the court’s improper consideration of the items of damage. Contrarily, we think such references were necessary to enable the court to properly assess the plaintiff's damages for her loss of consortium. We, therefore, affirm the judgment.
Defendant, as have others, would define consortium by dividing it into (1) material services and (2) sentimental' elements consisting of loss of aid, comfort, companionship, sexual relations, etc. And although such a definition has been characterized as “absurd”, “arbitrary", and “fictitious”, it cannot be gainsaid that a husband’s complete disability preventing his engaging in any work of any nature and requiring constant attention on the part of his wife involves a deprivation of her consortium for which she has an independent right to be compensated in damages.
The Missouri Supreme Court in the Shepherd case, supra, held that a wife’s action was not barred even though her husband’s personal injury action had been settled prior to the recognition of the wife’s cause of action. Also rejected was the argument that allowance of recovery for the wife against the same defendant for her loss sustained “by reason of the same injuries her husband had recovered for” would be granting double compensation. In quoting the pleadings from Bernhardt v. Perry, 276 Mo. 612, 208 S.W. 462, 464,13 A.L.R. 1320 (1918), attention was called to the rights of the wife emanating from her worry and anxiety over her husband’s disability to engage in his usual occupation and for watching over and caring for him. The Shepherd court intimated that this solicitude was a compensable element of the wife’s cause of action for consortium. 384 S.W.2d at 640.
In support of his theory, defendant relies entirely on Novak, supra, asserting that it compels complete delineation of the items of damage. Novak stands for the proposition that the wife is entitled to damages for a separate and distinct personal loss suffered by her. The Missouri court pointed out that the wife is not entitled to any of the same damages the husband has recovered and such a result might readily be avoided by delineating the items properly includible in the husband’s damages and only permitting the wife to recover those losses which are separate and distinct to her. We recognize the subtle distinction raised by defendant but feel that it is misplaced here. The District Court’s reference to plaintiff’s husband’s inability to engage in gainful employment and her compulsory assistance to his every need was not by way of including them as items to be considered in assessing damages, but they were statements attesting plaintiff’s deprivation of all normal wifely activities and confirming the void created by the loss of her husband’s society. If this were a decisive point, we would be constrained to follow the experienced Missouri District Judge on questions of local law, particularly in this instance where he had the benefit of the parties’ briefs in arriving at his judgment. Merrick v. Allstate Insurance Co., 349 F.2d 279 (8th Cir. 1965); Bookwalter v. Phelps, 325 F.2d 186,188 (8th Cir. 1963); S & L Co. of Des Moines v. Wood, 323 F.2d 322, 328 (8th Cir. 1963); Jennings v. McCall Corp., 320 F.2d 64, 70 (8th Cir. 1963).
We think, however, that the dispositive question rests upon an interpretation of the District Court’s findings of fact as required by Rule 52, Fed.R.Civ.P., and not the substantive law of Missouri. Cf. Grenier v. Harley, 250 F.2d 539 (9th Cir. 1957).
Rule 52 precludes the setting aside of findings of fact unless clearly erroneous and we must indulge the presumption of their correctness. United States v. Skolness, 279 F.2d 350 (8th Cir. 1960).
There is nothing in the findings that convinces us that the District Court erroneously included in its conclusion of law number 3 any component of plaintiff’s husband’s claim:
“The court finds that the plaintiff is entitled to recovery in the amount of $15,000.00 of the defendant for loss of consortium caused by the defendant’s negligent injury of her husband.”
The court was speaking of plaintiff’s right of recovery and her loss of consortium, and there is nothing in either the findings, conclusions or judgment to indicate the contrary unless we indulge in a fantastical exercise in semantics. The defendant here has the burden of clearly demonstrating error in the findings. Cedillo v. Standard Oil Co., 291 F.2d 246 (5th Cir. 1961), cert. denied, 368 U.S. 955, 82 S.Ct. 397, 7 L.Ed. 2d 387 (1962); Los Angeles Shipbuilding & Drydock Corp. v. United States, 289 F.2d 222 (9th Cir. 1961). We have held on numerous occasions that the findings of fact by a trial judge sitting without a jury should not be set aside unless it is clearly demonstrated that they are without adequate evidentiary support or induced by an erroneous view of the law. Arkansas Valley Feed Mills v. Fox De Luxe Foods, Inc., 273 F.2d 804 (8th Cir. 1960); Hartford Acc. and Indem. Co. v. Shaw, 273 F.2d 133 (8th Cir. 1959); Western Surety Co. v. Redman Rice Mills, Inc., 271 F.2d 885 (8th Cir. 1959). And we must accept all inferences that tend to support the conclusions of the trial court. Minnesota Amusement Co. v. Lar-kin, 299 F.2d 142, 146 (8th Cir. 1962); City of West Plains v. Loomis, 279 F.2d 564, 567-568, 92. A.L.R.2d 459 (8th Cir. 1960); United States v. Skolness, supra, 279 F.2d at 352-353.
More specifically, a district court’s findings of fact must be liberally construed and found to be in consonance with the judgment if the judgment has support in the record evidence. Blumenthal v. United States, 306 F.2d 16, 17-18 (3rd Cir. 1962); Zimmerman v. Montour R. R., 296 F.2d 97, 98 (3rd Cir. 1961), cert. denied, 369 U.S. 828, 82 S.Ct. 845, 7 L.Ed.2d 793 (1962). This is so even if the findings are not as specific or detailed as might be desired. Travelers Ins. Co. v. Dunn, 228 F.2d 629 (5th Cir. 1956); Carr v. Yokohama Specie Bank, Ltd., 200 F.2d 251, 255 (9th Cir. 1952). See and compare Stone v. Farnell, 239 F.2d 750, 757 (9th Cir. 1956) to the effect that a presumption must be indulged that all proper items were considered in the computation of damages.
If we need indulge a presumption from the findings of fact, we must presume that the trial court considered only damages exclusively within plaintiff’s loss of consortium in arriving at its judgment. In analogous reasoning we have often held that it is presumed on appeal that only competent evidence was considered by the trial court. Freight-ways, Inc. v. Stafford, 217 F.2d 831, 837 (8th Cir. 1955); Grandin Grain & Seed Co. v. United States, 170 F.2d 425 (8th Cir. 1948); Anderson v. Federal Cartridge Corp., 156 F.2d 681 (8th Cir. 1946); Thompson v. Baltimore & O. R. R., 155 F.2d 767 (8th Cir. 1946), cert. denied, 329 U.S. 762, 67 S.Ct. 122, 91 L.Ed. 657 (1946).
Our attention is directed towards a determination of whether the findings are sufficient to provide a basis for decision and whether they are supported by the evidence. Weber v. McKee, 215 F.2d 447 (5th Cir. 1954); Carr v. Yokohama Specie Bank, Ltd., supra; Norwich Union Indem. Co. v. Haas, 179 F.2d 827 (7th Cir. 1950); Shapiro v. Rubens, 166 F.2d 659 (7th Cir. 1948).
In the instant case, the District Court found that plaintiff’s husband’s physical disability resulted in his “complete disability to engage in conjugal relations with his wife or be of comfort or assistance to her” and left her with a life “devoid of all normal conjugal relations and otherwise barren of normal living.” These facts find abundant support in the record evidence and are not in dispute. Certainly they suffice as a basis for the court’s judgment in awarding damages to the plaintiff for the loss of her separate right of consortium growing out of the marriage contract. Defendant’s counsel frankly conceded at oral argument that deprivation of sexual relations alone would suffice to justify the amount awarded. That element of consortium was proven at trial without attempted contradiction.
Since the defendant has not demonstrated any clear error, the judgment is affirmed.
. The record indicates that Richard M. Jones was forty-two at the time of this action. However, the District Court in its finding of fact number 9 found Jones to be forty-one. The discrepancy is inconsequential and is only noted by us.
. One of the leading cases on consortium is Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811, 813 (1950), 23 A.L.R.2d 1366, cert. denied, 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624 (1950). The opinion quotes the following from Lippmann, The Breakdown of Consortium, 30 Colum.L.Rev. 651, 668 n. 13 (1930):
“Redundancy, in common law pleading is familiar to all lawyers. Thus when pleading alleged loss of services, conjugal affection, companionship, etc., no distinct functions were intended. It is the same kind of verbiage that we still use in deeds, wills and pleadings. On this, however, has been postulated an absurd division of consortium into services on the one hand, and conjugal affection, etc., on the other. The cases show that this separation is arbitrary and, in the main, fictitious.”
. The record is silent as to whether plaintiff’s husband here has recovered anything by way of suit or settlement.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
songer_respond1_1_4
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". Your task is to determine what subcategory of business best describes this litigant.
Earl KNUDSEN, Appellant, v. The TORRINGTON COMPANY, Appellee.
No. 128, Docket 24756.
United States Court of Appeals Second Circuit.
Argued Jan. 8, 1958.
Decided April 18, 1958.
Bruce W. Manternach and Lee C. Fiel-den, Hartford, Conn. (Robinson, Robinson & Cole, Hartford, Conn., W. Gregg Kerr, Jr., William Y. Rodewald and Smith, Buchanan, Ingersoll, Rodewald & Eckert, Pittsburgh, Penna. on the brief), for appellant.
Greene & Cook, Torrington, Conn. (John H. Cook, Torrington, Conn., on the brief), for appellee.
Before HINCKS, LUMBARD and WATERMAN, Circuit Judges.
LUMBARD, Circuit Judge.
The sole question on this appeal is whether plaintiff’s complaint was properly dismissed pursuant to Rule 12(b) (6) of the Federal Rules of Civil Procedure, 28 U.S.C.A. for failure to state a claim upon which relief could be granted. Chief Judge Smith of the District Court of Connecticut granted the motion on the ground that the complaint disclosed that the plaintiff was claiming under a sales agency contract assigned to him by a partnership and that such a contract, being personal in nature, terminated on dissolution of the partnership.
Plaintiff alleges that he and two others formed a partnership on November 1, 1943 under the firm name of Industrial Specialties Co. for the purpose of carrying on a general sales, engineering, and industrial expediting business. On December 12, 1945 this firm contracted with the defendant to act as defendant’s sales agent in specified territory and promised to “give * * * as good coverage in (the) Pittsburgh territory as (it) can devote to the sale of special metal parts. * * * ” The contract could be can-celled on 90 days written notice by either party. It is further alleged that the partnership was dissolved on November 30, 1955 and the rights under the partnership vested in the plaintiff. Plaintiff notified defendant of the assignment and demanded that the Torrington Company perform under the terms of the agreement, “particularly as to the payment of commissions earned.” This demand was refused. The amount of commissions due is averred to exceed $3,000.
To this complaint defendant interposed a motion under Rule 12(b) (6), Federal Rules of Civil Procedure, to dismiss for failure to state a claim upon which relief can be granted. In granting this motion Judge Smith noted that Pennsylvania law controlled the operation of the contract and that under Pennsylvania decisions contracts requiring a particular skill or relationship terminate when the skill or relationship no longer exists. Although he conceded that the Pennsylvania courts had never determined whether a sales agency contract with a partnership was personal in nature, he held that the “almost universal” rule was to that effect. Referring to the “good coverage” clause, he also stated:
“The selling ‘coverage’ bargained for obviously depended on the energy and skill of the members of the partnership. Different personnel in the partnership would at least change the quality of the coverage and clearly the efforts of one of the three partners would be materially different. When the other two partners withdrew from the firm, the operation of the contract ceased.”
Accordingly, Judge Smith dismissed the complaint.
We are faced at the outset by the fact that the complaint does not differentiate between commissions on orders placed and filled before the termination of the partnership, on orders placed but not filled prior to dissolution, and orders placed after the assignment of the contract to the plaintiff. To the extent that the partnership had performed under the contract the right to receive compensation was assignable and the defendant was obligated to pay over to the assignee what became due to the partnership. Hoover for Use of Angeletti v. Paterni, 1940, 140 Pa.Super. 211, 13 A.2d 914. This would be so even though the right to commissions did not become absolute until the defendant had delivered merchandise, after dissolution of the partnership, in conformity with the prior order. Hentges v. Wolff, 1953, 240 Minn. 517, 61 N.W.2d 748; Lord v. Wapato Irrigation Co., 1914, 81 Wash. 561, 142 P. 1172. Regardless of whether the duties under the contract were delegable, the plaintiff was entitled to receive commissions for orders obtained by the partnership and subsequently filled. The defendant was free to plead payment or raise other defenses, but it had no right to dismissal of the complaint.
To the extent that the plaintiff sues for commissions allegedly owing on orders procured after the termination of the partnership, a different problem is presented. In its resolution we are mindful that a “ * * * complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.” 2 Moore, Federal Practice 2245 (2d Ed., 1948). See Nag-ler v. Admiral Corp., 2 Cir., 1957, 248 F.2d 319; Dioguardi v. Durning, 2 Cir., 1944, 139 F.2d 774.
In his brief plaintiff asserts that he can prove facts which tend to show that personal performance by all of the partnership partners was not contemplated and hence that the contract was not so personal in nature that it ceased when the original partnership ceased. He states that the original partnership was formed in 1943, that the agency agreement was entered into in 1945, and that when one of the three partners withdrew in 1946 the defendant said nothing. Plaintiff further asserts that of the two remaining partners he was the “brains” of the outfit, that the retiring partner had never had any particular-competence in the field, that in 1945 when the partnership was established plaintiff was the only partner with any financial standing, and that it was he who provided the necessary capital. Other factors he urges upon us are that of the 115 customers at the time the second partner withdrew in 1955 the retiring partner had called on but one, that solicitation had been conducted by a staff of four salesmen who gave “good coverage,” and that any competent group of hired salesmen could have performed the tasks involved. A further consideration is that since the partnership was never indebted in any amount to the defendant, extension of credit is not a factor.
We agree with plaintiff’s conclusion that he should be allowed to go to trial on the issue of whether he could carry on this sales agency contract as the surviving partner, but for different reasons. This contract creates an agency and therefore we think that it is necessarily personal in nature. Duties under a personal contract are delegable, however, if the obligee or principal can be said from all the circumstances to have assented to such delegation.
The personal nature of an agency contract arises as an incident of the legal relationship. An agent may be an independent contractor, not subject to control in the manner in which he performs his duties, but he is an agent nevertheless, and from this agency relation flow certain legal consequences. The fact of the relation implies a promise to use care and skill and imposes fiduciary obligations of loyalty and obedience not normally present in other bilateral agreements. See Commonwealth v. Minds Coal Mining Corp., 1948, 360 Pa. 7, 60 A.2d 14. Because in fact the agency relationship is normally grounded •on the trust and confidence the principal places in his agent, the law has come to impose these personal obligations and duties of the agent and to look upon the relationship as being personal in nature as a matter of law. As a consequence agency duties ordinarily cannot be delegated by the assignment of the contract without the express or implied authority of the principal, see Wetherell Bros. Co. v. United States Steel Co., 1 Cir., 1952, 200 F.2d 761; 4 Corbin, Contracts, § 865 (1951); 10 A.L.R. 653, or by the substitution of another, where the duties involve any personal discretion, skill or judgment. See Brown v. Mt. Holly Nat. Bank, 1927, 288 Pa. 478, 136 A. 773; Restatement, Agency, § 78 (1933).
Since attempts to delegate the duties of a contractual agency have generally arisen in situations where a party has sought, as here, to continue the contract after dissolution of a partnership, the prohibition against delegation has often been phrased in terms of the proposition that the dissolution of a partnership acting as an agent terminates the agency. See Egner v. States Realty Co., 1947, 223 Minn. 305, 26 N.W.2d 464, 170 A.L.R. 500, 512; Meysenburg v. Littlefield, C.C.E.D.Mo., 1905, 135 F. 184; 40 Am.Jur., Partnership, § 267. But we cannot agree that this proposition of law should govern all cases, and we are of the opinion that it should not control here.
It is one thing to say that an agency contract is personal in nature and that agency duties ordinarily cannot be delegated even to a competent substitute without the express or implied authority of the principal. It is another thing to say that the withdrawal of a partner terminates all partnership agency contracts. The latter proposition depends on the view that withdrawal of a partner dissolves the partnership and that therefore any organization resulting from the dissolution is as much a stranger to the principal as an organization completely unrelated to the prior partnership. We think such a conclusion unwarranted and unrealistic. Indeed, courts which have held that dissolution terminates the agency have generally done so only after a careful development and analysis of the facts which indicated that the assignee was in fact substantially different from the prior agent. See e. g. Egner v. States Realty Co., supra; Paige v. Faure, 1920, 229 N.Y. 114, 127 N.E. 898, 10 A.L.R. 649.
Delegation of duties is proper if the principal authorizes, expressly or by implication, the performance by another. Thus there is an implied authorization to delegate ministerial duties or those generally understood to be dele-gable by custom. See Restatement, Agency, §§ 78, 79 (1933). We believe there is an implied authority arising from the contract to delegate duties when the delegation results from changes in the form of the business organization or in personnel who make up that organization and the changes do not tend to defeat the considerations which the principal had in mind in selecting this agent. Cf. Wetherell Bros. Co. v. United States Steel Co., supra; Carlock v. La Salle Extension University, 7 Cir., 1950, 185 F.2d 594.
If a principal contracts with a corporation, he contemplates a changing personnel. It is equally apparent that partnership personnel will not remain static. If the person or persons ■whom it was understood would be the dominant members of the firm and on whom the principal would rely choose to continue the enterprise, it is immaterial that the prior agency was organized as a partnership rather than in corporate form and that the partnership has dissolved. Cf. Walker v. Mason, 1922, 272 Pa. 315, 116 A. 305. To determine whether or not there was an implied authority the determinative question is not whether the contract is generally assignable. Rather, the court must view both the considerations underlying the appointment of the assignor and the nature of the assignee to determine whether the surviving organization is such a change from the assignor as to be beyond the contemplation of the principal in making the original appointment. We think that a factual determination is required by Pennsylvania law, as the courts have indicated a willingness to allow delegation freely, see e. g. In re Stormer’s Estate, 1956, 385 Pa. 382, 123 A.2d 627. Furthermore, such determination is consonant with commercial reality. Even though the agency contract is personal in nature, in a survivorship situation the survivor may show that the principal is getting substantially what he bargained for.
For these reasons the plaintiff was entitled to trial of the issue of delegation of the contract duties to him, as well as the opportunity to prove what might be due as past commissions. It was error to dismiss the complaint.
Reversed.
. In re Stormer’s Estate, 1956, 385 Pa. 382, 123 A.2d 627; In re Book’s Estate, 1929, 297 Pa. 543, 147 A. 608; Young v. Gongaware, 1922, 275 Pa. 285, 119 A. 271; Walker v. Mason, 1922, 272 Pa. 315, 116 A. 305.
. Cf. Denton v. Brocksmith, 5 Cir., 1924, 299 F. 559.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant?
A. auto
B. chemical
C. drug
D. food processing
E. oil refining
F. textile
G. electronic
H. alcohol or tobacco
I. other
J. unclear
Answer:
|
songer_numappel
|
3
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
FORREST CITY MACHINE WORKS, INC.; Mallard Farms Holding Co., Inc.; David A. Hodges, Appellants, v. UNITED STATES of America, Appellee.
No. 91-1746.
United States Court of Appeals, Eighth Circuit.
Submitted Nov. 12, 1991.
Decided Jan. 6, 1992.
David A. Hodges, Little Rock, Ark., for appellants.
Richard M. Pence, Little Rock, Ark., for appellee.
Before BOWMAN and BEAM, Circuit Judges, and VAN SICKLE, District Judge.
The Honorable Bruce M. Van Sickle, Senior United States District Judge for the District of North Dakota, sitting by designation.
BOWMAN, Circuit Judge.
Forrest City Machine Works, Mallard Farms, and David A. Hodges (“appellants”) appeal from the order of the District Court dismissing their complaint for lack of subject-matter jurisdiction. We affirm.
In 1988, Twin City Bank of Arkansas brought a civil suit (“Twin City case”) to recover on the United States Commerce Department’s guaranty of a loan made by the bank to Forrest City Machine Works. Madeleine Austin, an attorney in the Commerce Department’s Office of the General Counsel, was assigned to work on the case on behalf of the Commerce Department. As the Commerce Department’s attorney, she filed the answer to Twin City’s complaint. Accompanying the answer was a counterclaim against the Bank and a third-party complaint against, inter alia, the appellants in this case. The third-party complaint alleged that the appellants had breached a contract and committed fraud. In 1990, the appellants filed a state court complaint against Austin, alleging that her filing of the third-party complaint constituted malicious prosecution and abuse of process. The appellants based this allegation in part on their assertion that the fraud count of the third-party complaint was dismissed after Austin left the employ of the Commerce Department.
The United States moved to remove this case to federal court and moved that the United States be substituted as defendant, replacing Austin. This action was requested pursuant to 28 U.S.C. § 2679(d)(2) (1988), which states that “[u]pon certification ... that the defendant employee was acting within the scope of [her] employment at the time of the incident ... any civil action ... commenced ... in a State court shall be removed ... to the district court of the United States.... [T]he United States shall be substituted as the party defendant.” The United States provided such certification by way of a certificate filed by the United States Attorney for the Eastern District of Arkansas. The District Court accepted the certification, granted removal from the state court, and substituted the United States for Austin as the defendant. Shortly thereafter the United States filed a motion to dismiss the complaint for lack of subject-matter jurisdiction. On March 25, 1991, after determining that Austin was acting within the scope of her employment in filing the third-party complaint against the appellants in the Twin City case, the District Court entered an order of dismissal. The District Court held that the Federal Tort Claims Act (“FTCA”), as amended in 1988 by the Federal Employees Liability Reform and Tort Compensation Act (“Liability Reform Act”), precluded recovery on a malicious prosecution or abuse of process claim against either a federal employee acting within the scope of her employment or the United States.
Although the appellants raise a number of issues on appeal, the dispositive issue is whether the District Court erred in determining that Austin was acting within the scope of her employment when she filed the third-party complaint in the Twin City case. If she was acting within the scope of her employment, then this complaint was rightly dismissed because of a lack of subject-matter jurisdiction. This is so because if Austin was acting within the scope of her employment, the United States must be substituted as the defendant. 28 U.S.C. § 2679(d)(2). But the United States is subject to suit only if it waives its sovereign immunity. The FTCA is such a waiver, but it is a limited one and it exempts from its waiver of sovereign immunity, inter alia, claims of malicious prosecution or abuse of process. 28 U.S.C. § 2680(h) (1988). Thus, the United States cannot be sued for claims of malicious prosecution or abuse of process. Similarly, a government employee acting within the scope of her employment cannot be sued on such claims. 28 U.S.C. § 2679(b)(1) (1988). “[Because the FTCA is an exclusive remedy for torts committed by federal employees acting within the scope of their employment, if recovery is not available against the United States under § 2680, it is not available at all.” Brown v. Armstrong, 949 F.2d 1007, 1013 (8th Cir.1991); see also Smith v. United States, — U.S. -, 111 S.Ct. 1180, 1184-85, 113 L.Ed.2d 134 (1991) (the Liability Reform Act “immunizes Government employees from suit even when an FTCA exception precludes recovery against the Government”).
Thus, the appellants’ claim is viable only if Austin was not acting within the scope of her employment when she filed the third-party action on behalf of the Commerce Department in the Twin City case. If she was not, then substitution of the United States as defendant was not proper, and Austin should be reinstated as the defendant. Section 2679(d)(2) states that when the United States certifies that the employee was acting within the scope of her employment, substitution shall occur. Section 2679(d)(2) states that this certification “shall conclusively establish scope of ... employment for purposes of removal,” but we have interpreted the section to require “at least limited judicial review of the ... scope-of-employment certification before substituting the United States as defendant.” Brown, 949 F.2d at 1011 (footnote omitted).
Here the District Court undertook such a review before substituting the United States as a defendant. After discussing various exhibits introduced by the United States, the District Court stated that it “finds, after its independent review of the record, that Madeleine Austin was, in fact, acting within the scope of her federal employment when she filed the answer and third-party complaint_” Order of Dismissal at 7, reprinted in Appellants’ Addendum 1, 7. The appellants claim that their requests for discovery should have been allowed béfore such a review was made. “[W]e need not address in this case the potentially difficult issues of whether the certification is entitled to deference when the [appellants] come forward with contrary evidence and, if so, whether [appellants] must be permitted to probe the basis for the certification in discovery,” Brown, 949 F.2d 1007, 1012 n. 9, because here the appellants have not come forward with any evidence contradicting the government’s scope-of-employment certification and supporting exhibits. Further, the discovery requested by the appellants does not relate to the scope-of-employment question, but rather to the government’s basis for the third-party complaint in the Twin City case. Accordingly, the District Court did not err in dismissing this case without permitting the appellants to proceed with their discovery requests.
We conclude that the District Court correctly determined that Austin was acting within the scope of her federal employment when in the Twin City case she filed the third-party complaint for the Commerce Department against the appellants. At the time the complaint was filed, Austin was a Commerce Department attorney assigned to work on the Twin City case. The third-party complaint accompanied the government’s answer and counter-claim in the Twin City case. In filing those pleadings Austin clearly was acting “for [her] employer’s benefit or [in furtherance of her] employer's interest.” Piper v. United States, 887 F.2d 861, 863 (8th Cir.1989). The exhibits filed by the government fully support the scope-of-employment determination, and the appellants have offered nothing to call the District Court’s determination into doubt. “[T]he ... certification, although subject to judicial review, is prima facie evidence that the employee's challenged conduct was within the scope of employ. Therefore ... the [appellants] ... must come forward with specific facts rebutting the government’s scope-of-employment certification.” Brown, 949 F.2d 1007, 1012. The appellants have failed to carry their burden, and the District Court’s determination that the action by Austin of which the appellants complain was within the scope of her employment must be sustained.
The order of the District Court is affirmed.
. The Honorable G. Thomas Eisele, Senior United States District Judge for the Eastern District of Arkansas.
. "The [United States] Attorneys are authorized to make the certification! ] provided for in ... 28 U.S.C. 2679(d) ... with respect to civil actions ... brought against Federal employees in their respective districts.” 28 CFR § 15.3(a) (1991).
. We note that if substitution was proper, the District Court lacks subject-matter jurisdiction over this claim for an additional reason. 28 U.S.C. § 2675(a) (1988) states that an action against the United States “shall not be instituted ... unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency....” The appellants acknowledge that they did not submit the required administrative claim before filing this suit. Thus, the District Court lacks subject-matter jurisdiction over this claim for this reason. Sanders v. United States, 760 F.2d 869, 872 (8th Cir.1985). However, a dismissal on this ground might have the effect of simply prolonging the inevitable. If the appellants were allowed to submit such a claim, they eventually would return to this court in the same position as they are now, and again would have their claim dismissed for lack of subject-matter jurisdiction. In the interest of judicial economy, our affirmance of the dismissal due to a lack of subject-matter jurisdiction is based not upon this procedural defect but upon the immunity accorded Austin and the United States by the FTCA and the Liability Reform Act.
. As there is no factual dispute, we treat this issue as a question of law and review the District Court's determination de novo. See Arbour v. Jenkins, 903 F.2d 416, 422 (6th Cir.1990); Washington v. United States, 868 F.2d 332, 334 (9th Cir.), cert. denied, 493 U.S. 992, 110 S.Ct. 539, 107 L.Ed.2d 536 (1989); Nietert v. Overby, 816 F.2d 1464, 1466 (10th Cir.1987); Hoston v. Silbert, 681 F.2d 876, 879 (D.C.Cir.1982) (per curiam); cf. S.J. & W. Ranch, Inc. v. Lehtinen, 913 F.2d 1538, 1542 (11th Cir.1990) (issue is mixed question of law and fact), modified, 924 F.2d 1555 (11th Cir.) (per curiam), cert. denied, — U.S. -, 112 S.Ct. 62, 116 L.Ed.2d 37 (1991); Cronin v. Hertz Corp., 818 F.2d 1064, 1069 (2nd Cir.1987) (issue is mixed question of law and fact).
. The issue of scope of employment is controlled by the "applicable state law of responde-at superior." Piper v. United States, 887 F.2d 861, 863 (8th Cir.1989) (noting applicable Arkansas respondeat superior law). The appellants do not contend that the District Court failed to apply or misconstrued the governing state law.
Question: What is the total number of appellants in the case? 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
CUSHING et al. v. MARYLAND CAS. CO. et al.
No. 13887.
United States Court of Appeals Fifth Circuit.
July 31, 1952.
Rehearing Denied Oct. 9, 1952.
See 198 F.2d 1021.
James J. Morrison, Arthur A. de la Hous-saye, Raymond H. Kierr, Gerard A. Rault, New Orleans, La., for appellants.
Eberhard P. Deutsch, Brunswick G. Deutsch, New Orleans, La., for appellees.
Before HOLMES, STRUM, and RIVES, Circuit Judges-
STRUM, Circuit Judge.
This appeal is from a summary judgment dismissing, as to the insurers involved, five consolidated actions at law brought to recover damages for the death of five seamen who drowned when the tug boat “Jane Smith” collided with a ¡bridge, capsized and sank in navigable waters within the admiralty jurisdiction in Louisiana. Federal jurisdiction is asserted both under Sec. 33 of the Merchant Marine (Jones) Act of 1920, 46 U.S.C.A. § 688, and upon diversity of citizenship.
The suits are against Texas & Pacific Railway Company, owner of the bridge, and Maryland Casualty Company and Home Insurance Company, who are the liability insurance underwriters of the owner and charterer of the tug, insuring against loss of life by, or personal injury to, the crew of said vessel. The complaints allege that the deaths were due to the negligence of the bridge owner, and of the owner and •charterer of the tug.
Plaintiffs assert the right to directly sue the insurers under Louisiana’s “direct action” statute, Title 22, Sec. 655, La.Rev.Stat. 1950, LSA-R.S. 22:655, which provides in part: “The injured person or his or her heirs, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy, * * * and said action may be brought against the insurer alone or against both the insured and the insurer, jointly * * The policies involved were issued and delivered in Louisiana.
The dominant question is whether or not the statute applies to policies which protect the owner and charterer of a vessel against liability for personal injuries or accidental death suffered by the crew of a vessel in navigable waters. The district judge answered the question negatively. He was of the view that Sec. 655, supra, which relates to “liability” insurance, is confined to the ordinary type of liability insurance as defined in Title 22, Sec. 6(4), La.Rev. Stat.1950, LSA-R.S. 22:6(4), and does not extend to “Marine protection and indemnity insurance,” as defined in subd. (13) (e) of that title, which is the type of policy here sued upon. He was further of the view that to give effect to the direct action statute as to these policies would be an invasion of the field of exclusive federal jurisdiction over admiralty and maritime matters which would not only impair the characteristic features of general maritime law, but would contravene the essential purpose of limitation of liability proceedings in admiralty, under 46 U.S.C.A. § 183, which have ¡been instituted by this owner and charterer, and in which these plaintiffs have filed claims. As one of the policies also provides hull insurance, the district judge was further of the view that to the extent of plaintiffs’ recovery in the limitation proceedings, the owner would be compelled to surrender insurance money to the claimants therein, contrary to the rule established in Norwich & N.Y. Transp. Co. v. Wright, 13 Wall. 104, 80 U.S. 104, 20 L.Ed. 585, and in City of Norwich, 118 U.S. 468, 6 S.Ct. 1150, 30 L.Ed. 134, that an owner’s liability is confined to the value of the vessel after the damage, not before, and that insurance money belongs to- the owner, not to the claimants.
It appears to us that in enacting Sec. 655, supra, the Louisiana legislature used the term “liability insurance,” in its broad generic sense, meaning that form of insurance by which an insured is indemnified against liability on account of bodily injuries sustained by others. The statute is not limited to the one type of liability insurance defined in Sec. 6(4), Title 22, supra, but extends as well to marine liability insurance of the type here involved. The statute is remedial. It should be liberally construed to accomplish its obvious purpose, which is to- afford an injured person a direct action against a compensated insurer who has assumed ultimate liability. There is no- indication in Sec. 655 that the Louisiana legislature intended to deny the right of direct action to persons covered by marine policies, while extending it to all others. On the contrary, it appears to us that it was intended, so far as the state legislative powers are effective, to extend the right to all persons covered by what is broadly known as “liability insurance,” including policies of the type here in question. While the policies sued on cover marine activities, fundamentally they are ordinary contracts of indemnity insurance.
Title 28 U.S.C.A. § 1333, a part of the original Judiciary Act of 1789, provides that United States district courts shall have original jurisdiction, exclusive of the courts of the states, of any civil case of admiralty or maritime jurisdiction, “saving to suitors in all cases all other remedies to which they are otherwise entitled.” Applying this clause in upholding the validity of the New York Arbitration statute as applied to a dispute under a charter party made and to be performed in that state, the United States Supreme Court said; “The ‘right of a common-law remedy,’ so saved to suitors, does not * * * include attempted changes 'by the states in the substantive admiralty law, but it does include all means other than proceedings in admiralty which may be employed to enforce the right or to redress the injury involved. * * * A state may not provide a remedy in rem for any cause of action within the admiralty jurisdiction. * * * But otherwise, the state, having concurrent jurisdiction, is free to adopt such remedies, and to attach to them such incidents, as it sees fit. * * * In no case has this court held void a state statute which neither modified the substantive maritime law, nor dealt with the remedies enforceable in admiralty.” Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109, 123, 44 S.Ct. 274, 277, 68 L.Ed. 582, 586. These principles are determinative here.
While Sec. 655, supra, confers upon an injured party a substantive right which becomes vested at the moment of the injury, it is not a right essentially maritime in character, nor one peculiar to admiralty or maritime jurisdiction, but is one which applies alike to all contracts of public liability insurance, regardless of whether the injury occurs ashore or afloat. There is nothing in it which undertakes to change the substantive admiralty law, nor does it undertake to deal with a remedy in courts of admiralty. The statute provides only an additional and cumulative remedy at law in the enforcement of obligations of indemnity voluntarily and lawfully .assumed ¡by the insurer. Thus the statute does not conflict with any feature of substantive admiralty law, nor with any remedy peculiar to admiralty jurisdiction. These suits are at law, not in admiralty.
Appellees, the insurers, further contend that the Jones Act, 46 U.S.C.A. § 688, creates a right of action against an injured seaman’s employer, but not against the employer’s liability underwriter, and that the State of Louisiana can not add to the rights created by the Jones Act. It is unnecessary, however, to determine that question. Even if there were no jurisdiction, nor any right of action, under the Jones Act, which we do not decide, diversity of citizenship exists between all plaintiffs and the defendant insurers, and more than $3,000.00 is involved in each suit. These circumstances support federal jurisdiction. The complaints contain averments which sufficiently assert liability upon general principles of negligence, and also for accidental death within tlie coverage of the policies sued upon, so that a cause of action is stated.
Appellees’ contentions over-mflate a relatively simple proposition with apparent, but unreal, technical problems. Stripped of illusory technicalities, the Louisiana statute merely creates in favor of one who has been wrongfully injured, an additional and cumulative remedy at law against an insurer who has agreed to indemnify the tort-feasor against liability, by subrogating the injured person to all the rights of the insured within the terms and limits of the policy. Other existing remedies are not in the least impaired or affected. New Amsterdam Cas. Co. v. Soileau, 5 Cir., 167 F.2d 767, 6 A.L.R.2d 128. Such contracts of insurance are for the benefit of the public, as well as of the insured employer. Davies v. Consolidated Underwriters, 199 La. 459, 6 So.2d 351; West v. Monroe Bakery, Inc., 217 La. 189, .46 So.2d 122. The statute is simply a regulation by the state of insurance companies doing business within its boundaries, for which there is ample sanction in federal law. 15 U.S. C.A. §§ 1011, 1012, the McCarran Act. The limitation of liability statutes, 46 U.S. C.A. § 183 et seq., relate, not to “the business of insurance” as mentioned in the McCarran Act, but to the liability of shipowners. The object of that proceeding is to limit the liability of the owner, not to preclude injured persons from pursuing any remedy open to them against others. To permit such an action will not defeat the purpose of the federal limitation of liability statute, nor will it interfere with the harmony or uniformity of admiralty law in its international or interstate relations. That the remedy may not exist in states other than Louisiana is not a tenable objection. The same was true in Red Cross Line v. Atlantic Fruit Co., supra, involving the New York Arbitration statute.
The Louisiana statute is wholly a regulation of the liability of insurers doing business in Louisiana upon obligations voluntarily assumed by them there. We see no reason why it should not be applied to liability policies such as those here sued upon, even though the injuries were suffered upon navigable waters. Federal jurisdiction exists, and the complaints state a cause of action.
Reversed and remanded.
. The district judge said [99 F.Supp. 683]: “If these plaintiffs should be paid any part of their claims in the limitation proceedings, then the shipowner under his contracts of insurance has a right to bo reimbursed by his underwriters. If the underwriters’ exposure on the policies is exhausted in paying the claims in this case, then the shipowner’s right against his insurers will avail him nothing.
“The effect therefore of allowing these plaintiffs to proceed directly against the shipowner’s insurers -would be to force the owner to turn his insurance into the limitation proceeding as part of ‘the interest of such owner in such vessel’. This the owner is not required to do. City of Norwich, 118 U.S. 468, 6 S.Ct. 1150, 30 L.Ed. 134.”
. Gager v. Teche Transf. Co., La.App., 143 So. 62; Hudson v. Georgia Cas. Co., D.C., 57 F.2d 757.
. See also Western Fuel Co. v. Garcia, 257 U.S. 233, 42 S.Ct. 89, 66 L.Ed. 210, and Great Lakes D. & D. Co. v. Kierejewski, 261 U.S. 479, 43 S.Ct. 418, 67 L.Ed. 756, holding that although admiralty affords no relief for wrongful death under general maritime lawr, an action in personam, may be maintained in admiralty under a state “wrongful death” statute to recover for a death upon navigable waters as a result of a maritime tort. (Statutory remedies for personal injures or death suffered by a seaman, or for wrongful death on the high seas, are now provided by 46 U.S.C.A. §§ 688, 761). Also, see Jarka Corp. v. Hellenic Lines, 2 Cir., 182 F.2d 916, 919, holding general New York law applicable to a stevedoring contract, which is a maritime contract. What was said as to “uniformity” in Southern Pac. Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086, has. been sharply limited by Standard Dredging Corp. v. Murphy, 319 U.S. 306, 63 S.Ct. 1087, 87 L.Ed. 1416.
. Fisher v. Home Indemnity Co., 5 Cir., 198 F.2d 218; New Amsterdam Cas. Co. v. Soileau, 5 Cir., 167 F.2d 767, 6 A.L.R. 2d 128; Belanger v. Great American Indemn. Co., D.C.La., 89 F.Supp. 736; West v. Monroe Bakery, Inc., 217 La. 189, 46 So.2d 122.
. “Congress declares that the continued regulation * * * by the several States of the business of insurance is in tb© public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation * * * of such business by the several states.” 15 U.S.C.A. § 1011. “No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance * * * unless such Act specifically relates to the business of insurance”. 15 U. S.C.A. § 1012(b).
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_r_fiduc
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
ATKINS v. MEACHAM.
No. 4050.
Circuit Court of Appeals, Fourth Circuit.
Oct. 6, 1936.
C. H. Dearman, of Statesville, N. C., for appellant.
A. B. Raymer, of Statesville, N. C. (D. L. Raymer and Raymer & Raymer, all of Statesville, N. C., on the brief), for appellee.
Before PARKER and NORTHCOTT, Circuit Judges, and MYERS, District Judge.
NORTHCOTT, Circuit Judge.
This is an action at law instituted by the appellant, herein referred to as the plaintiff, against the appellee, herein referred to as the defendant, in the District Court of the United States for the Western District of North Carolina, in March, 1935. The object of this action was to recover an assessment made by the Comptroller of the Currency against the defendant as the owner of ten shares of stock of the First National Bank of Statesville, N. C., an insolvent bank of which the plaintiff was receiver. The bank was declared insolvent and ceased business in January, 1933. The amount of the assessment was $1,000.
The defendant filed an answer admitting that the certificate for ten shares of stock in said bank was issued in her name in January, 1932, and so appeared upon the books of the bank but denied in her answer that she owned the stock claiming that she held said certificate as executrix of the will of her husband, F. T. Meacham, who owned the stock at the time of his death in May, 1930. ‘
A trial was had before a jury in January, 1936, at Statesville. At the end of the testimony both the plaintiff and the defendant moved for a directed verdict. The court granted the motion of the defendant and under the instruction the jury found for the defendant. An order was entered in accordance with the verdict. From this action this appeal was brought.
Fifteen shares of stock in the closed bank were owned by the defendant’s husband at the time of his death. The pertinent part of the deceased’s will read as follows :
“To my wife if she survives, I will and bequeath all of my personal property, and real estate, except herein stated.
“It is my desire to have her retain the Bank Stock, intact, and use the proceeds thereof for living expenses, and at her death the Stocks to be divided equally amongst the Surviving children and their Heirs.”
The defendant qualified as executrix of her husband’s will' in May, 1930, and was still acting in that capacity at the time of the bringing of this action.
The estate was indebted to one of the daughters of the defendant, and wishing to pay the debt with some of the bank stock, the defendant took the certificate for the fifteen shares to the bank and received in exchange one certificate for three shares, issued in the name of the daughter, and another certificate for the remaining twelve shares issued in the name of the defendant. The defendant testified at the trial that the cashier of the bank advised her that it was all right to conduct the transaction in this way and that she did not examine the certificate for the twelve shares and did not find out that it was in her name until January, 1932, when she went back to consult the cashier about having two of the remaining twelve' shares transferred to another daughter. The stock was again reissued, the defendant receiving another certificate for ten shares in her name. The defendant signed individually the receipt stubs of the certificates for the twelve and ten shares and received the dividends on the stock that stood in her name.
The defendant also testified that she protested to the cashier of the bank that the stock was hert husband’s and not hers and tried to get the certificate changed, but was unable to do so. The cashier of the bank" testified that he did not recall that the defendant requested him to change the certificate of stock from her name back to her husband’s estate, and that he would have been glad to have done so had she requested it.
• The only question involved in this appeal is whether the defendant is personally liable as a stockholder for the assessment on the ten shares of stock that stood in her name. We think she is.
The stock was entered on the books of the bank in the name of the defendant and whatever may be claimed, with respect to the certificate for the twelve shares of stock, the defendant admittedly knew that the certificate for the ten shares was issued to her personally and it was on this ten shares that the assessment sued for was made. A person in whose name stock stands on the books of a bank and who knows this fact is liable to an assessment, and becomes estopped to deny that he is a stockholder. Forrest v. Jack, 294 U.S. 158, 55 S.Ct. 370, 79 L.Ed. 829, 96 A.L.R. 1457; Matteson v. Dent, 176 U.S. 521, 20 S.Ct. 419, 44 L.Ed. 571; Richmond v. Irons, 121 U.S. 27, 7 S.Ct. 788, 30 L.Ed. 864; Whitney v. Butler, 118 U.S. 655, 7 S.Ct. 61, 30 L. Ed. 266; Kenyon v. Fowler (C.C.A.) 155 F. 107; Schlener v. Davis (C.C.A.) 75 F.(2d) 371, 99 A.L.R. 498.
The defendant inherited a life interest in the stock in question, under the terms of her husband’s will, and enjoyed the dividends declared on it. She exercised the right of ownership in disposing of some of the stock. She signed the receipt for the certificate for the ten shares in her own name and not as executrix.
The defendant need not have accepted the certificate issued to her’ individually and could undoubtedly have had it changed had she not, at least tacitly, consented to the arrangement as it was made. By her admitted conduct she ratified the acts done by the cashier of the bank in issuing the two certificates of stock in her name.
“It (a ratification) implies a conscious and intended approval of the act done. It rests upon the actual and existing purpose to make such approval. Hence, the courts say, that it must occur with full knowledge of all the facts.” Williams v. Vreeland (C.C.A.) 244 F. 346, 350, affirmed in 250 U.S. 295, 39 S.Ct. 438, 63 L.Ed. 989, 3 A.L.R. 1038.
A serious question is presented as to^ whether the defendant was not liable for the assessment as the owner of the life interest in the stock. The beneficial ownership of the stock had passed from her husband’s estate, and the estate could not be made liable for the assessment. Blackmore v. Woodward et al. (C.C.A.) 71 F. 321. See, also, Braver Liquidation of Financial Institutions, § 269, p. 294, where the author says: “Where a husband bequeaths bank stock to his wife for life, and the stock is transferred to her by the Executors of the estate, and is held by her as such life tenant, she is individually liable in the amount equal to the face value of the stock, in a suit brought by the receiver of an insolvent bank, for the benefit of the creditors, but the testator’s estate is not liable. However, this is true only when the stock was transferred to her own name on the books of the bank, in which event, the widow, although a life tenant, would be liable for the double liability assessment on the stock, as this act of transfer led creditors of the bank to rely on her being a stockholder, and, in addition, it indicated a purpose on her part to take such stock as her own.”
Here the stock was transferred to the defendant on the books of the bank, and her acceptance of the certificate as it was issued charges her with knowledge of that fact.
A study of the evidence, giving full faith and credit to the defendant’s own testimony, leads us to the conclusion that the trial judge was in error in instructing the jury to find for the defendant, but should have instructed for the plaintiff. The judgment is reversed, and the cause remanded.
Reversed.
Question: What is the total number of respondents in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
songer_counsel1
|
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 appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America, Appellee, v. Theobald DWORSHAK, Appellant.
No. 74-1872.
United States Court of Appeals, Eighth Circuit.
Submitted March 11, 1975.
Decided April 29, 1975.
Dick DeGuerin, Houston, Tex., for appellant.
David L. Peterson, Asst. U. S. Atty., Bismarck, N. D., for appellee.
Before VAN OOSTERHOUT, Senior Circuit Judge, ROSS, Circuit Judge, and TALBOT SMITH, Senior District Judge.
TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.
TALBOT SMITH, Senior District Judge.
Theobald Dworshak appeals from his conviction after a jury trial of two counts of concealing assets from his trustee in bankruptcy in violation of 18 U.S.C. § 152. The principal defense, rejected by the jury, was that the defendant was insane at the time of the offense. Defendant now asserts as his sole contention on appeal that the trial court erred in failing to conduct, sua sponte, an evidentiary hearing to determine his competence to stand trial. We reject this argument and affirm the conviction.
The claim is based on Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), which held that due process requires the observance of procedures adequate to protect the right of a defendant not to be tried or convicted while incompetent to stand trial. Thus under Robinson “a trial court has a constitutional duty to institute, sua sponte, a competency hearing if there is substantial evidence before the court indicating that the accused may be mentally incompetent.” Crenshaw v. Wolff, 504 F.2d 377, 378 (8th Cir. 1974).
The test of incompetence approved by the Supreme Court as to federal cases seeks to ascertain whether a criminal defendant “ ‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding— and whether he has a rational as well as factual understanding of the proceedings against him.’ ” Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).
The Supreme Court has not prescribed a general standard with respect to the quantum of evidence necessary to require resort to an adequate procedure under Robinson. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 904, 43 L.Ed.2d 103 (1975). It is clear, however, that where the information available to the trial court is insufficient to raise a bona fide or reasonable doubt as to a defendant’s competence, no hearing is constitutionally required. Id. See Crenshaw, supra at 379; Jones v. Swenson, 469 F.2d 535, 538 (8th Cir. 1972), cert. denied, 412 U.S. 929, 93 S.Ct. 2756, 37 L.Ed.2d 156 (1973).
Defendant here, upon brief to us, asserts that a serious doubt as to his competence was raised when “at least two psychiatrists had earlier reported to the trial judge * * * that defendant was incompetent; and during the trial two of the psychiatrists, Saxvik and Thakor, and several lay witnesses * * * gave testimony to the substantial question of defendant’s competency.” An evaluation of this claim requires an examination of the record in detail.
We note at the outset that our careful review of the testimony and exhibits before and during trial discloses no specific reference to the defendant’s competence to stand trial. Defendant’s case, if any, as to competence to stand trial, rests principally on inferences to be drawn from the testimony and reports concerning his mental condition at the time of the offense.
The record discloses that defendant was arraigned on the original indictment on September 12, 1973. The defendant appeared with counsel and disclosed that he was then under a doctor’s care for “[l]oss of memory.” Defense counsel assured the court that Mr. Dworshak was able to enter a plea, and in due course his not guilty plea was accepted.
A second arraignment on the substituted indictment was held January 3, 1974. Again there was considerable colloquy between the defendant and the court which contains no suggestion that the defendant was unable to understand the proceedings against him.
Later, and on March 21, 1974 defendant filed psychiatric reports with the court. These concerned defendant’s consultation with his private physician Dr. Saxvik on March 11, 1971 and March 24, 1972, and his hospitalization for tests after a visit with Dr. Thakor, another physician of his choice, on July 19, 1972. Defendant was diagnosed a paranoid schizophrenic and was referred to a mental health clinic where he continued (as of January, 1974) to receive social work counseling “on an irregular basis.” Also included was the opinion of Dr. Candy, who had reviewed the file, that an insanity defense was possible since the condition described was likely to have been operative as early as the time of the alleged offense (May, 1970). Dr. Candy also thought it likely that defendant was “remaining in a psychotic state although perhaps in a better degree of compensation at this time.” He recommended further psychological testing.
As a result of these reports the court granted the Government’s motion under 18 U.S.C. § 4244 that defendant submit to psychiatric examination and evaluation at the Federal Medical Center in Springfield, Missouri. After twenty-nine days of extensive testing and evaluation of defendant, Springfield reported on May 28, 1974 its professional staff opinion that the defendant presently had no mental disease or defect, and that he was competent to stand trial and responsible at the time of the alleged offense. Defendant did not challenge this report.
At trial in September, 1974 the defense of insanity at the time of the offense was raised, but not that of incompetence to stand trial. We have carefully examined the transcript and, in particular, the testimony cited in defendant’s brief. It deals primarily with defendant’s mental condition and behavior at the time of the offense in 1970 and at the time of his consultations with Drs. Saxvik and Thakor in 1971 and 1972. Dr. Saxvik did briefly mention a recent (July, 1974) interview with defendant. That interview confirmed his diagnosis that defendant had an ongoing schizophrenic illness which he observed at that time to be “certainly in a very quiet state.”
Under the record as a whole we find insufficient evidence to raise a reasonable doubt of defendant’s competency to stand trial and to require a hearing under the teachings of Drope and Robinson, supra. The record negates defendant’s claim that prior to trial two psychiatrists had reported to the trial judge that defendant was incompetent. To the contrary, the report from the Federal Medical Center in Springfield stated that defendant was competent to stand trial and responsible at the time of the offense alleged. And although there was substantial testimony that defendant had suffered mental problems in 1970, 1971 • and 1972, we do not think any inference from this evidence that defendant was incompetent in 1974 is so strong as to compel the conclusion that the failure of the trial judge to hold a competency hearing without any request or suggestion by counsel amounted to a denial of constitutional due process.
Affirmed.
. Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 904, 43 L.Ed.2d 103 (1975); see Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956), vacating per curiam, 96 U.S.App.D.C. 117, 223 F.2d 582 (1955).
. Because a court-ordered psychiatric report indicated that defendant was competent, defendant had no statutory right under 18 U.S.C. § 4244 to a competency hearing. Krupnick v. United States, 264 F.2d 213, 217 (8th Cir. 1959). The failure to object to the psychiatric report, however, does not upon a proper showing preclude the assertion of the constitutional claim under Robinson that other circumstances known to the trial court rendered the report substantially suspect and that a hearing should therefore have been ordered sua sponte. Jones v. Swenson, 469 F.2d 535, 538 (8th Cir. 1972), cert. denied, 412 U.S. 929, 93 S.Ct. 2756, 37 L.Ed.2d 156 (1973), quoting Green v. United States, 128 U.S.App.D.C. 408, 389 F.2d 949, 955 (1967) (en banc); see also United States v. Maret, 433 F.2d 1064, 1067 (8th Cir. 1970), cert. denied, 402 U.S. 989, 91 S.Ct. 1678, 29 L.Ed.2d 155 (1971).
. We are here speaking of all the information available to the trial court before and during trial. Defendant’s brief lays stress on a conclusion in a psychiatric report dated July 10, 1974 (over two months before trial) expressing doubt that defendant would be able to testify in his own behalf because he is so “easily triggered into what he calls harrassment and could easily develop a florid psychotic illess [sic] again.” The record reflects, contrary to defendant’s assertion, that the report was not submitted to the court until after the trial, at sentencing on October 30, 1974. Defendant’s Application for Bail Pending Appeal filed October 30 states that the report would be the basis of his argument on appeal that the court should have held a competency hearing “aliun-de the trial on the merits.”
Our judgment, hereinafter expressed, is not altered by consideration, in the light of its content, and of the time and circumstances under which it was offered to the trial judge, of the above noted July 10 report.
. Apparently defense counsel were originally of the same view with respect to the trial testimony. Defendant’s Application for Bail Pending Appeal contains the following paragraph:
Furthermore, Defendant says that there was no testimony with reference to the competency of Defendant to stand trial at the time of said trial, by any psychiatrist for either the prosecution or the defense.
. THE COURT: Are you under a doctor’s care at this time?
THE DEFENDANT: Yes.
THE COURT: What is the name of the doctor?
THE DEFENDANT: Falconer.
THE COURT: Dr. Falconer?
THE DEFENDANT: Yes.
THE COURT: Generally speaking, could you tell me the nature of the treatment you are receiving or the disability you are concerned with?
THE DEFENDANT: Loss of memory.
THE COURT: I see.
MR. NODLAND: Your Honor, the Defendant is counseling at the Memorial Mental Health Center in Mandan, North Dakota.
THE COURT: Well, I am concerned, of course, right now about accepting a plea. The Defendant appears to me to be oriented in time and place. He’s answered my questions logically.
Mr. Nodland, I’ll ask you: In your opinion, is this Defendant able to work with you in the courtroom and handle the matter of the pleas at this time?
MR. NODLAND: It is my opinion that he is able to enter a plea at this time.
THE COURT: All right. If any evidence appears, why I’ll just cut off the proceeding.
. For example, the following exchange occurred:
THE COURT: Would you like to have the Indictment read at this time?
THE DEFENDANT: No. I just read it.
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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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.
Vincent R. DUFFY, et al., Plaintiffs, Appellants, v. Brian J. SARAULT, etc., et al., Defendants, Appellees.
No. 89-1099.
United States Court of Appeals, First Circuit.
Heard Sept. 7, 1989.
Decided Dec. 19, 1989.
Thomas J. Liguori, Jr., with whom Urso, Liguori and Urso, Westerly, R.I., was on brief, for plaintiffs, appellants.
Thomas J. McAndrew, Providence, R.I., for defendants, appellees.
Before BOWNES, Circuit Judge, and ALDRICH and GIBSON, Senior Circuit Judges.
The Honorable Floyd R. Gibson, of the Eighth Circuit, sitting by designation.
FLOYD R. GIBSON, Senior Circuit Judge.
Appellants are two former classified employees of the City of Pawtucket, Rhode Island, whose positions were eliminated in a reorganization of city government in 1988. They argued at trial, and here on appeal, that the reorganization was a sham designed to oust them because of their political affiliation with the preceding may- or who was an adversary of the current Mayor of Pawtucket, an appellee. Appellants’ claims are based under 42 U.S.C. § 1983 and § 1985, the First Amendment, the due process clause of the Fourteenth Amendment, and Rhode Island state law. Their complaint named the current Mayor, certain members of his administration, and the Personnel Board of the City. After a bench trial, the district court entered judgment for the defendants on all counts. We now affirm.
BACKGROUND
The appellants, Vincent Duffy and Paul Breault, were political supporters of former Pawtucket Mayor Henry Kinch who served in that job from 1981 until 1987. Breault had been an advisor of Kinch’s since 1969 and worked as a strategist in Kinch’s mayoral campaigns. Kinch named Breault City Clerk in 1982, and Breault later became Director of the Department of Parks and Recreation, a classified post. Breault served there until his termination in June, 1988. Duffy was not politically active in recent years, but was formerly a campaign chair and treasurer for Mayor Kinch. At the time of his termination, Duffy was the Assistant Director of Public Works and had been for some two and one-half years.
The Director of Public Works, after January 1988, was Eugene Jeffers, an appointee of the current Mayor, appellee Brian Sarault. Jeffers was the appellants’ supervisor and delivered their notices of termination due to reorganization on June 14, 1988. Jeffers’ boss, Mayor Sarault, had been an alderman during the Kinch administration and was a vocal opponent of May- or Kinch. In 1985 Sarault unsuccessfully ran against Kinch in the Mayor’s race. During his next term Mayor Kinch announced he would not contend in the following election. Thus, the door was open for Sarault who ran for, and won, the May- or’s seat.
There is no question that the Kinch and Sarault camps were at odds with one another. The record does not reflect what precisely were the sore points. It suffices to say, as the district court did, that the relationship of the parties was marked by considerable acrimony. The question which remains is whether that led to the appellants’ unlawful termination under the Constitution or state law. The district court answered in the negative on all of the claims after hearing close evidence that supported both parties’ cases, but which ultimately, according to the district court, weighed greater for the defendants-appel-lees. Because our decision is based on a careful review of the evidence, we fully set out the facts, quoting at length from the district court’s opinion where pertinent.
FACTS
The positions held by Breault and Duffy and eliminated by reorganization were, respectively, Director of Parks and Recreation and Assistant Director of Public Works.
Prior to the reorganization, the Department of Parks and Recreation contained two subdivisions, one having to do with recreational activities and the other having to do with maintenance of the City’s parks and recreational facilities. There was a person in charge of each of these activities who reported to Mr. Breault. The reorganization eliminated the Director’s position, but split the department into two sections, headed by a Superintendent of Parks and a Superintendent of Recreation. The result was that the same work was divided among the two superintendents and, indeed, after the reorganization the same work was performed by the same persons. Mr. Breault applied for several vacant positions, including the Superintendent of Recreation, Superintendent of Parks, [Supervisor] of Public Works Operations, and Assessor. He received no interview with respect to the Superintendent of Recreation’s position; he had interviews with respect to the other positions but was not offered a slot. [Mr. Jeffers testified he chose a higher scoring candidate for the position of Superintendent of Parks], Mr. Breault, as a Director, was at pay grade 15 for which he received $37,100 per year. The Superintendent of Park’s position paid something more than $29,000 per year.
The requirements for the newly created position of Supervisor of Public Works Operations, which proximated the job responsibilities of Mr. Duffy’s position as Assistant Director of Public Works, included a ten year experience requirement. Because Mr. Duffy did not have ten years experience he was not eligible for that position.
Duffy, 702 F.Supp. at 389.
We elaborate on the controversy surrounding Duffy's job and his replacement. Duffy held a college degree in his job as assistant director, but, because the reorganized position of supervisor required only a high school diploma and ten years experience and because Mr. Duffy did not have the requisite ten years, he could not even apply for the job even though it paralleled his work as assistant director. In addition, appellants’ brief suggests, and testimony supports the conclusion, that an ally of Jeffers’ and Sarault’s, Louis Simon, moved into Duffy’s office and began to assume Duffy’s tasks prior to the reorganization. In the end, it was Simon who got the job of Supervisor of Public Works Operations, a title which he apparently was given prior to the reorganization.
The reorganization plan went through several stages. First, a Management Task Force studied the City’s operations [at the behest of Mayor Sarault who apparently did not at all follow their progress]. The committee was a volunteer effort of nine public spirited citizens, the majority of whom were selected by Mr. Baptista, the chairman of that advisory committee. His selections were made with assistance from the Blackstone Valley Chamber of Commerce. Mr. Baptista testified that the Task Force had five meetings before June 9, 1988, that the Department of Public Works [appellants’ department] was the subject of a lengthy discussion of one hour and a half on May 5, 1988, and that he met on May 5, 1988 with Mr. Jeffers, the Sarault administration’s Director of the Department of Public Works. He relied on Mr. Jeffers and other people on the Management Task Force who had more experience. The Task Force prepared a preliminary report which suggested that certain positions be abolished, including the Assistant Director of Public Works [Duffy’s job].
The reorganization was voted on June 13, 1988 by the Personnel Board of the City. There is no record of a consideration of reorganization by the Personnel Board from January 6, 1988 until the action taken on June 13, 1988. The Board is composed of five members, who are appointed by the Mayor with the approval of the City Council. Two members were appointed by Mayor Sarault, two by former Mayor Kinch, and one by former Mayor Lynch. The Personnel Board was unanimous in adopting the reorganization which became effective July 1, 1988.
After the reorganization’s adoption fourteen people were notified of their termination. However, of the fourteen, two persons retired and only four others are no longer City employees, including the three persons who were Plaintiffs in this case [The third plaintiff is not a party to this appeal. He dropped out after finding other work with the aid of Mayor Sarault] and a part-time nurse who worked in the community medical services unit. The reorganization resulted in a savings of $123,000.
Duffy, 702 F.Supp. at 389-90.
The record does not reveal how much of a savings was had with respect to the jobs of Breault and Duffy alone, but it appears to have been none. Nevertheless the overhaul in the Department of Public Works was otherwise substantial. The department had 189 employees and the reorganization plan recommended abolishing thirteen positions and establishing seven others. The Director of Public Works, Jef-fers, testified that the changes were long overdue and had nothing to do with the Kinch affiliations of Breault and Duffy.
The district court, however, did find that the political affiliations of the two “were substantial factors in the Defendants’ decision to reorganize the Department of Public Works.” Duffy, 702 F.Supp. at 391. We will come back to this finding in our discussion of the First Amendment infra.
Other relevant testimony credited by the district court was that of Robert Litchfield, who had dropped out of the case, and Councilman Doyle of Pawtucket.
Robert Litchfield, the former City Property Manager who had been a Plaintiff in this action, testified that Sarault’s Administrative Assistant expressed surprise at Litchfield’s surprise about the reorganization, stating “this happens to everybody in our business.”
Councilman Doyle, a Kinch supporter, testified that he was president of the City Council from 1981 to 1987 during the Kinch administration. He had a discussion with Mr. Jeffers on election evening at an establishment called “Hooligan’s” on Central Avenue in Pawtucket at which time Mr. Jeffers said something to the effect that things are going to be different “once we get rid of the Byners and the Breaults.” Byner was then City Solicitor.
Id. at 390.
Appellants argue that the evidence as a whole demonstrates that they were fired for political reasons and the district court erred by denying their claims. We consider each one of their claims.
FIRST AMENDMENT
Scope of Review
The gist of both parties’ briefs and the better part of this case concerns the First Amendment claims of Duffy and Breault. The claims are substantial and the evidence close. The district court found, in fact, that the political affiliations of Duffy and Breault were impermissibly considered in the decision to reorganize the City of Paw-tucket which eliminated their jobs. Nevertheless, the court went on to find that the two would have lost their jobs anyway, regardless of their political ties, and thus that no First Amendment violation occurred. Duffy, 702 F.Supp. at 391. The appellants contend error in this finding by the district court and urge us to reverse by substituting our judgment for that of the district court, by authority of Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984). Appellees conversely suggest we are bound by the clearly erroneous standard in our review of the district court’s findings.
Because the evidence is close, the standard of review we employ will be disposi-tive of this claim. For this reason we have devoted considerable attention to the question with an extended discussion of our decision to use the clearly erroneous standard.
As the district court discussed in its opinion, the correct analysis of this political dismissal claim is provided in Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). A plaintiff must show the speech he engaged in was constitutionally protected and a substantial factor in his termination in order to show a violation of the First Amendment. The defendant then has an opportunity to rebut and prove by a preponderance that the plaintiff would have been terminated regardless of his protected speech. Id. at 287, 97 S.Ct. at 576.
Whether by judge or jury, these latter determinations are findings of fact. They are difficult facts to find, too. As the district court noted: “[d]irect evidence of retaliatory firings is rare; facts in these cases must often be inferred from the evidence.” Duffy, 702 F.Supp. at 391. Such inferences are harder still to make, and not wisely made, by an appellate court. It would seem to go without saying that the standard of review would be whether such findings when made from the bench were clearly erroneous. Fed.R.Civ.P. 52(a).
However, the first Mt. Healthy finding (whether the speech was protected) implicates the First Amendment. The appellants put forth a well-made argument that the Supreme Court has declared that review of all First Amendment questions like this one must be plenary to adequately safeguard the inviolable rights we hold so dear under that Amendment. Appellants rely on Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) in which the Court stated:
in cases raising First Amendment issues we have repeatedly held that an appellate court has an obligation to “make an independent examination of the whole record” in order to make sure that “the judgment does not constitute a forbidden intrusion on the field of free expression.” New York Times v. Sullivan, 376 U.S. [254] at 284-86 [84 S.Ct. 710 at 728-29, 11 L.Ed.2d 686 (1964)]. [citations omitted]
Bose, 466 U.S. at 499, 104 S.Ct. at 1958.
Thus, the precise question we are attempting to answer is whether Bose requires a de novo review of a finding that a defendant has shown by a preponderance that termination (here reorganization) would have occurred regardless of the plaintiffs protected conduct under Mt. Healthy, or whether the more conventional, clearly erroneous standard applies. This question has not been precisely answered in this circuit. On point, there are five cases that mention Bose and deal with varying facets of this issue. Of those, two cases were not presented with this precise issue. In re The Bible Speaks, 869 F.2d 628, 630 (1st Cir.), cert. denied, — U.S. -, 110 S.Ct. 67, 107 L.Ed.2d 34 (1989); Collazo Rivera v. Torres Gaztambide, 812 F.2d 258, 259 (1st Cir.1987). The third and most recent case mentioning Bose is a defamation case and the issue of de novo review was not involved. Kassel v. Gannett Co., 875 F.2d 935, 937 (1st Cir.1989).
The other two cases do deal with aspects of our questions. Brasslett v. Cota, 761 F.2d 827 (1st Cir.1985), involved a fire chief who made certain statements in the local press for which he was fired. The district court concluded that the chiefs statements were not protected speech. This court reversed, finding the statements were protected speech on de novo review of the evidence. With respect to Bose, we said:
We believe that Bose clearly requires us to undertake an independent review of the district court’s ultimate finding that Brasslett’s statements to the press were unprotected under the First Amendment, [citations omitted] Like the determination of actual malice, the balancing test prescribed in Pickering [v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) ] exemplifies an inextricable relationship between the evolution of constitutional law and the case-by-case application of specific facts to existing legal rules. We must therefore examine, under the appropriately heightened standard, the correctness of the trial judges’ findings of fact regarding the pertinent interests to be weighed — the nature of the plaintiffs speech and the impact of that speech on the defendants’ ability to perform their public responsibilities.
Id. at 840.
Brasslett acknowledges the principles of Bose “that an appellate court reviewing First Amendment cases is not bound by the clearly erroneous standard set forth in Fed. R.Civ.P. 52(a),” and referred to “the rule of independent appellate review historically applied in First Amendment cases.” Id. at 839. [citations omitted.]
The opinion goes on to review the evidence on the defendant’s preponderance burden under Mt. Healthy and finds that the defendants failed to meet that burden. Id. at 846-47. Because we were not reviewing a finding of the district court under the latter part of Mt. Healthy as we must in the instant case, Brasslett fails to yield an answer to our question.
Finally, in Figueroa v. Aponte-Roque, 864 F.2d 947 (1st Cir.1989), the plaintiffs claimed they were not renewed in their jobs with the Department of Education of Puer-to Rico because of their political affiliations. The plaintiffs lost after a jury trial and on appeal argued that Bose allowed a stricter review of the evidence. Without saying anything more, in a footnote we said:
We reject appellants’ suggestion that we review the facts in political discharge cases de novo, as in cases involving free speech. See Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485, 498-511, 104 S.Ct. 1949, 1958-64, 80 L.Ed.2d 502 (1984); Brasslett v. Cota, 761 F.2d 827, 839-40 (1st Cir.1985). We previously have adhered in political discharge cases to the traditional standard of review, and we see no reason to depart from that practice at this time.
Id. at 949 n. 3, [citation omitted].
While the facts of this case make it seem like Figueroa, a political discharge case, the posture of the case is more like Bras-slett, because it involves review of a district court’s Mt. Healthy determinations. Thus, Figueroa is not dispositive, and because of the similarities to Brasslett, we expound more at length upon why we answer our precise question with the clearly erroneous standard.
Again our launching point is Bose. In the language quoted from Bose, read as the appellants would like, the Court seems to suggest that appellate courts may review de novo all cases involving free expression. However, appellants fail to note one of the most salient features of the language: it was made in the context of a defamation case like New York Times v. Sullivan. On the same page the appellants quote, the Court in Bose explained:
Our standard of review must be faithful to both Rule 52(a) and the rule of independent review applied in New York Times Co. v. Sullivan. The conflict between the two rules is in some respects more apparent than real. The New York Times rule emphasizes the need for an appellate court to make an independent examination of the entire record; Rule 52(a) never forbids such an examination, and indeed our seminal decision on the Rule expressly contemplated a review of the entire record, stating that a “finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., supra, [333 U.S. 364] at 395 [68 S.Ct. 525 at 541, 92 L.Ed. 746 (1948)] (emphasis supplied).
Bose, 466 U.S. at 499, 104 S.Ct. at 1959.
Further on this point, the Court made it clear that heightened independent appellate review applies to the determination of actual malice in defamation cases because of the particular constitutional values the New York Times rule protects. Id. at 501-02, 104 S.Ct. at 1959-60.
Later cites to Bose by the Court support this view. In a ease addressing the review of the voluntariness of a confession, the Court cited Bose for the proposition that de novo review is important to appellate courts as expositors of law “[w]here, for example, as with proof of actual malice in First Amendment libel cases, the relevant legal principle can be given meaning only through its application to the particular circumstances of a case....” Miller v. Fenton, 474 U.S. 104, 114, 106 S.Ct. 445, 451, 88 L.Ed.2d 405 (1985). In a case upholding the constitutionality of a Maine statute under the commerce clause, the Court, citing Bose, said “no broader review [of factual findings] is authorized here simply because this is a constitutional case, or because the factual findings at issue may determine the outcome of this case.” Maine v. Taylor, 477 U.S. 131, 145, 106 S.Ct. 2440, 2451, 91 L.Ed.2d 110 (1986) [citations omitted]. In Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), the Court rejected an argument, similar to appellants’ here, that Bose was authority for de novo review of a finding of vote dilution. The Court pointed out that Bose involved determination of actual malice in a defamation case and did not apply in the instant case. Id. at 78, 106 S.Ct. at 2780. In Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987), the Court cited Bose to support de novo review of determinations of what is protected speech, as a question of law. Id. at 386 n. 9, 107 S.Ct. at 2897 n. 9.
The Ninth Circuit has said that the Bose decision as well as the case law of that circuit required de novo review of the O’Brien factors in a case where a city ordinance regulated free speech. Playtime Theaters, Inc. v. City of Renton, 748 F.2d 527, 535 (9th Cir.1984), rev’d, 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). We note that in the reversal of that case before the Supreme Court, the Court expressly declined to review the Ninth Circuit’s reading of Bose as unnecessary to a decision in that case. Renton v. Playtime Theatres, Inc., 475 U.S. 41, 53 n. 3, 106 S.Ct. 925, 932 n. 3, 89 L.Ed.2d 29 (1986).
Brasslett applied de novo review to a fact situation other than actual malice, but it did so on the similar question of what is protected free speech. Brasslett, 761 F.2d at 840. Thus, Brasslett is not authority for the proposition that all findings of fact are subject to de novo review in a First Amendment case. The concern in Brasslett, as in Bose, is for those findings that “exemplify] an inextricable relationship between the evolution of [First Amendment] constitutional law and the case-by-case application of specific facts to existing legal rules.” Id. De novo review of such findings ensures that the federal courts remain zealous protectors of First Amendment rights.
Thus, findings on what is protected free speech (the first part of Mt. Healthy) are appropriately considered by de novo review. The findings on whether that speech substantially affected a defendant’s employment decision and whether the defendant has met his preponderance burden that the decision would be made anyway (the other two parts of Mt. Healthy), however, are not considered by de novo review, but are factual determinations subject to the clearly erroneous standard. See Wren v. Spurlock, 798 F.2d 1313, 1317 (10th Cir.1986), cert. denied, 479 U.S. 1085, 107 S.Ct. 1287, 94 L.Ed.2d 145 (1987). These latter findings do not directly touch First Amendment rights. Rather, they are findings about a defendant’s subjective employment decisions made from documentary and testimonial evidence, both of which are best judged by a trier of fact, particularly where credibility determinations will be made. Fed.R.Civ.P. 52(a); see Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). We hold that the standard of review of the finding on a defendant’s preponderance burden from Mt. Healthy is whether the finding was clearly erroneous under Rule 52(a).
Application of Rule 52(a)
Appellants “won” the first two parts of Mt. Healthy and appeal only the district court’s conclusion that the appellees proved by a preponderance that they would have reorganized despite the appellants’ affiliations with Kinch. We do not find that conclusion to be clearly erroneous. The district court was in a far better position to view the evidence at trial than we are from the flat record. Having reviewed the entire record we are not “left with a definite and firm conviction that a mistake has been committed.” See United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948). With that in mind, we address some of the evidentiary points raised by the appellants.
Appellants argue that the district court’s findings are contradictory and thereby clearly erroneous. The two findings disputed are that, on the one hand, political affiliation played an impermissible part in the decision to reorganize and that, on the other, the reorganization would have been made anyway. Appellants point to several things: 1) that no precise savings were shown to be had by eliminating their positions; 2) that Duffy was replaced even before the reorganization, and the job performed by his replacement was roughly equivalent to his old job of assistant director; 3) that the same work was performed in Breault’s division after reorganization with some title changes. All of this evidence suggests political affiliation was impermissibly considered in the decision to reorganize, and the district court made that finding. This evidence, however, does not necessarily bear on the question of whether appellees could show reorganization would have occurred anyway. That evidence is of a broader nature, taking the reorganization as a whole. The district court rightly considered the particular impact on appellants to determine if political affiliation played a substantial factor in their terminations and then considered the reorganization as a whole to determine if it would have proceeded anyway. The district court’s findings are not inconsistent.
The appellants go on to attack the evidence relied on by the district court on the question of whether the reorganization would have occurred anyway. For example, where the district court relied on the recommendation of the Baptista Task Force, the appellants argue that the district court ignored Baptista’s alliance with May- or Sarault. It is unlikely that the district court ignored anything;, it had all the evidence before it. But, because evidence is presented by opposite views, the court must credit certain evidence over other evidence. The district court credited Mr. Bap-tista’s testimony, despite evidence of his political affiliation with Sarault. In essence, that is a credibility decision that we cannot say was clearly erroneous.
Much of the appellants’ argument is with the district court’s view of the evidence, like the argument above about Baptista. That is, they quarrel with the court’s decision to credit certain testimony and other evidence. The appellants, of course, would reach a different result. That, however, is not a sign that the district court erred.
Along a similar line, the appellants suggest that the district court abandoned its own expressed views in reaching its findings. For example, appellants complain that the district court could in one breath note that the end result of the reorganization suspiciously left only Duffy and Breault without jobs, yet, in the next, find that the reorganization would have occurred anyway. This, again, is largely a dispute with how the court credited certain evidence.
Examined in isolation, any one of the points the appellants argue makes a good case of political discrimination that denies a finding that the reorganization would have gone forward. But evidence is never isolated. It must be considered vis-a-vis other, oftentimes, contradictory evidence. In the end the evidence must be summed up to reach a finding of fact, crediting some parts of it over others. This is what the district court did, only to the dissatisfaction of Duffy and Breault.
We note that even if we were sitting as triers of fact who would have viewed the evidence differently from the district court (or even as the appellants urge, in some instances), that would not make the district court’s decision clearly erroneous. See Anderson, 470 U.S. at 573-74, 105 S.Ct. at 1511. Under that standard, although the evidence is close, we find the district court’s view of the evidence plausible from our review of the entire record.
DUE PROCESS
Appellants argue that they were denied procedural due process when their jobs were eliminated by reorganization and that the district court erred by concluding otherwise. The district court first determined that the plaintiffs had a property interest in their jobs as classified employees of Pawtucket. The court recognized, however, that that interest was not in perpetuity and did not exist after the jobs were eliminated. This has been called the “reorganization exception” to due process hearings. See Misek v. City of Chicago, 783 F.2d 98, 100-01 (7th Cir.1986). Where a reorganization or other cost-cutting measure results in dismissal of an employee no hearing is due. See Hartman v. City of Providence, 636 F.Supp. 1395, 1410 (D.R.I.1986) (collecting cases).
The appellants do not deny this rule, but instead argue that the district court misapplied it, by failing to determine if the reorganization was pretextual. They quote at length from Ryman v. Reichert, 604 F.Supp. 467 (S.D.Ohio 1985), to suggest that the district court failed to properly determine if the reorganization was pretextual. Without reaching an opinion on the standard from Ryman, we find that because the district court determined that the reorganization was valid for purposes of Mt. Healthy, another finding on that point under due process was unnecessary. The district court found, and we have affirmed, that the appellees proved that they would have reorganized despite the political affiliations of appellants.
In short, that was a finding that the reorganization was not pretextual. Either the reorganization was a sham or it was not. The district court found it was not, and did not repeat itself under its due process analysis, but properly went straight to a consideration of what was left after a valid reorganization. We find that because the appellants’ jobs were lost subject to a valid reorganization they were not entitled to due process prior to that reorganization taking effect.
STATE CLAIMS
The district court properly exercised its pendent jurisdiction and resolved two state law claims based on the same facts of reorganization as considered under the constitutional claims. The district court’s conclusions on state law are due considerable deference on appeal. Gary Braswell & Assocs. v. Piedmont Indus., 773 F.2d 987, 989 n. 3 (8th Cir.1985). “[W]e are reluctant to interfere with a reasonable construction of state law made by a district judge, sitting in the state, who is familiar with that state’s law and practices.” Rose v. Nashua Bd. of Educ., 679 F.2d 279, 281 (1st Cir.1982) (citations omitted). We believe the district court’s decision not to grant relief under the Rhode Island Open Meetings Law, R.I.Gen.Laws § 42-46-8 (1987 reenactment), was reasonable for the considerations given in its opinion. Duffy, 702 F.Supp. at 394 (giving reasons).
As to the City Charter provisions, we agree with the district court that a plain reading of sections 7-104(19) and 7-101 do not admit of any violations where positions have been abolished or eliminated due to a valid reorganization. Id. at 393.
Finally, there are Rule XVI, Section 1 and Rule III, Section 7 of the City of Pawtucket Personnel Rules and Regulations. Rule XVI, Section 1 prohibits discrimination for political affiliation “in any way” against classified employees. The district court declined to answer the question of whether the appellants were discriminated against “in any way” under that section. The court found, instead, that under Rule III, Section 7, the appellants had failed to exhaust their administrative remedies. Duffy, 702 F.Supp. at 392 n. 3.
The appellants complain that Rule III, Section 7 does not require any administrative appeal, and thus the district court erred. In pertinent part, Section 7 reads, “[a]ny officer, employee, or citizen, who feels himself aggrieved ... may appear before the Board....” City of Pawtucket, Personnel Rules and Regulations, Rule III, Section 7 (emphasis added).
As the appellants suggest, the use of the word “may” does not require an appeal to the personnel board. But it does grant one as a matter of right. There is some authority in Rhode Island for the proposition that administrative remedies must be pursued prior to the invocation of a judicial forum. See Chase v. Mousseau, 448 A.2d 1221, 1224 (R.I.1982). But see Lefebvre v. Kando, 119 R.I. 780, 383 A.2d 589 (1978) (a Pawtucket case allowing resort to state court without discussion of administrative remedies). Yet it is not clear what Rhode Island state courts would require under the Personnel Rules and Regulations of Paw-tucket. Nevertheless, it was not error for the federal district court, in its discretion, to decline review where state administrative rights had not been exercised by the appellants.
OTHER CLAIMS
We agree with the district court that appellants’ § 1985 claims have no merit because no constitutional violation was found. Similarly, we find the appellants’ claims for nominal damages and for attorneys’ fees to be without merit.
The judgment of the district court is
Affirmed.
. Duffy v. Sarault, 702 F.Supp. 387 (D.R.I.1988).
. Certainly Brasslett stands for the proposition that, if in question, we would review de novo the district court’s determination that Duffy and Breault’s political affiliations were protected speech, but that is not what is complained of in this appeal.
. United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (stating a four-part test to determine the constitutionality of regulations that restrict free speech).
. We express no opinion on what view of the evidence we would have under de novo review.
.If the organization were found to be pretextual under due process, it would logically have been impossible earlier to find that defendants had met their preponderance burden from Mt. Healthy.
.Accordingly, we do not have to reach the district court's view of the City of Pawtucket Personnel Rules and Regulations, Rule III, Section 7,under due process.
. This is not like 42 U.S.C. § 1983 where exhaustion of remedies is not required before making a constitutional claim. See Patsy v. Florida Board of Regents, 457 U.S. 496, 102 S.Ct. 2557, 73 L.Ed.2d 172 (1982). The personnel rules are the basis of a state claim which the district court has discretion to decline to consider.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
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sc_casedisposition
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C
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
COX BROADCASTING CORP. et al. v. COHN
No. 73-938.
Argued November 11, 1974
Decided March 3, 1975
Kirk M. McAlpin argued the cause for appellants. With him on the briefs was Joseph R. Bankoff.
Stephen A. Land argued the cause and filed briefs for appellee.
Briefs of amici curiae were filed by Arthur K. Bolton, Attorney General, Robert S. Stubbs II, Executive Assistant Attorney General, and Don A. Langham and Alfred L. Evans, Jr., Assistant Attorneys General, for the State of Georgia, and by David L. Freeman and Alfred F. Burgess for Multimedia, Inc.
Mr. Justice White
delivered the opinion of the Court.
The issue before us in this case is whether, consistently with the First and Fourteenth Amendments, a State may extend a cause of action for damages for invasion of privacy caused by the publication of the name of a deceased rape victim which was publicly revealed in connection with the prosecution of the crime.
I
In August 1971, appellee's 17-year-old daughter was the victim of a rape and did not survive the incident. Six youths were soon indicted for murder and rape. Although there was substantial press coverage of the crime and of subsequent developments, the identity of the victim was not disclosed pending trial, perhaps because of Ga. Code Ann. § 26-9901 (1972), which makes it a misdemeanor to publish or broadcast the name or identity of a rape victim. In April 1972, some eight months later, the six defendants appeared in court. Five pleaded guilty to rape or attempted rape, the charge of murder having been dropped. The guilty pleas were accepted by the court, and the trial of the defendant pleading not guilty was set for. a later date.
In the course of the proceedings that day, appellant Wassell, a reporter covering the incident for his employer, learned the name of the victim from an examination of the indictments which were made available for his inspection in the courtroom. That the name of the victim appears in the indictments and that the indictments were public records available for inspection are not disputed. Later that day, Wassell broadcast over the facilities of station WSB-TV, a television station owned by appellant Cox Broadcasting Corp., a news report concerning the court proceedings. The report named the victim of the crime and was repeated the following day.
In May 1972, appellee brought an action for money damages against appellants, relying on § 26-9901 and claiming that his right to privacy had been invaded by the television broadcasts giving the name of his deceased daughter. Appellants admitted the broadcasts but claimed that they were privileged under both state law and the First and Fourteenth Amendments. The trial court, rejecting appellants' constitutional claims and holding that the Georgia statute gave a civil remedy to those injured by its violation, granted summary judgment to appellee as to liability, with the determination of- damages to await trial by jury.
On appeal, the Georgia Supreme Court, in its initial opinion, held that the trial court had erred in construing § 26-9901 to extend a civil cause of action for invasion of privacy and thus found it unnecessary to consider the constitutionality of the statute. 231 Ga. 60, 200 S. E. 2d 127 (1973). The court went on to rule, however, that the complaint stated a cause of action “for the invasion of the appellee’s right of privacy, or for the tort of public disclosure” — a “common law tort exist[ing] in this jurisdiction without the help of the statute that the trial judge in this case relied on.” Id., at 62, 200 S. E. 2d, at 130. Although the privacy invaded was not that of the deceased victim, the father was held to have stated a claim for invasion of his own privacy by reason of the publication of his daughter’s name. The court explained, however, that liability did not follow as a matter of law and that summary judgment was improper; whether the public disclosure of the name actually invaded appellee’s “zone of privacy,” and if so, to what extent, were issues to be determined by the trier of fact. Also, “in formulating such an issue for determination by the fact-finder, it is reasonable to require the appellee to prove that the appellants invaded his privacy with wilful or negligent disregard for the fact that reasonable men would find the invasion highly offensive.” Id., at 64, 200 S. E. 2d, at 131. The Georgia Supreme Court did agree with the trial court, however, that the First and Fourteenth Amendments did not, as a matter of law, require judgment for appellants. The court concurred with the statement in Briscoe v. Reader’s Digest Assn., Inc., 4 Cal. 3d 529, 541, 483 P. 2d 34, 42 (1971), that “the rights guaranteed by the First Amendment do not require total abrogation of the right to privacy. The goals sought by each may be achieved with a minimum of intrusion upon the other.”
Upon motion for rehearing the Georgia court countered the argument that the victim’s name was a matter of public interest and could be published with impunity by relying on J 26-9901 as an authoritative declaration of state policy that the name of a rape victim was not a matter of public concern. This time the court felt compelled to determine the constitutionality of the statute and sustained it as a “legitimate limitation on the right of freedom of expression contained in the First Amendment.” The court could discern “no public interest or general concern about the identity of the victim of such a crime as will make the right to disclose the identity of the victim rise to the level of First Amendment protection.” 231 Ga., at 68, 200 S. E. 2d, at 134.
We postponed decision as to our jurisdiction over this appeal to the hearing on the merits. 415 U. S. 912 (1974). We conclude that the Court has jurisdiction, and reverse the judgment of the Georgia Supreme Court.
II
Appellants invoke the appellate jurisdiction of this Court under 28 U. S. C. § 1257 (2) and, if that jurisdictional basis is found to be absent, through a petition for certiorari under 28 U. S. C. § 2103. Two questions concerning our jurisdiction must be resolved: (1) whether the constitutional validity of § 26-9901 was “drawn in question,” with the Georgia Supreme Court upholding its validity, and (2) whether the decision from which this appeal has been taken is a “[fjinal judgment or decree.”
A
Appellants clearly raised the issue of the constitutionality of § 26-9901 in their motion for rehearing in the Georgia Supreme Court. In denying that motion that court held: “A majority of this court does not consider this statute to be in conflict with the First Amendment.” 231 Ga., at 68, 200 S. E. 2d, at 134. Since the court relied upon the statute as a declaration of the public policy of Georgia that the disclosure of a rape victim’s name was not to be protected expression, the statute was drawn in question in a manner directly bearing upon the merits of the action, and the decision in favor of its constitutional validity invokes this Court’s appellate jurisdiction. Cf. Garrity v. New Jersey, 385 U. S. 493, 495-96 (1967).
B
Since 1789, Congress has granted this Court appellate jurisdiction with respect to state litigation only after the highest state court in which judgment could be had has rendered a “ [f ] inal judgment or decree.” Title 28 U. S. C. § 1257 retains this limitation on our power to review cases coming from state courts. The Court has noted that “[ considerations of English usage as well as those of judicial policy” would justify an interpretation of the final-judgment rule to preclude review “where anything further remains to be determined by a State court, no matter how dissociated from the only federal issue that has finally been adjudicated by the highest court of the State.” Radio Station WOW, Inc. v. Johnson, 326 U. S. 120, 124 (1945). But the Court there observed that the rule had not been administered in such a mechanical fashion and that there were circumstances in which there has been “a departure from this requirement of finality for federal appellate jurisdiction.” Ibid.
These circumstances were said to be “very few,” ibid.; but as the cases have unfolded, the Court has reeurringly encountered situations in which the highest court of a State has finally determined the federal issue present in a particular case, but in which there are further proceedings in the lower state courts to come. There are now at least four categories of such cases in which the Court has treated the decision on the federal issue as a final judgment for the purposes of 28 U. S. C. § 1257 and has taken jurisdiction without awaiting the completion of the additional proceedings anticipated in the lower state courts. In most, if not all, of the cases in these categories, these additional proceedings would not require the decision of other federal questions that might also require review by the Court at a later date, and immediate rather than delayed review would be the best way to avoid “the mischief of economic waste and of delayed justice,” Radio Station WOW, Inc. v. Johnson, supra, at 124, as well as precipitate interference with state litigation. In the cases in the first two categories considered below, the federal issue would not be mooted or otherwise affected by the proceedings yet to be had because those proceedings have little substance, their outcome is certain, or they are wholly unrelated to the federal question. In the other two categories, however, the federal issue would be mooted if the petitioner or appellant seeking to bring the action here prevailed on the merits in the later state-court proceedings, but there is nevertheless sufficient justification for immediate review of the federal question finally determined in the state courts.
In the first category are those cases in which there are further proceedings — even entire trials — yet to occur in the state courts but where for one reason or another the federal issue is conclusive or the outcome of further proceedings preordained. In these circumstances, because the case is for all practical purposes concluded, the judgment of the state court on the federal issue is deemed final. In Mills v. Alabama, 384 U. S. 214 (1966), for example, a demurrer to a criminal complaint was sustained on federal constitutional grounds by a state trial court. The State Supreme Court reversed, remanding for jury trial. This Court took jurisdiction on the reasoning that the appellant had no defense other than his federal claim and could not prevail at trial on the facts or any nonfederal ground. To dismiss the appeal “would not only be an inexcusable delay of the benefits Congress intended to grant by providing for appeal to this Court, but it would also result in a completely unnecessary waste of time and energy in judicial systems already troubled by delays due to congested dockets.” Id., at 217-218 (footnote omitted).
“The designation given the judgment by state practice is not controlling. Department of Banking v. Pink, 317 U. S. 264, 268. The question is whether it can be said that ‘there is nothing more to be decided’ (Clark v. Williard, 292 U. S. 112, 118), that there has been ‘an effective determination of the litigation.’ Market Street Ry. Co. v. Railroad Commission, 324 U. S. 548, 551; see Radio Station WOW v. Johnson, 326 U. S. 120, 123-124. That question will be resolved not only by an examination of the entire record (Clark v. Williard, supra) but, where necessary, by resort to the local law to determine what effect the judgment has under the state rules of practice.” Id., at 72.
Second, there are cases such as Radio Station WOW, supra, and Brady v. Maryland, 373 U. S. 83 (1963), in which the federal issue, finally decided by the highest court in the State, will survive and require decision regardless of the outcome of future state-court proceedings. In Radio Station WOW, the Nebraska Supreme Court directed the transfer of the properties of a federally licensed radio station and ordered an accounting, rejecting the claim that the transfer order would interfere with the federal license. The federal issue was held reviewable here despite the pending accounting on the “presupposition... that the federal questions that could come here have been adjudicated by the State court, and that the accounting which remains to be taken could not remotely give rise to a federal question... that may later come here....” 326 U. S., at 127. The judgment rejecting the federal claim and directing the transfer was deemed “dissociated from a provision for an accounting even though that is decreed in the same order.” Id., at 126. Nothing that could happen in the course of the accounting, short of settlement of the case, would foreclose or make unnecessary decision on the federal question. Older cases in the Court had reached the same result on similar facts. Carondelet Canal & Nav. Co. v. Louisiana, 233 U. S. 362 (1914); Forgay v. Conrad, 6 How. 201 (1848). In the latter case, the Court, in an opinion by Mr. Chief Justice Taney, stated that the Court had not understood the final-judgment rule “in this strict and technical sense, but has given [it] a more liberal, and, as we think, a more reasonable construction, and one more consonant to the intention of the legislature." Id., at 203.
In the third category are those situations where the federal claim has been finally decided, with further proceedings on the merits in the state courts to come, but in which later review of the federal issue cannot be had, whatever the ultimate outcome of the case. Thus, in these cases, if the party seeking interim review ultimately prevails on the merits, the federal issue will be mooted; if he were to lose on the merits, however, the governing state law would not permit him again to present his federal claims for review. The Court has taken jurisdiction in these circumstances prior to completion of the case in the state courts. California v. Stewart, 384 U. S. 436 (1966) (decided with Miranda v. Arizona), epitomizes this category. There the state court reversed a conviction on federal constitutional grounds and remanded for a new trial. Although the State might have prevailed at trial, we granted its petition for certiorari and affirmed, explaining that the state judgment was “final” since an acquittal of the defendant at trial would preclude, under state law, an appeal by the State. Id., at 498 n. 71.
A recent decision in this category is North Dakota State Board of Pharmacy v. Snyder’s Drug Stores, Inc., 414 U. S. 156 (1973), in which the Pharmacy Board rejected an application for a pharmacy operating permit relying on a state statute specifying ownership requirements which the applicant did not meet. The State Supreme Court held the statute unconstitutional and remanded the matter to the Board for further consideration of the application, freed from the constraints of the ownership statute. The Board brought the case here, claiming that the statute was constitutionally acceptable under modern cases. After reviewing the various circumstances under which the finality requirement has been deemed satisfied despite the fact that litigation had not terminated in the state courts, we entertained the case over claims that we had no jurisdiction. The federal issue would not survive the remand, whatever the result of the state administrative proceedings. The Board might deny the license on state-law grounds, thus foreclosing the federal issue, and the Court also ascertained that under state law the Board could not bring the federal issue here in the event the applicant satisfied the requirements of state law except for the invalidated ownership statute. Under these circumstances, the issue was ripe for review.
Lastly, there are those situations where the federal issue has been finally decided in the state courts with further proceedings pending in which the party seeking review here might prevail on the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court, and where reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action rather than merely controlling the nature and character of, or determining the admissibility of evidence in, the state proceedings still to come. In these circumstances, if a refusal immediately to review the state-court decision might seriously erode federal policy, the Court has entertained and decided the federal issue, which itself has been finally determined by the state courts for purposes of the state litigation.
In Construction Laborers v. Curry, 371 U. S. 542 (1963), the state courts temporarily enjoined labor union picketing over claims that the National Labor Relations Board had exclusive jurisdiction of the controversy. The Court took jurisdiction for two independent reasons. First, the power of the state court to proceed in the face of the preemption claim was deemed an issue separable from the merits and ripe for review in this Court, particularly “when postponing review would seriously erode the national labor policy requiring the subject matter of respondents’ cause to be heard by the... Board, not by the state courts.” Id., at 550. Second, the Court was convinced that in any event the union had no defense to the entry of a permanent injunction other than the preemption claim that had already been ruled on in the state courts. Hence the case was' for all practical purposes concluded in the state tribunals.
In Mercantile National Bank v. Langdeau, 371 U. S. 555 (1963), two national banks were sued, along with others, in the courts of Travis County, Tex. The claim asserted was conspiracy to defraud an insurance company. The banks as a preliminary matter asserted that a special federal venue statute immunized them from suit in Travis County and that they could properly be sued only in another county. Although trial was still to be had and the banks might well prevail on the merits, the Court, relying on Curry, entertained the issue as a “separate and independent matter, anterior to the merits and not enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.” Id., at 558. Moreover, it would serve the policy of the federal statute “to determine now in which state court appellants may be tried rather than to subject them... to long and complex litigation which may all be for naught if consideration of the preliminary question of venue is postponed until the conclusion of the proceedings.” Ibid.
Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), is the latest case in this category. There a candidate for public office sued a newspaper for refusing, allegedly contrary to a state statute, to carry his reply to the paper’s editorial critical of his qualifications. The trial court held the act unconstitutional, denying both injunctive relief and damages. The State Supreme Court reversed, sustaining the statute against the challenge based upon the First and Fourteenth Amendments and remanding the case for a trial and appropriate relief, including damages. The newspaper brought the case here. We sustained our jurisdiction, relying on the principles elaborated in the North Dakota case and observing:
“Whichever way we were to decide on the merits, it would be intolerable to leave unanswered, under these circumstances, an important question of freedom of the press under the First Amendment; an uneasy and unsettled constitutional posture of § 104.38 could only further harm the operation of a free press. Mills v. Alabama, 384 U. S. 214, 221-222 (1966) (Douglas, J., concurring). See also Organization for a Better Austin v. Keefe, 402 U. S. 415, 418 n. (1971).” 418 U. S., at 247 n. 6.
In light of the prior cases, we conclude that we have jurisdiction to review the judgment of the Georgia Supreme Court rejecting the challenge under the First and Fourteenth Amendments to the state law authorizing damage suits against the press for publishing the name of a rape victim whose identity is revealed in the course of a public prosecution. The Georgia Supreme Court’s judgment is plainly final on the federal issue and is not subject to further review in the state courts. Appellants will be liable for damages if the elements of the state cause of action are proved. They may prevail at trial on nonfederal grounds, it is true, but if the Georgia court erroneously upheld the statute, there should be no trial at all. Moreover, even if appellants prevailed at trial and made unnecessary further consideration of the constitutional question, there would remain in effect the unre-viewed decision of the State Supreme Court that a civil action for publishing the name of a rape victim disclosed in a public judicial proceeding may go forward despite the First and Fourteenth Amendments. Delaying final decision of the First Amendment claim until after trial will “leave unanswered... an important question of freedom of the press under the First Amendment,” “an uneasy and unsettled constitutional posture [that] could only further harm the operation of a free press.” Tornillo, supra, at 247 n. 6. On the other hand, if we now hold that the First and Fourteenth Amendments bar civil liability for broadcasting the victim's name, this litigation ends. Given these factors — that the litigation could be terminated by our decision on the merits and that a failure to decide the question now will leave the press in Georgia operating in the shadow of the civil and criminal sanctions of a rule of law and a statute the constitutionality of which is in serious doubt — we find that reaching the merits is consistent with the pragmatic approach that we have followed in the past in determining finality. See Gillespie v. United States Steel Corp., 379 U. S. 148 (1964); Radio Station WOW, Inc. v. Johnson, 326 U. S., at 124; Mills v. Alabama, 384 U. S., at 221-222 (Douglas, J., concurring).
Ill
Georgia stoutly defends both § 26-9901 and the State’s common-law privacy action challenged here. Its claims are not without force, for powerful arguments can be made, and have been made, that however it may be ultimately defined, there is a zone of privacy surrounding every individual, a zone within which the State may protect him from intrusion by the press, with all its attendant publicity. Indeed, the central thesis of the root article by Warren and Brandéis, The Right to Privacy, 4 Harv. L. Rev. 193, 196 (1890), was that the press was overstepping its prerogatives by publishing essentially private information and that there should be a remedy for the alleged abuses.
More compellingly, the century has experienced a strong tide running in favor of the so-called right of privacy. In 1967, we noted that “[i]t has been said that a ‘right of privacy' has been recognized at common law in 30 States plus the District of Columbia and by statute in four States.” Time, Inc. v. Hill, 385 U. S. 374, 383 n. 7. We there cited the 1964 edition of Prosser's Law of Torts. The 1971 edition of that same source states that “[i]n one form or another, the right of privacy is by this time recognized and accepted in all but a very few jurisdictions.” W. Prosser, Law of Torts 804 (4th ed.) (footnote omitted). Nor is it irrelevant here that the right of privacy is no recent arrival in the jurisprudence of Georgia, which has embraced the right in some form since 1905 when the Georgia Supreme Court decided the leading case of Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S. E. 68.
These are impressive credentials for a right of privacy, but we should recognize that we do not have at issue here an action for the invasion of privacy involving the appropriation of one’s name or photograph, a physical or other tangible intrusion into a private area, or a publication of otherwise private information that is also false although perhaps not defamatory. The version of the privacy tort now before us — termed in Georgia “the tort of public disclosure,” 231 Ga., at 60, 200 S. E. 2d, at 130— is that in which the plaintiff claims the right to be free from unwanted publicity about his private affairs, which, although wholly true, would be offensive to a person of ordinary sensibilities. Because the gravamen of the claimed injury is the publication of information, whether true or not, the dissemination of which is embarrassing or otherwise painful to an individual, it is here that claims of privacy most directly confront the constitutional freedoms of speech and press. The face-off is apparent, and the appellants urge upon us the broad holding that the press may not be made criminally or civilly liable for publishing information that is neither false nor misleading but absolutely accurate, however damaging it may be to reputation or individual sensibilities.
It is true that in defamation actions, where the protected interest is personal reputation, the prevailing view is that truth is a defense; and the message of New York Times Co. v. Sullivan, 376 U. S. 254 (1964); Garrison v. Louisiana, 379 U. S. 64 ( 1964); Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967), and like cases is that the defense of truth is constitutionally required where the subject of the publication is a public official or public figure. What is more, the defamed public official or public figure must prove not only that the publication is false but that it was knowingly so or was circulated with reckless disregard for its truth or falsity. Similarly, where the interest at issue is privacy rather than reputation and the right claimed is to be free from the publication of false or misleading information about one's affairs, the target of the publication must prove knowing or reckless falsehood where the materials published, although assertedly private, are “matters of public interest.” Time, Inc. v. Hill, supra, at 387-388.
The Court has nevertheless carefully left open the question whether the First and Fourteenth Amendments require that truth be recognized as a defense in a defamation action brought by a private person as distinguished from a public official or public figure. Garrison held that where criticism is of a public official and his conduct of public business, “the interest in private reputation is overborne by the larger public interest, secured by the Constitution, in the dissemination of truth,” 379 U. S., at 73 (footnote omitted), but recognized that “different interests may be involved where purely private libels, totally unrelated to public affairs, are concerned; therefore, nothing we say today is to be taken as intimating any views as to the impact of the constitutional guarantees in the discrete area of purely private libels.” Id., at 72 n. 8. In similar fashion, Time, Inc. v. Hill, supra,, expressly saved the question whether truthful publication of very private matters unrelated to public affairs could be constitutionally proscribed. 385 U. S., at 383 n. 7.
Those precedents, as well as other considerations, counsel similar caution here. In this sphere of collision between claims of privacy and those of the free press, the interests on both sides are plainly rooted in the traditions and significant concerns of our society. Rather than address the broader question whether truthful publications may ever be subjected to civil or criminal liability consistently with the First and Fourteenth Amendments, or to put it another way, whether the State may ever define and protect an area of privacy free from unwanted publicity in the press, it is appropriate to focus on the narrower interface between press and privacy that this case presents, namely, whether the State may impose sanctions on the accurate publication of the name of a rape victim obtained from public records — more specifically, from judicial records which are maintained in connection with a public prosecution and which themselves are open to public inspection. We are convinced that the State may not do so.
In the first- place, in a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations. Great responsibility is accordingly placed upon the news media to report fully and accurately the proceedings of government, and official records and documents open to the public are the basic data of governmental operations. Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally. With respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice. See Sheppard v. Maxwell, 384 U. S. 333, 350 (1966).
Appellee has claimed in this litigation that the efforts of the press have infringed his right to privacy by broadcasting to the world the fact that his daughter was a rape victim. The commission of crime, prosecutions resulting from it, and judicial proceedings arising from the prosecutions, however, are without question events of legitimate concern to the public and consequently fall within the responsibility of the press to report the operations of government.
The special protected nature of accurate reports of judicial proceedings has repeatedly been recognized. This Court, in an opinion written by Mr. Justice Douglas, has said:
“A trial is a public event. What transpires in the court room is public property. If a transcript of the court proceedings had been published, we suppose none would claim that the judge could punish the publisher for contempt. And we can see no difference though the conduct of the attorneys, of the jury, or even of the judge himself, may have reflected on the court. Those who see and hear what transpired can report it with impunity. There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it.” Craig v. Harney, 331 U. S. 367, 374 (1947) (emphasis added).
See also Sheppard v. Maxwell, supra, at 362-363; Estes v. Texas, 381 U. S. 532, 541-542 (1965); Pennekamp v. Florida, 328 U. S. 331 (1946); Bridges v. California, 314 U. S. 252 (1941).
The developing law surrounding the tort of invasion of privacy recognizes a privilege in the press to report the events of judicial proceedings. The Warren and Brandéis article, supra, noted that the proposed new right would be limited in the same manner as actions for libel and slander where such a publication was a privileged communication: “the right to privacy is not invaded by any publication made in a court of justice... and (at least in many jurisdictions) reports of any such proceedings would in some measure be accorded a like privilege.”
The Restatement of Torts, § 867, embraced an action for privacy. Tentative Draft No. 13 of the Second Restatement of Torts, §§ 652A-652E, divides the privacy tort into four branches; and with respect to the wrong of giving unwanted publicity about private life, the commentary to § 652D states: “There is no liability when the defendant merely gives further publicity to information about the plaintiff which is already public. Thus there is no liability for giving publicity to facts about the plaintiff’s life which are matters of public record... The same is true of the separate tort of physically or otherwise intruding upon the seclusion or private affairs of another. Section 652B, Comment c, provides that “there is no liability for the examination of a public record concerning the plaintiff, or of documents which the plaintiff is required to keep and make available for public inspection.” According to this draft, ascertaining and publishing the contents of public records are simply not within the reach of these kinds of privacy actions.
Thus even the prevailing law of invasion of privacy generally recognizes that the interests in privacy fade when the information involved already appears on the public record. The conclusion is compelling when viewed in terms of the First and Fourteenth Amendments and in light of the public interest in a vigorous press. The Georgia cause of action for invasion of privacy through public disclosure of the name of a rape victim imposes sanctions on pure expression — the content of a publication — and not conduct or a combination of speech and nonspeech elements that might otherwise be open to regulation or prohibition. See United States v. O’Brien, 391 U. S. 367, 376-377 (1968). The publication of truthful information available on the public record contains none of the indicia of those limited categories of expression, such as “fighting" words, which “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942) (footnote omitted).
By placing the information in the public domain on official court records, the State must be presumed to have concluded that the public interest was thereby being served. Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media. The freedom of the press to publish that information appears to us to be of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business. In preserving that form of government the First and Fourteenth Amendments command nothing less than that the States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection.
We are reluctant to embark on a course that would make public records generally available to the media but forbid their publication if offensive to the sensibilities of the supposed reasonable man. Such a rule would make it very difficult for the media to inform citizens about the public business and yet stay within the law. The rule would invite timidity and self-censorship and very likely lead to the suppression of many items that would otherwise be published and that should be made available to the public. At the very least, the First and Fourteenth Amendments will not allow exposing the press to liability for truthfully publishing information released to the public in official court records. If there are privacy interests to be protected in judicial proceedings, the States must respond by means which avoid public documentation or other exposure of private information. Their political institutions must weigh the interests in privacy with the interests of the public to know and of the press to publish. Once true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it. In this instance as in others reliance must rest upon the judgment of those who decide what to publish or broadcast. See Miami Herald Publishing Co. v. Tornillo, 418 U. S., at 258.
Appellant Wassell based his televised report upon notes taken during the court proceedings and obtained the name of the victim from the indictments handed to him at his request during a recess in the hearing. Appel-lee has not contended that the name was obtained in an improper fashion or that it was not on an official court document open to public inspection. Under these circumstances, the protection of freedom of the press provided by the First and Fourteenth Amendments bars the State of Georgia from making appellants’ broadcast the basis of civil liability.
Reversed.
Mr. Chief Justice Burger concurs in the judgment.
“It shall be unlawful for any news media or any other person to print and publish, broadcast, televise, or disseminate through any other medium of public dissemination or cause to be printed and published, broadcast, televised, or disseminated in any newspaper, magazine, periodical or other publication published in this State or through any radio or television broadcast originating in the State the name or identity of any female who may have been raped or upon whom an assault with intent to commit rape may have been made. Any person or corporation violating the provisions of this section shall, upon conviction, be punished as for a misdemeanor.”
Three other States have similar statutes. See Fla. Stat. Ann. §§794.03, 794.04 (1965 and Supp. 1974-1975); S. C. Code Ann. § 16-81 (1962); Wis. Stat. Ann. §942.02 (1968). The Wisconsin Supreme Court upheld the constitutionality of a predecessor of §942.02 in State v. Evjue, 253 Wis. 146, 33 N. W. 2d 305 (1948). The South Carolina statute was involved in Nappier v. Jefferson Standard Life Insurance Co., 322 F. 2d 502, 505 (CA4 1963), but no constitutional challenge to the statute was made. In Hunter v. Washington Post, 102 Daily Washington L. Rptr. 1561 (1974), the District of Columbia Superior Court denied the defendant's motion for judgment on the pleadings based upon constitutional grounds in an action brought for invasion of privacy resulting from the defendant’s publication identifying the plaintiff as a rape victim and giving her name, age, and address.
Wassell was employed at the time in question as a news staff reporter for WSB-TY and had been so employed for the prior nine years. His function was to
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
sc_caseorigin
|
046
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
UNITED STATES DEPARTMENT OF STATE, BUREAU OF CONSULAR AFFAIRS, et al. v. LEGAL ASSISTANCE FOR VIETNAMESE ASYLUM SEEKERS, INC., et al.
No. 95-1521.
Argued October 15, 1996
Decided October 21, 1996
Deputy Solicitor General Kneedler argued the cause for petitioners. With him on the briefs were Acting, Solicitor General Dellinger, Assistant Attorney General Hunger, Paul R. Q. Wolfson, Michael Jay Singer, and Robert M. Loeb.
Daniel Wo If argued the cause for respondents. With him on the briefs were William R. Stein and Robert B. Jobe.
Per Curiam.
The judgment is vacated, and the case is remanded to the United States Court of Appeals for the District of Columbia Circuit for further consideration in light of § 633 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (enacted as Division C of the Omnibus Consolidated Appropriations Act, 1997, Pub. L. 104-208, 110 Stat. 3009-701).
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
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065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
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071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
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074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
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088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
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099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
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114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
|
songer_circuit
|
F
|
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.
U. S. FIBRES, INC., a Michigan Corporation, Plaintiff-Appellant and Cross-Appellee, v. PROCTOR & SCHWARTZ, INC., a Pennsylvania Corporation, Defendant and Third-Party Plaintiff-Appellee and Cross-Appellant, v. U. S. EQUIPMENT COMPANY, a Michigan Corporation Third-Party Defendant-Appellant and Cross-Appellee.
Nos. 73-2091 to 73-2093.
United States Court of Appeals, Sixth Circuit.
Jan. 17, 1975.
William H. Merrill, Detroit, Mich., Paul L. Nine, Carl J. Marlinga, Warren, Mich., for plaintiff-appellant.
Neill T. Peters, F. R. Damm, Detroit, Mich., for defendant-appellee.
Before CELEBREZZE and LIVELY, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
LIVELY, Circuit Judge.
In this diversity action the purchasers of manufacturing equipment sued the seller-manufacturer for damages. The plaintiffs sought to recover for alleged breach of express and implied warranties, fraud and negligence. In its counterclaim the defendant sought recovery on an account, which was undisputed, and damages allegedly incurred by it as the result of fraudulent misrepresentations of the plaintiffs. Following two lengthy hearings the district court entered judgment in favor of the defendant on all claims of the plaintiffs and on the stated account. The counterclaim based on fraud was dismissed. We affirm.
A complete statement of the facts and legal issues as developed in the district court is set forth in its opinions which are reported at 358 F.Supp. 449 and 358 F.Supp. 467. In dealing with the appeal we will attempt to avoid unnecessary repetition of matters covered in the reported opinions. The plaintiffs will be referred to as Fibres and the defendant as Proctor. The Uniform Commercial Code (UCC) applies to the transactions between the parties and they provided that the law of Pennsylvania governs the construction and interpretation of their written agreements. The various issues on appeal will be treated separately, though briefly, in view of the extended treatment of each by the district court.
The two contracts clearly contained an express warranty against defects in materials or workmanship. Proctor spent large sums in replacing and reworking portions of the equipment which were admittedly defective. However, Fibres maintains that other express warranties were created by detailed description of the ovens in the typewritten portion of the contracts and that these warranties could not be excluded by inconsistent disclaimer language appearing in later printed portions of the contracts. This argument overlooks the fact that both contracts, in the typewritten portions and before the description of the ovens, under the heading PERFORMANCE, provided that “in view of the variables present effecting (sic) the capacity of the machine, no guarantee can be extended.” Immediately following this disclaimer was a statement that “the Company’s standard warranty outlined later in this contract does apply.” The printed warranty clause, identical in both contracts, was as follows:
LIABILITY CLAUSE: The Companys liability hereunder shall be subject to the following:
General:
1. The Company warrants the machine against defects in materials or workmanship, but makes no other warranties, express or implied (except as set forth under “Patents”) unless the word “guarantee” is used. Warranties of merchantability or of fitness for a particular purpose or arising from a course of dealing or usage of trade, are specifically excluded. The Purchaser agrees that any affirmations of fact, description of the machine or sample or model machine herein referred to, whether or not the same relate to production or capability of the machine to perform, are not the basis of this contract, unless the word “guarantee” is used in connection therewith, in which case the same shall be express warranties.
Between the two disclaimers was the description upon which Fibres relies for its claim of express warranties. In the first contract the pertinent language was: “This conveyor is especially designed to hold a tolerance of ± 1/32" across the width of the batt, based on a 30 pound per square foot compressive force.” The second contract stated that —-“This conveyor is especially designed with a deflection tolerance of ± 1/32" across each conveyor plate. This deflection is further based on a uniformly distributed load of 30 pounds per sq. ft.” It is provided in UCC § 2-313(l)(b) that “[a]ny description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.” Exclusion of express warranties is permissible under § 2 — 316(1) of the UCC, which provides that language or conduct creating warranties and that tending to negate them “shall be construed wherever reasonable as consistent with each other. . . . ”
If the machinery involved had been tried and proven in the manufacturing process in which Fibres intended to employ it, or if it had been sold by specification alone, the description might be held to create an express warranty. S — C Industries v. American Hydroponics System, Inc., 468 F.2d 852 (5th Cir. 1972). However, the evidence fully supports the finding of the district court that the parties were attempting to put together a combination of machinery to fabricate a product by an “unproven process.” Furthermore, the general manager of Fibres, Mr. Steuernagel, was fully aware of the “variables” referred to in the disclaimer of guarantee of performance. The language of description referred only to the expectations of the designers and in no way guaranteed that these expectations would be met. Furthermore, there is substantial evidence that executives of Fibres who participated in the purchase of the equipment never expected it to produce finished pads having a thickness tolerance of ± 1/32 inch across their width. Thus, this descriptive language was not “part of the basis of the bargain.” UCC § 2-313(l)(b). The district court correctly determined that the language which excluded an express warranty was not inconsistent with the language of description, UCC § 2-316(1), and gave it effect.
Fibres contends that it was entitled to recover under implied warranties of fitness for a particular purpose and of merchantability. An implied warranty of fitness for a particular purpose exists only “[w]here the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods . . ..” UCC § 2-315. There is abundant factual support in the record for the district court’s finding that Fibres, acting through its agent Steuernagel, did not rely on Proctor’s skill or judgment in selection of the equipment with which it proposed to make dry resinated pads by Steuernagel’s new “secret process.” Therefore, there could be no implied warranty of fitness.
Reliance upon the seller is not a requirement in the case of implied warranties of merchantability. If the seller is a “merchant,” such a warranty is implied in every contract for the sale of goods “[u]nless excluded or modified.” UCC § 2-314. This warranty may be excluded only by language which mentions merchantability and is conspicuous. UCC § 2 — 316(2). The exclusion in this case, which was contained in the previously quoted liability clause, used the word “merchantability.” Thus, the question is whether this disclaimer was “conspicuous” as defined in UCC § 1 — 201(10):
(10) “Conspicuous”: A term or clause, is conspicuous when it is so written that a reasonable person against whom it is to operate ought to have noticed it. A printed heading in capitals (as: Non-Negotiable Bill of Lading) is conspicuous. Language in the body of a form is “conspicuous” if it is in larger or other contrasting type or color. But in a telegram any stated term is “conspicuous.” Whether a term or clause is “conspicuous” or not is for decision by the court.
Fibres relies principally on Boeing Airplane Co. v. O’Malley, 329 F.2d 585 (8th Cir. 1964), which applied Pennsylvania law in holding that a disclaimer “in the same color and size of other type used for the other provisions” of a contract was not conspicuous. Id. at 593. In that case the court was dealing with a warranty of fitness for a particular purpose rather than one of merchantability. A fundamental question was the meaning of “as is” in the dealings between the parties. In the present case the heading under which the disclaimer appeared met the requirement of § 1— 201. Neither in Boeing, supra, nor in the Pennsylvania cases relied on by Fibres, is it clear that the court considered contracts in which a heading in bold-type capital letters of the same size as all other headings, appeared at the beginning of the exclusion clause. We do not read these cases as holding the Pennsylvania rule to be that there can be no disclaimer as a matter of law if type of the same color and size is used in the text even though the heading is in capital letters.
It is significant that the official UCC comments under Section 1 — 201(10) state—
10. “Conspicuous.” New. This is intended to indicate some of the methods of making a term attention-calling. But the test is whether attention can reasonably be expected to be called to it.
As we have pointed out, near the beginning of each contract, in the typed portion where guarantee of performance was excluded, there was a reference to “the Company’s standard warranty outlined later in this contract.” From exhibits introduced by Proctor it is clear that the liability clauses of the contracts were scrutinized with care by Fibres. One examining these contracts was put on notice by the early disclaimer of performance that only the standard warranty of Proctor applied. The testimony of Fibres executives was that they were familiar with the contents of the printed portions of the contract. There was no surprise. Knowing that they were employing an untried combination of components, which had been successfully operated separately but not together, in an attempt to produce a familiar product by a new process, the principals of Fibres could not realistically have expected Proctor to extend the warranties which they now claim. Under the facts of this case the district court correctly held that attention could reasonably be expected to be called to the disclaimer. Conspicuousness is a question of law for the court. Adams Van Service, Inc. v. International Harvester Corp., Pa. Court of Common Pleas, Allegheny County (1973), 14 UCC Rep. Serv. 1142.
In denying Fibres’ claim based on fraud the district court found that Proctor made no material misrepresentations of fact. Upon conflicting evidence the court determined that it had never been the intention or understanding of the parties that Proctor guaranteed that the equipment would produce pads of uniform thickness. Having had no experience with this particular operation, Proctor could only give an opinion as to how the equipment would perform. Furthermore, the claim of Fibres that Proctor concealed its knowledge from Fibres that the equipment would not produce pads of uniform thickness is not borne out by the record. Fibres officials Clapp and Steuernagel testified that Proctor’s chief inspector told them before production began that he did not believe it was possible to maintain a tolerance of 1/32 inch across the pads with the type conveyor that was being used. When Christianson, a sales representative of Proctor, referred to this tolerance it was never with reference to the finished product. He described the success of the dryer in a different procedure and predicted similar results using Steuernagel’s “secret process.” This and other evidence relied upon by Fibres fell far short of establishing the elements necessary for proof of fraud.
All of the foregoing issues were decided by the district court on a motion for an involuntary dismissal under Rule 41(b), Fed.R.Civ.P. The court incorporated findings of fact in its opinion granting the motion, and we apply the “clearly erroneous” standard of review prescribed by Rule 52(a). Though there was a great deal of conflict in the testimony of witnesses, the findings of the district court are supported by substantial evidence and may not be set aside by this court. Furthermore, no erroneous application of rules of law to these facts has been demonstrated by Fibres.
Following the second hearing the district court made a finding of no actionable negligence on the part of Proctor. The recitation by the court of numerous problems encountered by Fibres in attempting to produce satisfactory batting is not inconsistent with this finding as Fibres contends. At the request of Fibres these problems were treated as defects in materials or workmanship and were remedied by Proctor at its own expense. Once these extended repairs were completed the ovens operated properly until Fibres went out of business. In finding that Proctor was not negligent either in design or manufacture the District Judge made a detailed analysis of the design and manufacture of the equipment. The finding is not clearly erroneous and may not be set aside by this court.
Having found no negligence on the part of Proctor the court had to consider the issue of contributory negligence only as it related to Proctor’s counterclaim. The evidence clearly supports the finding that as early as June, 1966 Fibres seriously overloaded the equipment. However, the court also found that there was no proof that either party realized at the time that overloading was occurring. It therefore held that Fibres had no duty to advise Proctor of this fact. Since Proctor’s counterclaim was based on the claim that Fibres’ failure to inform it of the overloading constituted fraud, no recovery was allowed. In view of these holdings it is clear that no damages were withheld from Fibres or awarded to Proctor by the district court on the basis of its findings with respect to overloading the equipment. Thus the extensive discussion in briefs of the existence and extent of overloading is immaterial in view of our conclusion that the district court’s findings on the negligence claim and the counterclaim for fraud must stand.
This court’s determination that the district court correctly denied any recovery by Fibres renders extended discussion of the clauses which limited damages under the contracts unnecessary. However, we note that UCC § 2-719 permits limitation or exclusion of consequential damages so long as it is not unconscionable. Unconscionability rarely exists in a commercial setting involving parties of equal bargaining power. County Asphalt, Inc. v. Lewis Welding & Engineering Corp., 323 F.Supp. 1300 (S.D.N.Y.1970), aff’d, 444 F.2d 372 (2d Cir.), cert. denied, 404 U.S. 939, 92 S.Ct. 272, 30 L.Ed.2d 252 (1971). See also Cryogenic Equipment, Inc. v. Southern Nitrogen, Inc., 490 F.2d 696 (8th Cir. 1974); K & C, Inc. v. Westinghouse Electric Corp., 437 Pa. 303, 263 A.2d 390 (1970), 7 UCC Rep.Serv. 679.
The record supports the district court’s finding that “ . . . there was uneven resin distribution in much of plaintiff’s product.” Such uneven resin distribution explained the lack of uniform thickness in the pads, according to credited testimony. Thus, even if it were held that express and implied warranties existed with respect to the thickness tolerance of the pads or that Proctor did misrepresent the capability of the equipment to produce pads of uniform thickness, Proctor’s derelictions would not have been the cause of Fibres’ claimed losses. The one component of the entire production line that was clearly the responsibility of Fibres was the “lawn fertilizer spreader” which introduced dry resin into the cotton fibres to produce dry resinated pads. As the district court noted, the dryer “only receives what is fed into it.” If Steuernagel’s method of introducing the resin in this manner failed to produce an even distribution and this failure sufficiently explains the uneven thickness of the finished pads, the deficient result cannot be charged to Proctor under any theory of law.
Separate appendices were filed by the parties to this appeal. Rule 30 of the Federal Rules of Appellate Procedure provides for a single appendix. Furthermore, the brief of appellants exceeded the length permitted by Rule 28(g), Fed. R.App.P. Failure to follow these rules results in an unwarranted burden on the court.
Affirmed on appeal and cross-appeal. Each party will bear its own costs.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_majvotes
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3
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes.
CENTRAL STATES LIFE INS. CO. v. KOPLAR CO.
No. 10381.
Circuit Court of Appeals, Eighth Circuit.
Dec. 17, 1935.
Rehearing Denied Feb. 5, 1936.
R. H. Me Roberts, of St. Louis, Mo. (Frank Y. Gladney, Jones, Hocker, Gladney & Jones, and Bryan, Williams, Cave & McPheeters, all of St. Louis, Mo., on the brief), for appellant.
B. L. Liberman, of St. Louis, Mo. (Robert Burnett, Henry H. Stern, and Burnett, Stern & Liberman, all of St. Louis, Mo., on the brief), for appellee.
Before GARDNER, WOODROUGII, and FARIS, Circuit Judges.
FARIS, Circuit Judge.
The controversy involved in this appeal arose out of a proceeding under section 77B of the Bankruptcy Act, Section 207, title 11, U.S.C.A. This section deals with the reorganization of business corporations, except such railroads as are dealt with under the provisions of section 205, title 11, U.S.C.A.
The appellee, the Koplar Company (hereinafter for brevity’s sake called appellee, simply), is a corporation under the laws of the state of Delaware, duly licensed to do business in the state of Missouri, wherein at St. Louis it constructed (and now holds the title of record to certain parcels of land and the four certain buildings thereon, called in the instant record) the Park Plaza Hotel, the Congress Hotel, the Senate Apartments, and the Embassy Apartments. Other properties are likewise so held by appellee, but these cut only a negligible figure in the case, and so need no particular mention.
On June 29, 1934, appellee duly filed its amended voluntary petition as a corporate debtor under the provisions of section 77B, supra. No trustee was appointed, but the debtor remained in possession, pursuant to the provisions of subdivision (c) of section 77B, supra. This possession was constructively that of a trustee duly appointed by the court, and was actual, except as is hereinafter noted.
Thereafter, and on March 5, 1935, a plan and an amended plan of reorganization were filed by the debtor, and on the same day an order was entered classifying the creditors. A motion to modify the classification of creditors was filed by appellant, and this motion was pending when this appeal was taken.
Appellant, a life insurance company, organized as a corporation under the laws of the state of Missouri, on April 5, 1935, filed its intervening petition in this proceeding and in the bankruptcy court, in which it set up among other things that it is the owner of $3,070,000, par value of 6 per cent, gold bonds scries A, out of a total issue of $3,100,000 par value of said series; that said bonds are secured by a deed of trust, executed by the debtor, which deed of trust also secures an issue of $550,000 par value 7 per cent, bonds of series B, junior in lien to series A; that said deed of trust was a lien on the land and buildings known as the Park Plaza Hotel, and the furniture, fixtures, and furnishings situate therein (the latter by virtue of a chattel deed of trust) ; that said series A bonds were and long had been in default; that the corporate trustee in said issues of bonds had refused to longer act as such and had resigned; that said properties embraced in the trust deed were subject to a second deed of trust securing an issue of $1,250,000, 7 per cent, bonds, of which $1,090,000 were outstanding; that the debtor does not have, and does not claim to have, any equity in said mortgaged property over and above th.e first and second mortgage indebtedness; that it is admitted by the plan of reorganization filed herein by the debtor that the holders of the second mortgage bonds have a claim against the debtor in excess of the value of their security ; that the net operating income from the mortgaged properties is insufficient to make the payments required to be made on series A of said bonds; that lacking any equity in said mortgaged properties for the creditor, the properties are a burden upon the estate, and as a conclusion of law the proposed intervener, appellant herein, is entitled to have any deficit over and above the value of its security liquidated and allowed as a general claim.
It is further averred by appellant, also as a conclusion of law, that upon the facts set up in its intervening petition, it is entitled to have the amount of such deficit, over and above the value of the security held by it, determined by a sale of the mortgaged properties pursuant to the terms of the deed of trust which secures the bonds held by it, to the end that it may have established the sum due it as a general creditor.
Upon the above facts and others, which will be set forth in course of the discussion, if they shall become pertinent, appellant in its intervening petition prayed that it might be permitted to intervene, and therein for orders—
“First, your petitioner to appoint a Successor Corporate Trustee in accordance with the terms and provisions of said first mortgage deed of trust as supplemented by said chattel mortgage, if it shall elect to do so;
“Second, your petitioner, at its option, to either cause the said Successor Individual Trustee, and such Successor Corporate Trustee, to sell at public auction the aforesaid mortgaged property in accordance with the power of sale contained in said first mortgage deed of trust, as supplemented by said chattel mortgage, or to cause said Trustees to institute a proceeding or proceedings -at law or in equity for the foreclosure of the lien of said first mortgage deed of trust, as supplemented by said chattel mortgage, or, after giving notice in writing to the said Trustee or Trustees as provided in said deed of trust, as supplemented by said chattel mortgage, to itself institute a proceeding at law or in equity for the foreclosure there of;
“Third, said Trustees or your petitioner to join as- a party defendant in any suit at law or in equity which may be instituted for the foreclosure of the lien of said first deed of trust, in addition to all other necessary or proper parties, the debtor herein and any Trustee or Trustees of the debtor’s estate who may be hereafter appointed by this Court in this proceeding, and any Trustee or Trustees in bankruptcy who may hereafter be appointed, as provided in section 44 of said General. Bankruptcy Act of 1898, as Amended, if an order of liquidation shall hereafter be entered herein; and for such further order or orders as may be meet and proper in the premises.”
The debtor, appellee herein, opposed the intervention, a hearing was had, and evidence heard which tended to prove that the debtor held the record title to six certain parcels of land on which valuable improvements existed. Four of these are those already mentioned. In addition, it held title to certain two residences on Lindell avenue in the city of St. Louis. It also owned all of the capital stock of a realty company, which had a contract to purchase, from a wholly owned subsidiary of appellant, some seven other apartment buildings. But this contract seems tq cut no figure in this case, and so may be eliminated from the discussion.
The Park Plaza Hotel is called in the record a monumental structure, built in 1929, at a cost, including site, furniture, and fixtures, of $4,656,508, exclusive of architect’s fees and commissions. It is encumbered by a first deed of trust in which one George Graham, substituted individual trustee, is now the only remaining trustee, the corporate trustee, having as already stated resigned, and no successor to it having been appointed. This deed of trust secures a bond issue in the sum of $3,070,000, of series A bonds as already said, all owned by appellant, of which said George Graham is president. All of series B bonds have been canceled of record. Series A bonds are further secured by a mortgage on the furniture and fixtures, as already indicated.
The above-named properties are also encumbered by a second deed of trust securing a further issue of bonds, of which $1,090,000 par value 7 per cent, bonds are outstanding.
All of the above bonds are in default, and Graham, as trustee in the deed of trust, is now, and since at least the 5th day of March, 1934, has been, in possession of the Park Plaza Hotel properties, pursuant to the following resolution of debtor’s board of directors, to wit: “Resolved, that in order to save expense it is for the best interests of The Koplar Company to have George Graham as Successor Individual Trustee remain in sole possession of the Park Plaza property as Trustee under the first deed of trust of The Koplar Company dated February 1, 1930, without having a Corporate Trustee appointed under said deed of trust to take joint possession with him, and the officers of this corporation are hereby authorized and instructed to request the Central States Life Insurance Company not to appoint or apply for the appointment of a Successor Corporate Trustee under said deed of trust unless and until the Central States Life Insurance Company shall deem it necessary or advisable so to do.”
The Congress and Senate properties are encumbered by a deed of trust, securing an issue of bonds, of which $1,795,000 par value 6% per cent. bonds are outstanding. These bonds are also in default, and the trustees in the deed of trust are likewise in possession of the Congress and Senate properties. .
The Embassy properties are encumbered by a deed of trust securing an issue of bonds of the par value of $544,000, and the trustees in the deed of trust are in possession.
The two residences above mentioned are encumbered by a mortgage in the sum of $85,000. In addition to the secured debts above set out, the debtor has claims against it in favor of general and unsecured creditors in the aggregate sum of about $200,000.
In the debtor’s voluntary petition filed herein, it averred that it had a substantial equity in each of the above-mentioned properties. In its plan of reorganization, it deals alone specifically with the Embassy, and the Congress and Senate properties. It says as to the bonds held by the appellant, to wit, $3,070,000 par value, evidenced by the series A bonds and secured by the first deed of trust, that “the claims of the bondholders does not exceed the value of their security.” This is the reason set out in the plan of reorganization for making no specific provision for the Park Plaza Hotel. Concerning the bonds secured by the second deed of trust on the Park Plaza Hotel, to wit, the $1,090,000 par value 7 per cent, bonds, the plan says, in effect, that the bondholders have not sufficient security and a deficiency judgment as general unsecured creditors, for the deficit, must be taken care of. The amount of such deficit has not yet been ascertained.
In this situation, and before any action had-been taken on the proposed plan of reorganization and while a motion of appellant to modify the order classifying creditors was pending, this appeal was taken. The appeal is from an order denying the appellant leave to foreclose its deed of trust on the Park Plaza Hotel properties, and is bottomed on the propositions: (a) That since the first liens of appellant are valid and indisputed, (b) since the debtor has no equity in the above properties over and above the first and second deeds of trust thereon, and (c) since said properties are therefore burdens on the estate of the bankrupt, appellant has an absolute right to foreclose under the provisions of section 77B, outside of the bankruptcy court, and so the denial of this right of foreclosure by the court nisi was error. And this denial is the sole error urged for reversal.
It may be conceded that if the case involved a proceeding under the Bankruptcy Act of 1898, unmodified and unaffected by the amendments made thereto by the provisions of section 77B, it would be difficult, under fairly well-settled law, to avoid the conclusion urged on us by the appellant. For present the basic elements, (a) that the deed of trust (or other similar lien) is valia and unquestioned; (b) that the fair market value of the mortgaged premises is of less, or no greater value, than the amount of principal and interest (and costs, if made preferred by the lien’s terms) of the debt secured; and (e)- (as a sort of corollary) that the care and administration of the mortgaged premises, offering no probability of equity for the creditors, will be burdensome to the bankrupt estate, the bankruptcy court has the power to enter an order permitting the trustee of the bankrupt estate to abandon the encumbered property, and thus leave the mortgagee to work his will thereon pursuant to the terms of the lien instrument and the general law. Quinn v. Gardner (C.C.A.) 32 F.(2d) 772, 773; Hobbs Tie & Timber Co. v. Isaacs (C.C.A.) 61 F.(2d) 1006; Powers v. Johnson (C.C.A.) 71 F.(2d) 48, 55; Kimmel v. Crocker (C.C.A.) 72 F.(2d) 599, 601; In re Kirk (D.C.) 4 F.Supp. 328; First National Bank v. Lasater, 196 U.S. 115, 25 S.Ct. 206, 49 L.Ed. 408; In re Coney Island Hotel Corp. (C.C.A.) 76 F.(2d) 126; In re Civic Center Realty Co. (D.C.) 26 F.(2d) 825; In re Schulte United, Inc., (D.C.) 50 F.(2d) 243, 244; In re Olivit Bros. Inc., (D.C.) 57 F.(2d) 718; Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 55 S.Ct. 854, 79 L. Ed. 1593, 97 A.L.R. 1106; Mortgage Loan Co. v. Livingston (C.C.A.) 78 F.(2d) 517.
On the threshold, we are met by the contention of the appellee that regardless of whether the rule above stated has been modified or abrogated by the provisions of section 77B, supra, under which the proceeding at bar is being administered, appellant yet had no right to intervene or to demand an order permitting it to foreclose. This contention is bottomed on the fact that appellant had not at all complied with the terms of the deed of trust, for that such instrument vested the power to foreclose in the,trustees in the deed of trust and not in the bondholders, except under a situation, not at all present here.
The provision of the deed of trust, upon which the above contention rests, reads thus: “It is hereby declared and agreed as a condition upon which each legal holder or holders of all or any of said bonds receives and holds the same, that no holder or holders of any of said bonds or coupons shall have the right to institute any proceeding in law or in equity, of whatever character or kind for the foreclosure of this deed of trust or for the execution of the trusts herein provided, or for the appointment of a receiver, or for any other remedy under this instrument, or for enforcing the lien hereby created, without having first made application to the Trustees, as herein-before provided, and unless the.Trustees shall have wrongfully or unreasonably failed to institute proceedings for the foreclosure of this deed of trust, or for the execution of the trusts hereunder, or for the appointment of a receiver, or for any other remedy under this deed of trust or for enforcing the lien hereby created, as the case may be, for sixty (60) days after the giving of notice in writing to the Trustees so to do. All rights of action under this deed of trust are hereby vested in the Trustees herein, subject only to the provisions of this Section 1 of Article IV hereof, and may be enforced by them in their discretion without the possession of any of the bonds or coupons or the production thereof on any trial or proceeding hereunder.”
No effort was made by appellant to comply in any wise with the above-quoted provision of the deed of trust; but without doing so, it prayed that it might make certain elections touching the matter and manner of foreclosure, if it desired to do so. There was then and there is now no corporate trustee. And the individual trustee was then and is now the president of appellant. Obviously no objection to his serving as such trustee or personally moving in the matter of foreclosure could be urged by appellant which holds all of the outstanding bonds secured by the first mortgage.
By the express provisions of the deed of trust the power to foreclose was taken away from the bondholders and from any and all of them and conferred on the trustees; subject, of course, to exceptions nowhere appearing in this case. The rule in such a situation, that the bondholders may not themselves act to foreclose, seems fairly well settled everywhere; but especially has this rule been rather uniformly adhered to in this court. Central West Public Service Co. v. Craig (C.C.A.) 70 F.(2d) 427; Carson v. Long-Bell Lumber Corp. (C.C.A.) 73 F.(2d) 397; Allan v. Moline Plow Co. (C.C.A.) 14 F.(2d) 912; Palmer v. Bankers’ Trust Co. (C.C.A.) 12 F.(2d) 747. Indeed, the identical rule is recognized and enforced in the great majority of jurisdictions throughout this nation. See note to Baltimore v. United Railways & Electric Co., 16 L.R.A. (N.S.) 1006; Home Mortgage Co. v. Ramsey (C.C.A.) 49 F.(2d) 738; Rodman v. Oil Co. (C.C.A.) 66 F.(2d) 244; Craig v. Consolidated Cement Corp. (C.C.A.) 69 F.(2d) 613.
The reason for the rule is not far to seek. If in' a mortgage securing thousands of bonds every holder of a bond or bonds were free to sue at will for himself and for others similarly situated, the resulting harassment and litigation would be not only burdensome but intolerable.
True, the peculiar and particular facts of the instant case seem here to render this contention of appellee highly technical. But be this as may be, the sole bondholder here bought the bonds saddled with the knowledge of the provision above quoted. And the very facts of the case rendered compliance easy and simple, and deprived the bondholder of any legal excuse for not calling on the trustee to act. So it seems clear that absent plea and proof, as here, of any fact which would excuse compliance by the bondholder with the contractual duty of first applying to the trustees, or residual trustee to take action, it had no right to bring the intervention. If it were necessary to appoint a corporate trustee to the existing vacancy in that office, appellant had the power under the plain terms of the mortgage to do this without even resorting to a court of general jurisdiction for such order of appointment. There were no formal pleadings in opposition to the proposed intervention, nor does the order denying it disclose on what ground denial was bottomed.
Since this is so, and since, in the view we are constrained to take of the case, appellant’s proper representatives should have the right, when and if the situation shall warrant, to again apply for leave to foreclose, it is proper to deal briefly with the time and conditions at, and under which such right may be exercised. Hobbs Tie & Timber Co., v. Isaacs (C.C.A.) 61 F.(2d) 1006.
For the major part the cases urged on us as controlling arose under the Bankrupt Act (11 U.S.C.A.) as it stood prior to the enaction of section 77B. It is not only •clear, but there is controlling authority for the view, that the above section worked a rather radical change in the law on the precise question before us here. Continental Illinois Nat. Bank v. Chicago, Rock Island & P. R. Co., 294 U.S. 648, 55 S.Ct. 595, 79 L.Ed. 1110.
In the above case, it was said (294 U.S. 648, at page 676, 55 S.Ct. 595, 606, 79 L.Ed. 1110) : “It may be that in an ordinary bankruptcy proceeding the issue of an injunction in the circumstances here presented would not be sustained. As to that it is not necessary to express an opinion. But a proceeding under section 77 (11 U.S.C.A. § 205) is not an ordinary proceeding in bankruptcy. It- is a special proceeding which seeks only to bring about a reorganisation, if a satisfactory plan to that end can be devised. And to prevent the attainment of that object is to defeat the very end the accomplishment of which was the sole aim of the section, and thereby to render its provisions futile.”
It must of course be conceded that the bankruptcy court may not close its eyes to hurtful results which may directly ensue from a denial of foreclosure outside the court and according to the terms of the lien, instrument. But as said in the Chicago, Rock Island & P. R. Co. Case, supra, the matter of granting permission to foreclose • outside of the bankruptcy court and without regard to any plan of reorganization, present or future, “is addressed not to the power of the court, but to its discretion — a matter not subject to the interference of an appellate court unless such discretion be improvidently exercised.”
It is obvious therefore that the sole question on the phase under discussion in the case at bar is whether, in refusing to appellant the right to foreclose at the time and stage of the proceeding at which appellant made the application, the discretion exercised by the court nisi was a sound judicial discretion. The answer depends upon the facts and situation before the court when it made the order in controversy; for the Supreme Court, discussing section 57 (h) of the Bankrupt Act, section 93 (h), title 11, U.S.C. (11 U.S.C.A.) § 93 (h), herein much relied on by appellant, said: “Nor does section 57h, 11 U.S.C. § 93 (h), 11 U.S.C.A. § 93 (h), also invoked by petitioners, have any pertinent application to the question under discussion in the light of the provisions, purpose and aim of section 77 [11 U.S.C.A. § 205].” It is of course to be held in mind that the Supreme Court was discussing the railroad reorganization amendment, when it used the language above quoted; but it seems clear that so far as concerns “purpose and aim,” the analogy between section 77 and section 77B (11 U.S.C.A. §§ 205, 207) is absolute and thorough-going. And so what is said of the one must in the main apply to the other. Let the facts be looked to.
The record shows that when the order here complained of by the appellant was entered, a plan of reorganization was pending, undisposed of; likewise a motion made by appellant to reclassify creditors was pending. The record discloses that there would not be any equity for any other creditor, secured or unsecured, in the Park Plaza Hotel, over and above the sums due on the first, the supplemental chattel, and second mortgages thereon, and even as to the second, mortgage there would be a deficit, whereof the amount had not yet been ascertained. The trend of the hardly disputed evidence was that it would cost now to reproduce the Park Plaza Hotel well-nigh what it cost to build and furnish it in 1929 when it was constructed. And so the estimated fair value of the hotel and its fur"nishings exceeds by $500,000 the aggregate of outstanding bonds in both the first and second mortgages. The evidence conclusively showed that there is now, that is when the order was entered, no market whatever for this hotel. So, it is not difficult to see that if sold now, no one except appellant could be or would be a bidder at such sale, and an unnecessary sacrifice of value would occur, with the result that the deficiency to be allowed in favor of appellant as a general creditor would be shockingly unjust to the estate and to other unsecured creditors, as also to the holders of bonds secured by the second mortgage. Even by the proposed plan pending before the court, the claims of these latter bondholders were not definitely fixed. As to them the proposed plan merely said: “The holders of the said second mortgage bonds have claims against the debtor in excess of the value of their securities. The amounts of their claims should be determined and adjudicated in the proceedings herein in accordance with the provisions of section 77B, of the amendment to the Bankruptcy Act. When the amounts of the claims of the second mortgage bondholders in excess of their securi- ■ ties have been thus determined, the said claims will be treated as claims of g'eneral creditors and the said bondholders will be entitled to participate in the provision made for general creditors as hereinafter provided.”
Moreover, it seems clear from the language and provisions of section 77B, supra, that the approval and confirmation of the proposed, or any, plan of reorganization is a .matter for the bankruptcy court. Proposal of a plan rested with those empowered by the act to propose, but disposal rested with the court. Certainly is this true of a plan not yet accepted by any party, or class interested, save by implication the debtor alone, which presented it. The question whether a plan, accepted by every party in interest and by the requisite number of each class of creditors, yet leaves any discretion as to approval by the bankruptcy court, is not involved here; for this is not the case presented.
The individual trustee in the first mortgage is, and long has been, in possession of the mortgaged premises. The income from its operation is fast increasing, and at a rate which, if continued, will more than take care of overhead, taxes, and interest on the first mortgage for the current year. So, without more we are of opinion that the discretion vested by law in the court nisi was not abused, when he refused to presently permit foreclosure to appellant. In this connection it is urged that the order entered is upon its face final, for that appellant is by its terms precluded from ever afterwards renewing its application. We think, if the order attacked is in fact subject to the objection urged, it resulted from a mere unintentional inadvertence, on the part of the’ trial court. Clearly, the trial court did not have the power to cut off forever, and under any situation which may hereafter arise, the right of the trustees in the first mortgage to foreclose. Hobbs Tie & Timber Co. v. Isaacs (C.C.A.) 61 F.(2d) 1006. If modification of the order made were deemed necessary, we would modify it so as to permit, without prejudice to a further application to be made by the proper representatives of the bondholder, in the first deed of trust, when and if the legal situation shall hereafter warrant. But in the view already taken by us, that the bondholder here had no legal authority to make the application for an order to foreclose, we deem modification of the order unnecessary; for an order denying action to one having no power to act should not constitute res adjudicata as against one having such power.
. It follows from what is said that the case should be affirmed, without costs to either party, and so we order.
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
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songer_appel1_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 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.
CHEMETRON CORPORATION, a Delaware corporation, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 13454.
United States Court of Appeals Seventh Circuit.
Jan. 22, 1962.
Howard G. Krane, Chicago, 111., Jackson B. Moore, Willis D. Nance, Chicago, 111., C. A. Bechly, Kirkland, Ellis, Hod-son, Chaffetz & Masters, Chicago, III., of counsel, for petitioner on review.
Louis F. Oberdorfer, Asst. Atty. Gen., Jerry M. Hamovit, Tax Division, U. S. Department of Justice, Washington, D. C., Lee A. Jackson, A. F. Prescott, Thomas H. MePeters, Department of Justice, Washington, D. C., for respondent.
Before DUFFY, SWYGERT and MAJOR, Circuit Judges.
MAJOR, Circuit Judge.
The Tax Court of the United States, on December 14, 1960, sustained a determination by the Commissioner of Internal Revenue of deficiencies in petitioner’s income tax for the years 1953 and 1954. The matter is here on petition for review of that decision. The deficiency asserted for the year 1953 has been disposed of by agreement, leaving for consideration that for the year 1954. Petitioner’s name at the time its petition was filed with the Tax Court was National Cylinder Gas Company (referred to as N.C.G. or the taxpayer), which was subsequently changed to that shown in the caption.
The controversy arises from certain transactions which took place between taxpayer, Robert Klotz and Byron Jackson Company (referred to as B.J.Co.). Klotz, an inventor, owned the right, title and interest in and to certain inventions and patent applications pending in the United States Patent Office. On September 1, 1950, N.C.G. entered into an option contract with Klotz, whereby the former upon exercise of the option would acquire the entire interest of the latter in the inventions and patent applications. By the terms of the contract N.C.G. was obligated to prosecute the patent applications. The contract was not assignable by either party without the prior written consent of the other.
Subsequently, one of the applications designated in the option contract became involved in an interference proceeding with an application controlled by B.J.Co. Negotiations were carried on between N.C.G. and B.J.Co. relative to this interference and, in December 1952, an agreement was reached by which B.J.Co. would acquire the option rights of N.C.G. in the inventions and patent applications.
All agree that the taxpayer, in December 1952, transferred to B.J.Co. a capital asset. The ultimate question for decision is whether the proceeds from such transaction represented a long-term or short-term capital gain. This in turn depends upon whether the assets transferred had been held by the taxpayer for more or less than six months. Section 1222 of the Internal Revenue Code of 1954 (26 U.S.C. 1958 ed., § 1222).
The taxpayer contends, as it did before the Tax Court, that it sold and assigned to B.J.Co. the rights which it acquired under the option contract with Klotz, and that having held such option for more than six months, the proceeds were taxable as long-term capital gains. The Commissioner contends, as he did before the Tax Court, that .the taxpayer exercised its option with Klotz, thereby acquiring ownership of the inventions and patent applications designated therein. The Commissioner further contends that the taxpayer acquired the inventions and patent applications less than six months prior to the sale and that the proceeds therefor were taxable as short-term capital gains. Taxpayer before the Tax Court advanced the alternative theory that even though it be held to have exercised its option and thereby acquired ownership of the inventions and patent applications, such acquirement took place more than six months prior to the December transaction and it would still be entitled to a long-term capital gain.
The Tax Court decided that the taxpayer exercised its option and that the transaction with B.J.Co. was a sale of the inventions and patent applications. In so doing it stated:
“We hold that in substance the petitioner exercised the option under the 1950 Agreement with Klotz and therefore the Assignment Agreement was a sale of the inventions and patent applications and not merely the assignment of an option.”
The Tax Court, having thus decided that the taxpayer was the owner of the inventions and patent applications which it sold to B.J.Co., further held that such ownership was acquired less than six months prior to the transaction and that the proceeds were, therefore, taxable as a short-term capital gain.
It is our judgment, for reasons subsequently discussed, that the holding of the Tax Court that taxpayer sold to B.J.Co. inventions and patent applications rather than its rights under the option agreement with Klotz is clearly erroneous. We hold that the taxpayer did not acquire ownership of the inventions and patent applications, which makes irrelevant the Tax Court’s holding that such ownership was acquired within six months of the time of the transaction with B.J.Co.
It may also be noted that the Commissioner, as he did before the Tax Court, advances the alternative theory that even though it be held that the taxpayer in the 1952 transaction sold its option to B.J. Co., such option was owned by the taxpayer for less than six months and, therefore, it was not entitled to a long-term capital gain. This contention was neither mentioned nor decided by the Tax Court. We conclude that this theory has no merit. We also note, although perhaps immaterial, that the Commissioner originally asserted a deficiency on the theory that the proceeds received by taxpayer as a result of the 1952 transaction represented royalty income taxable as ordinary income at the rate of 52%. No contention was made at that time that the 1952 transaction embodied the sale of a capital asset, either of the inventions and patent applications or of the option contract with Klotz.
The Tax Court had before it numerous documents and heard the oral testimony of the attorney for the taxpayer, the attorney for B.J.Co., and Klotz, all of whom had participated in some or all of the numerous agreements which were entered into by the parties. A detailed analysis of the documents or discussion of the oral testimony would unduly prolong this opinion and, in our view, is unnecessary. There are three documents which in plain, unambiguous language demonstrate that the taxpayer obtained an option agreement from Klotz in 1950 and that the rights acquired thereby were sold and assigned to B.J.Co. in December 1952: (1) the option agreement entered into between Klotz and the taxpayer September 1, 1950; (2) the agreement by the taxpayer, assented to by Klotz, by which the taxpayer agreed to assign its option to B.J.Co., and (3) the assignment executed December 6, 1952, by which Klotz sold and assigned its inventions and patent applications to B.J.Co.
Little need be said as to the 1950 agreement because it is not in dispute. By it, the taxpayer obtained an option to acquire Klotz’s interest in certain designated inventions and patent applications. Taxpayer was obligated to prosecute such applications, was to receive a paid-up license as to any patents issued and during such time was to pay Klotz $100 per month. Taxpayer was free to exercise the option at any time by giving Klotz notice by registered mail. In the event the option was exercised, taxpayer was obligated to pay Klotz a certain percent of any royalties which might be re-^ ceived. He was not free to sell or assign the option without Klotz’s permission.
The record reveals numerous conferences and some correspondence between counsel for taxpayer and B.J.Co., in an attempt to settle the controversy engendered by the interference proceeding in the Patent Office. This all was with the approval of Klotz. On June 2, 1952, taxpayer’s counsel wrote Klotz to the effect that B.J.Co. was willing to revise the option to provide that he receive 6% of whatever was obtained by way of settlement. Klotz, on June 4, 1952, replied, approving of the proposal and suggesting that he was ready at any time to sign an agreement with B.J.Co., but expressing the belief that no new agreement was necessary unless a settlement was made with B.J.Co. Other correspondence bears upon the understanding between taxpayer and Klotz; however, no formal agreement was entered into until December 4, 1952, when an assignment agreement was executed between taxpayer and B.J.Co., ratified and assented to by Klotz. This agreement, after referring to the 1950 option contract between Klotz and taxpayer and other preliminary matters, stated:
“NCG does hereby sell, assign, transfer and set over unto BJ CO., its successors and assigns, the entire right of NCG pursuant to the aforesaid option agreement dated as of September 1, 1950 to acquire by assignment the entire right, title and interest in and to the following applications for United States Letters Patent and in and to the inventions described herein * * *.
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“ * * * NCG further covenants that it will undertake to cause to be executed and delivered to BJ CO. promptly upon execution of this agreement any and all deeds, assignments, or other documents necessary to vest in BJ CO. the full and unimpaired legal and equitable title in and to the aforesaid inventions and applications * *
N.C.G. obligated itself to make all reasonable efforts to obtain the cooperation and assistance of Klotz in the prosecution of the patent applications. The agreement provided that Klotz would receive a certain percent of royalties to be paid by B.J.Co. to N.C.G.
The agreement further provided:
“It is expressly understood and agreed between the parties hereto that NCG, by this agreement, has sold, assigned and transferred to BJ CO. all of its rights as set forth in Article II hereof * * * ”
Article II sets forth taxpayer’s 1950 option agreement with Klotz.
On December 6, 1952, Klotz, pursuant to the assignment agreement, executed an assignment by which he sold, assigned, transferred and set over to BJ Co., its successors and assigns, the entire right, title and interest in the inventions and applications for patents described in the option contract between Klotz and N.C.G.
The assignment agreement, as well as the assignment, was procured from Klotz by N.C.G. at the request of BJ Co., to be delivered to the latter upon consummation of the transaction between, N.C.G. and BJ Co. Explanatory of this situation is a letter dated December 4, 1952, from taxpayer’s counsel to Klotz, which states, “Enclosed are quadruplicate execution copies of the agreement between this company and Byron Jackson Co. by which we will assign to BJ CO. our rights under the Option Agreement of September 1, 1950 between yourself and this company,” and further, “The completed assignment will be held in our files here until we receive the fully executed agreement from BJ CO., whereupon it will be immediately delivered to BJ CO. On the happening of this event, you can assume that BJ CO. has then exercised the option rights assigned to it by NCG. Or, possibly, you will be formally advised of this by BJ CO. In either case, it will be an accomplished fact on the delivery to BJ CO. of the assignment of the patent applications.”
Both counsel for taxpayer and for BJ Co. testified that they understood the transaction to be a sale of the option by the taxpayer to BJ Co. Klotz testified to the same effect and that he had been told to consider the execution of the assignment agreement by BJ Co. as an exercise of the option. He further testified that he did not consider it necessary for the latter to notify him by registered mail that it was exercising the option. Counsel for BJ Co. also testified that he understood his company was acquiring an option and exercising it.
As a premise for its conclusion, the Tax Court found:
(1) “The payments by B.J. were the proceeds of a sale by the petitioner in December 1952, of the petitioner’s ownership rights in certain inventions and patent application.”
(2) “These rights were acquired by the petitioner less than six months before they were sold.”
In our view, these findings are clearly erroneous; in fact, they are devoid of any record support. They are reached by indulging in inferences based on a fallacious process of reasoning.
The Tax Court, as well as the Commissioner here, places great reliance upon a clause in the assignment agreement which it is argued contradicts the express language that the sale by the taxpayer was of its option and not of the inventions and patent applications. The Tax Court in its opinion stated:
“The Assignment Agreement states that its purpose is to sell an option to certain inventions and patent applications. However, this statement is contradicted by another provision in which the petitioner ‘covenants that it will undertake to cause to be executed and delivered * * * all deeds, assignments, or other documents necessary to vest in BJ CO. the full and unimpaired legal and equitable title * * In order to comply with this provision it would be necessary for the petitioner to exercise the option with Klotz. Petitioner denies that it exercised the option. There is no evidence that the option was ever exercised by B.J.”
The clause, “undertake to cause to be executed and delivered,” does not contradict the premise that taxpayer assigned to BJ Co. its interest in the option agreement and that it was Klotz who assigned and sold to BJ Co. the inventions and patent applications. In fact, the clause is not only consistent with the other provisions of the assignment agreement but supports the taxpayer’s contention. If taxpayer intended to exercise the option and sell to BJ Co. the inventions and patent applications acquired thereby, it would not have agreed to “undertake to cause” itself to execute the necessary documents, it would have agreed to execute them itself. The clause plainly refers to a third party, which obviously was Klotz. The clause supports the theory that taxpayer agreed to sell its option and that “it will undertake to cause” Klotz, who was the owner of the inventions and applications, to execute and deliver documents necessary to vest title and ownership in BJ Co.
The Tax Court reasons that the fact that BJ Co. did not notify Klotz by registered mail of its exercise of the option, as provided for in the option agreement, is inconsistent with the theory that BJ Co. acquired the inventions and patent applications from Klotz. This reasoning also is without merit. After the parties had entered into an agreement by which BJ Co. was to acquire by assignment from taxpayer its option interest, and from Klotz ownership of the inventions and patent applications, it would have been an idle gesture for BJ Co. to notify Klotz that it was exercising the option, thereby requiring Klotz to convey assets which he had theretofore contracted to do. More than that, Klotz testified that he was advised, presumably by counsel, that a written notice of exercise by BJ Co. was unnecessary. In this connection, it is interesting to note that the Tax Court found there was no proof of an exercise of the option by BJ Co. but at the same time, as subsequently noted, without proof found that there was an exercise of the option by taxpayer.
The Tax Court mentions the fact that Klotz executed the assignment of the inventions and applications to BJ Co. before the latter signed the option assignment agreement. This point ignores the realities of the situation. It is not open to dispute but that BJ Co. was desirous of obtaining the option agreement held by taxpayer and the inventions and patent applications held and owned by Klotz. It is equally evident that BJ Co. was not interested in acquiring either without the other. Thus, the option assignment agreement of December 4, 1952, between BJ Co. and taxpayer, assented to by Klotz, obligated the taxpayer to assign to BJ Co. its option rights, and Klotz to assign to BJ Co. its title and ownership of the inventions and patent applications. We think it immaterial whether Klotz or taxpayer first discharged its obligation to BJ Co., and no inference can properly be drawn against taxpayer because of the fact that Klotz executed his assignment a few days before that executed by the taxpayer.
The Tax Court also stresses the point that all payments by BJ Co. were to be made directly to taxpayer, from which it infers that taxpayer must have conveyed to BJ Co. ownership of the inventions and patent applications. The record discloses that during the negotiations between taxpayer and BJ Co., the former and Klotz agreed that all payments to be made by BJ Co. should be made directly to taxpayer and that the latter would pay Klotz 6% of payments received. This provision for payment was agreed to by taxpayer at the request of Klotz and was to be binding only in the event that taxpayer sold its option to BJ Co. Klotz testified, without dispute, that he desired this arrangement because of his satisfactory relationship with taxpayer and that he did not want to get involved with other people. By this arrangment, Klotz made taxpayer his agent to collect and pay him in accordance with their agreement. Considered in connection with the other circumstances, we think this incident is without significance as it relates to the principal issue in controversy.
We think the Tax Court approached the problem before it in reverse order. It first found, contrary to the unambiguous language of the documentary evidence as well as the oral testimony of witnesses, that taxpayer was the owner of and sold to BJ Co. the inventions and patent applications. The taxpayer could have acquired such ownership only by the exercise of its option with Klotz. Thus, the Tax Court was faced with the necessity of finding that the taxpayer had exercised such option. The uncertainty of the time of such exercise is evidenced by the finding that it took place sometime between October 16 and December 15, 1952. The manner or means by which such exercise was effected is not disclosed. As previously noted, the Tax Court found that there was no proof of exercise of the option by BJ Co. and we hold that there was no proof of exercise by the taxpayer. In the former situation, for reasons heretofore shown, lack of proof was immaterial; in the latter, proof of exercise was imperative as a basis for the conclusion that taxpayer acquired ownership of the inventions and patent applications.
The Commissioner on brief cites four cases in support of his argument for affirmance of the Tax Court’s decision. Blick v. Commissioner, 31 T.C. 611, affirmed 3 Cir., 271 F.2d 928; Barber v. United States, 115 F.Supp. 349, affirmed 8 Cir., 215 F.2d 663; Miller v. Commissioner, 8 Cir., 295 F.2d 538; Butler v. Commissioner, 43 B.T.A. 1005. No good purpose could be served in a detailed comparison of the facts of these cases with those here. We have read them and, taken as a whole, they are of no benefit to the Commissioner in the instant matter. Generally it may be said of them that the subject matter involved was a contract for the sale of property which the taxpayer was attempting to convert into an agreement for the sale of an option on the theory that such was the intention of the parties. Here, we have the opposite situation where the contract is for the sale of an option which the Commissioner attempts to convert into a contract for the sale of the property described therein.
The situation is emphasized in Butler v. Commissioner, where thé Tax Court, in response to taxpayer’s contention that the agreement in controversy was the assignment of an option, stated:
“Nowhere in that agreement is any reference made to an assignment * * * or to a sale of his option under that agreement. Rather the agreement, clear in its terms, deals with a sale by petitioner of the fee title to the mineral rights covered by the 1934 agreement * * *. * * the terms of the agreement with Lay, does not indicate in any way whatsoever that petitioner sold or agreed to sell his option to Lay.”
Again, in the Blick case, where the taxpayer claimed that it was the intention of the parties that the agreement was for the sale of an option, the Tax Court stated (page 618):
“The transaction in question having been the subject of a written contract, we would require clear and compelling evidence to ignore the terms of that contract to the extent urged by petitioner. Such evidence is not present here.”
Devoid of all substance is the Commissioner’s alternative theory that even though it be held that taxpayer sold and assigned to BJ Co. an option agreement, the same was owned by taxpayer for less than six months. Taxpayer’s property interest sold and assigned to BJ Co. was its right under the 1950 agreement with Klotz to acquire and become the owner of the property described therein upon exercise of the option. It is true that the option agreement at the request of BJ Co. was modified in some particulars, but taxpayer’s right to acquire the property described in the option was at all times preserved. The Tax Court recognized as much when it held, as heretofore noted, that the taxpayer exercised its option under the 1950 agreement with Klotz.
The decision of the Tax Court is reversed and the cause remanded for such further proceedings as may be required not inconsistent with this opinion.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What 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_casesource
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027
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
IN RE SNYDER
No. 84-310.
Argued April 16, 1985
Decided June 24, 1985
Burger, C. J., delivered the opinion of the Court, in which all other Members joined except Blackmun, J., who took no part in the decision of the ease.
David L. Peterson argued the cause for petitioner. With him on the briefs were Robert P. Bennett, John C. Kapsner, Charles L. Chapman, and Irvin B. Nodland.
John J. Greer argued the cause for respondent United States Court of Appeals for the Eighth Circuit. With him on the brief was Ross H. Sidney.
Charles S. Sims filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.
Frank E. Bazler and Albert L. Bell filed a brief for the Ohio State Bar Association as amicus curiae.
Chief Justice Burger
delivered the opinion of the Court.
We granted certiorari to review the judgment of the Court of Appeals suspending petitioner from practice in all courts of the Eighth Circuit for six months.
HH
In March 1983, petitioner Robert Snyder was appointed by the Federal District Court for the District of North Dakota to represent a defendant under the Criminal Justice Act. After petitioner completed the assignment, he submitted a claim for $1,898.55 for services and expenses. The claim was reduced by the District Court to $1,796.05.
Under the Criminal Justice Act, the Chief Judge of the Court of Appeals was required to review and approve expenditures for compensation in excess of $1,000. 18 U. S. C. § 3006A(d)(3). Chief Judge Lay found the claim insufficiently documented, and he returned it with a request for additional information. Because of technical problems with his computer software, petitioner could not readily provide the information in the form requested by the Chief Judge. He did, however, file a supplemental application.
The secretary of the Chief Judge of the Circuit again returned the application, stating that the proffered documentation was unacceptable. Petitioner then discussed the matter with Helen Monteith, the District Court Judge’s secretary, who suggested he write a letter expressing his. view. Petitioner then wrote the letter that led to this case. The letter, addressed to Ms. Monteith, read in part:
“In the first place, I am appalled by the amount of money which the federal court pays for indigent criminal defense work. The reason that so few attorneys in Bismarck accept this work is for that exact reason. We have, up to this point, still accepted the indigent appointments, because of a duty to our profession, and the fact that nobody else will do it.
“Now, however, not only are we paid an amount of money which does not even cover our overhead, but we have to go through extreme gymnastics even to receive the puny amounts which the federal courts authorize for this work.. We have sent you everything we have concerning our representation, and I am not sending you anything else. You can take it or leave it.
“Further, I am extremely disgusted by the treatment of us by the Eighth Circuit in this case, and you are instructed to remove my name from the list of attorneys who will accept criminal indigent defense work. I have simply had it.
“Thank you for your time and attention.” App. 14-15.
The District Court Judge viewed this letter as one seeking changes in the process for providing fees, and discussed these concerns with petitioner. The District Court Judge then forwarded the letter to the Chief Judge of the Circuit. The Chief Judge in turn wrote to the District Judge, stating that he considered petitioner’s letter
“totally disrespectful to the federal courts and to the judicial system. It demonstrates a total lack of respect for the legal process and the courts.” Id., at 16.
The Chief Judge expressed concern both about petitioner’s failure-to “follow the guidelines and [refusal] to cooperate with the court,” and questioned whether, “in view of the letter” petitioner was “worthy of practicing law in the federal courts on any matter.” He stated his intention to issue an order to show cause why petitioner should not be suspended from practicing in any federal court in the Circuit for a period of one year. Id., at 17-18. Subsequently, the Chief Judge wrote to the District Court again, stating that if petitioner apologized the matter would be dropped. At this time, the Chief Judge approved a reduced fee for petitioner’s work of $1,000 plus expenses of $23.25.
After talking with petitioner, the District Court Judge responded to the Chief Judge as follows:
“He [petitioner] sees his letter as an expression of an honest opinion, and an exercise of his right of freedom of speech. I, of course, see it as a youthful and exuberant expression of annoyance which has now risen to the level of a cause. . . .
“He has decided not to apologize, although he assured me he did not intend the letter as you interpreted it.” Id., at 20.
The Chief Judge then issued an order for petitioner to show cause why he should not be suspended for his “refusal to carry out his obligations as a practicing lawyer and officer of [the] court” because of his refusal to accept assignments under the Criminal Justice Act. Id., at 22. Nowhere in the order was there any reference to any disrespect in petitioner’s letter of October 6, 1983.
Petitioner requested a hearing on the show cause order. In his response to the order, petitioner focused exclusively on whether he was required to represent indigents under the Criminal Justice Act. He contended that the Act did not compel lawyers to represent indigents, and he noted that many of the lawyers in his District had declined to serve. He also informed the court that prior to his withdrawal from the Criminal Justice Act panel, he and his two partners had taken 15 percent of all the Criminal Justice Act cases in their district.
At the hearing, the Court of Appeals focused on whether petitioner’s letter of October 6, 1983, was disrespectful, an issue not mentioned in the show cause order. At one point, Judge Arnold asked: “I am asking you, sir, if you are prepared to apologize to the court for the tone of your letter?” Id:, at 40. Petitioner answered: “That is not the basis that I am being brought forth before the court today.” Ibid. When the issue again arose, petitioner protested: “But, it seems to me we’re getting far afield here. The question is, can I be suspended from this court for my request to be removed from the panel of attorneys.” Id., at 42.
Petitioner was again offered an opportunity to apologize for his letter, but he declined. At the conclusion of the hearing, the Chief Judge stated:
“I want to make it clear to Mr. Snyder what it is the court is allowing you ten days lapse here, a period for you to consider. One is, that, assuming there is a general requirement for all competent lawyers to do pro bono work that you stand willing and ready to perform such work and will comply with the guidelines of the statute. And secondly, to reconsider your position as Judge Arnold has requested, concerning the tone of your letter of October 6.” Id., at 50.
Following the hearing, petitioner wrote a letter to the court, agreeing to “enthusiastically obey [the] mandates” of any new plan for the implementation of the Criminal Justice Act in North Dakota, and to “make every good faith effort possible” to comply with the court’s guidelines regarding compensation under the Act. Petitioner’s letter, however, made no mention of the October 6, ¿983, letter. Id., at 51-52.
The Chief Judge then wrote to Snyder, stating among other things:
“The court expressed its opinion at the time of the oral hearing that interrelated with our concern and the issuance of the order to show cause was the disrespect that you displayed to the court by way of your letter addressed to Helen Montieth [sic], Judge Van Sickle’s secretary, of October 6, 1983. The court expressly asked if you would be willing to apologize for the tone of the letter and the disrespect displayed. You serve as an officer of the court and, as such, the Canons of Ethics require every lawyer to maintain a respect for the court as an institution.
“Before circulating your letter of February 23,1 would appreciate your response to Judge Arnold’s specific request, and the court's request, for you to apologize for the letter that you wrote.
“Please let me hear from you by return mail. I am confident that if such a letter is forthcoming that the court will dissolve the order.” Id., at 52-53. (Emphasis added.)
Petitioner responded to the Chief Judge:
“I cannot, and will never, in justice to my conscience, apologize for what I consider to be telling the truth, albeit in harsh terms. . . .
“It is unfortunate that the respective positions in the proceeding have so hardened. However, I consider this to be a matter of principle, and if one stands on a principle, one must be willing to accept the consequences.” Id., at 54.
After receipt of this letter, petitioner was suspended from the practice of law in the federal courts in the Eighth Circuit for six months. 734 F. 2d 334 (1984). The opinion stated that petitioner “contumaciously refused to retract his previous remarks or apologize to the court.” Id., at 336. It continued:
“[Petitioner’s] refusal to show continuing respect for the court and his refusal to demonstrate a sincere retraction of his admittedly ‘harsh’ statements are sufficient to demonstrate to this court that he is not presently fit to practice law in the federal courts. All courts depend on the highest level of integrity and respect not only from the judiciary but from the lawyers who serve in the court as well. Without public display of respect for the judicial branch of government as an institution by lawyers, the law cannot survive. . . . Without hesitation we find Snyder’s disrespectful statements as to this court’s administration of CJA contumacious conduct. We deem this unfortunate.
“We find that Robert Snyder shall be suspended from the practice of law in the federal courts of the Eighth Circuit for a period of six months; thereafter, Snyder should make application to both this court and the federal district court of North Dakota to be readmitted.” Id., at 337. (Emphasis added.)
The opinion specifically stated that petitioner’s offer to serve in Criminal Justice Act cases in the future if the panel was equitably structured had “considerable merit.” Id., at 339.
Petitioner moved for rehearing en banc. In support of his motion, he presented an affidavit from the District Judge’s secretary — the addressee of the October 6 letter — stating that she had encouraged him to send the letter. He also submitted an affidavit from the District Judge, which read in part:
“I did not view the letter as one of disrespect for the Court, but rather one of a somewhat frustrated lawyer hoping that his comments might be viewed as a basis for some changes in the process.
. . Mr. Snyder has appeared before me on a number of occasions and has always competently represented his client, and has shown the highest respect to the court system and to me.” App. 83-84. (Emphasis added.)
The petition for rehearing en banc was denied. An opinion for the en banc court stated:
“The gravamen of the situation is that Snyder in his letter [of October 6, 1983] became harsh and disrespectful to the Court. It is one thing for a lawyer to complain factually to the Court, it is another for counsel to be disrespectful in doing so.
“. . . Snyder states that his letter is not disrespectful. We disagree. In our view, the letter speaks for itself.” 734 F. 2d, at 343. (Emphasis added.)
The en banc court opinion stayed the order of suspension for 10 days, but provided that the stay would be lifted if petitioner failed to apologize. He did not apologize, and the order of suspension took effect.
We granted certiorari, 469 U. S. 1156 (1985). We reverse.
I — I I — I
Petitioner challenges his suspension from practice on the grounds (a) that his October 6, 1983, letter to the District Judge’s secretary was protected by the First Amendment, (b) that he was denied due process with respect to the notice of the charge on which he was suspended, and (c) that his challenged letter was not disrespectful or contemptuous. We avoid constitutional issues when resolution of such issues is not necessary for disposition of a case. Accordingly, we consider first whether petitioner’s conduct and expressions warranted his suspension from practice; if they did not, there is no occasion to reach petitioner’s constitutional claims.
Courts have long recognized an inherent authority to suspend or disbar lawyers. Ex parte Garland, 4 Wall. 333, 378-379 (1867); Ex parte Burr, 9 Wheat. 529, 531 (1824). This inherent power derives from the lawyer’s role as an officer of the court which granted admission. Theard v. United States, 354 U. S. 278, 281 (1957). The standard for disciplining attorneys practicing before the courts of appeals is set forth in Federal Rule of Appellate Procedure 46:
“(b) Suspension or Disbarment. When it is shown to the court that any member of its bar has been suspended or disbarred from practice in any other court of record, or has been guilty of conduct unbecoming a member of the bar of the court, he will be subject to suspension or disbarment by the court. The member shall be afforded an opportunity to show good cause, within such time as the court shall prescribe, why he should not be suspended or disbarred. Upon his response to the rule to show cause, and after hearing, if requested, or upon expiration of the time prescribed for a response if no response is made, the court shall enter an appropriate order.” (Emphasis added.)
The phrase “conduct unbecoming a member of the bar” must be read in light of the “complex code of behavior” to which attorneys are subject. In re Bithoney, 486 F. 2d 319, 324 (CA1 1973). Essentially, this reflects the burdens inherent in the attorney’s dual obligations to clients and to the system of justice. Justice Cardozo once observed:
“‘Membership in the bar is a privilege burdened with conditions.’ [An attorney is] received into that ancient fellowship for something more than private gain. He [becomes] an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice.” People ex rel. Karlin v. Culkin, 248 N. Y. 465, 470-471, 162 N. E. 487, 489 (1928) (citation omitted).
As an officer of the court, a member of the bar enjoys singular powers that others do not possess; by virtue of admission, members of the bar share a kind of monopoly granted only to lawyers. Admission creates a license not only to advise and counsel clients but also to appear in court and try cases; as an officer of the court, a lawyer can cause persons to drop their private affairs and be called as witnesses in court, and for depositions and other pretrial processes that, while subject to the ultimate control of the court, may be conducted outside courtrooms. The license granted by the court requires members of the bar to conduct themselves in a manner compatible with the role of courts in the administration of justice.
Read in light of the traditional duties imposed on an attorney, it is clear that “conduct unbecoming a member of the bar” is conduct contrary to professional standards that shows an unfitness to discharge continuing obligations to clients or the courts, or conduct inimical to the administration of justice. More specific guidance is provided by case law, applicable court rules, and “the lore of the profession,” as embodied in codes of professional conduct.
B
Apparently relying on an attorney’s obligation to avoid conduct that is “prejudicial to the administration of justice,” the Court of Appeals held that the letter of October 6, 1983, and an unspecified “refusal to show continuing respect for the court” demonstrated that petitioner was “not presently fit to practice law in the federal courts.” 734 F. 2d, at 337. Its holding was predicated on a specific finding that petitioner’s “disrespectful statements [in his letter of October 6, 1983] as to this court’s administration of the CJA [constituted] contumacious conduct.” Ibid.
We must examine the record in light of Rule 46 to determine whether the Court of Appeals’ action is supported by the evidence. In the letter, petitioner declined to submit further documentation in support of his fee request, refused to accept further assignments under the Criminal Justice Act, and criticized the administration of the Act. Petitioner’s refusal to submit further documentation in support of his fee request could afford a basis for declining to award a fee; however, the submission of adequate documentation was only a prerequisite to the collection of his fee, not an affirmative obligation required by his duties to a client or the court. Nor, as the Court of Appeals ultimately concluded, was petitioner legally obligated under the terms of the local plan to accept Criminal Justice Act cases.
We do not consider a lawyer’s criticism of the administration of the Act or criticism of inequities in assignments under the Act as cause for discipline or suspension. The letter was addressed to a court employee charged with administrative responsibilities, and concerned a practical matter in the administration of the Act. The Court of Appeals acknowledged that petitioner brought to light concerns about the administration of the plan that had “merit,” 734 F. 2d, at 339, and the court instituted a study of .the administration of the Criminal Justice Act as a result of petitioner’s complaint. Officers of the court may appropriately express criticism on such matters.
The record indicates the Court of Appeals was concerned about the tone of the letter; petitioner concedes that the tone of his letter was “harsh,” and, indeed it can be read as ill-mannered. All persons involved in the judicial process— judges, litigants, witnesses, and court officers — owe a duty of courtesy to all other participants. The necessity for civility in the inherently contentious setting of the adversary process suggests that members of the bar cast criticisms of the system in a professional and civil tone. However, even assuming that the letter exhibited an unlawyerlike rudeness, a single incident of rudeness or lack of professional courtesy— in this context — does not support a finding of contemptuous or contumacious conduct, or a finding that a lawyer is “not presently fit to practice law in the federal courts.” Nor does it rise to the level of “conduct unbecoming a member of the bar” warranting suspension from practice.
Accordingly, the judgment of the Court of Appeals is
Reversed.
Justice Blackmun took no part in the decision of this case.
The statutory limit has since been raised to $2,000. 18 U. S. C. § 3006A(d)(2) (1982 ed., Supp. III).
A resolution presented by the Burleigh County Bar Association to the Court of Appeals on petitioner’s behalf stated that of the 276 practitioners eligible to serve on the Criminal Justice Act panel in the Southwestern Division of the District of North Dakota, only 87 were on the panel. App. 85.
734 F. 2d, at 341. Circuit Judges Bright and McMillian voted to grant the petition for rehearing en banc.
The panel opinion made explicit that Snyder was suspended from the District Court as well as the Court of Appeals by stating: “[Tjhereafter Snyder should make application to both this court and the federal district court of North Dakota to be readmitted.” 734 F. 2d, at 337.
Federal Rule of Appellate Procedure 46 does not appear to give authority to the Court of Appeals to suspend attorneys from practicing in the District Court. As the panel opinion itself indicates, the admission of attorneys to practice before the District Court is placed, as an initial matter, before the District Court itself. The applicable Rule of the District Court indicates that a suspension from practice before the Court of Appeals creates only a rebuttable presumption that suspension from the District Court is in order. The Rule appears to entitle the attorney to a show cause hearing before the District Court. Rule 2(e)(2), United States District Court for the District of North Dakota, reprinted in Federal Local Rules for Civil and Admiralty Proceedings (1984). A District Court decision would be subject to review by the Court of Appeals.
The Court of Appeals relied on Federal Rule of Appellate Procedure 46(c) for its action. While the language of Rule 46(c) is not without some ambiguity, the accompanying note of the Advisory Committee on Appellate Rules, 28 U. S. C. App., p. 496, states that this provision “is to make explicit the power of a court of appeals to impose sanctions less serious than suspension or disbarment for the breach of rules.” The appropriate provision under which to consider the sanction of suspension would have been Federal Rule of Appellate Procedure 46(b), which by its terms deals with “suspension or disbarment.”
The Court of Appeals stated that the standard of professional conduct expected of an attorney is defined by the ethical code adopted by the licensing authority of an attorney’s home state, 734 F. 2d, at 336, n. 4, and cited the North Dakota Code of Professional Responsibility as the controlling expression of the conduct expected of petitioner. The state code of professional responsibility does not by its own terms apply to sanctions in the federal courts. Federal courts admit and suspend attorneys as an exercise, of their inherent power; the standards imposed are a matter of federal law. Hertz v. United States, 18 F. 2d 52, 54-55 (CA8 1927).
The Court of Appeals was entitled, however, to charge petitioner with the knowledge of and the duty to conform to the state code of professional responsibility. The uniform first step for admission to any federal court is admission to a state court. The federal court is entitled to rely on the attorney’s knowledge of the state code of professional conduct applicable in that state court; the provision that suspension in any other court of record creates a basis for a show cause hearing indicates that Rule 46 anticipates continued compliance with the state code of conduct.
734 F. 2d, at 336-337. This duty is almost universally recognized in American jurisdictions. See, e. g., Disciplinary Rule 1-102(A)(5), North Dakota Code of Professional Responsibility; Rule 8.4(d), American Bar Association, Model Rules of Professional Conduct (1983); Disciplinary Rule 1-102(A)(5), American Bar Association, Model Code of Professional Responsibility (1980).
Question: What is the court whose decision the Supreme Court reviewed?
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011. U.S. Court for China
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200. Wyoming U.S. Circuit for the District of Wyoming
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205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
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207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer:
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songer_appel1_1_2
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C
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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".
COCA-COLA CO. v. SNOW CREST BEVERAGES, Inc.
No. 4196.
Circuit Court of Appeals, First Circuit.
June 10, 1947.
Pope F. Brock, of Atlanta, Ga. (Hugh D. McLellan, John T. Noonan, Henry L. Mason, Jr., and Herrick, Smith, Donald, Farley & Ketchum, all of Boston, Mass., and Frank Troutman and Daphne Robert, both of Atlanta, Ga., on the brief), for appellant.
Arthur E. Whittemore, of Boston, Mass, (Arthur D. Thomson and Joseph P. Healey, both of Boston, Mass., on the brief), for appellee.
Before MAGRUDER, MAHONEY, and WOODBURY, Circuit Judges.
WOODBURY, Circuit Judge.
This is an appeal from a decree dismissing a complaint alleging infringement of a registered trade-mark and unfair competition. Federal jurisdiction therefore rests upon 15 U.S.C.A. § 97 as to both grounds alleged in support of the cause of action asserted, i. e., interference with the plaintiff’s exclusive right to use its registered trade-mark. See Armstrong Co. v. Nu-Enamel Corp., 305 U.S. 315, 324, 325, 59 S.Ct 191, 83 L.Ed. 195. Furthermore, as will appear from our statement of the facts, federal jurisdiction over the ground of unfair competition may also be rested upon diversity of citizenship and amount in controversy.
The plaintiff-appellant, The Coca-Cola Company, a Delaware corporation, is the owner of the trade-mark “Coca-Cola,” registered in the United States Patent Office in the years 1893, 1905, 1925, twice in 1928 and again in 1945. It also registered its mark in Massachusetts in 1919. For a great many years it has manufactured and sold in interstate commerce the soft drink syrup from which its familiar dark reddish-brown beverage is made. The tens of millions of dollars it has spent over the years in advertising its product under the name “Coca-Cola” have created an enormous public demand for the beverage. Obviously, as the court below found, the value of its mark is far in excess of $3,000.
The plaintiff sells the syrup which it manufactures in two ways. It sells approximately 20% of its product to independent wholesalers or jobbers who sell it to soda fountain operators who in turn mix the syrup with carbonated water and dispense the beverage by the glass. Its business in this “fountain syrup” as it is called is without significance in the case at bar. It sells the major part of its syrup to six so-called “parent bottlers”, each of which has exclusive resale rights in a particular territory, and these in turn resell to local bottlers having exclusive franchises in their respective sub-territories. These local bottlers mix the syrup with carbonated water, package the combination in distinctive 6 oz., somewhat hourglass shaped, bottles into the glass of which the trade-mark “Coca-Cola” in script is blown, and sell the bottled product to retail outlets such as stores, bars, taverns, restaurants, etc. For over 20 years the plaintiff has made extensive use of the phrase “Delicious and Refreshing” in its advertising.
The defendant-appellee, Snow Crest Beverages, Inc., is a Massachusetts corporation which was organized in 1930 for the purpose of incorporating a business carried on since 1923 by one Berkowitz under the name Snow Crest Beverage Company. Originally Berkowitz manufactured only pure fruit flavored carbonated beverages which he sold in 7% oz. and quart size bottles under the trade name “Snow Crest”. In 1929 he began to manufacture artificial flavored carbonated beverages which he sold in 7% oz., 12 oz. and quart bottles under the trade name “Polar Cub”. Berkowitz, and subsequently the defendant corporation, advertised its names, “Snow Crest” and “Polar Cub”, through the usual media with the" result that there has been built up a special association of these names with the defendant’s products.
In 1935 the defendant added a cola type beverage to its line which is apparently indistinguishable from the plaintiff’s Coca-Cola either by taste or color. It originally called this drink “Sno Kola”, which it soon changed to “Sno Cola”, and in 1937, without giving up this latter name, it began to put this beverage out also as “Polar Kola”, changed a little later to “Polar Cola”. It marketed this beverage in 7 oz., 7% oz., 12 oz. and quart bottles, and on all of these bottles it used a crown, or cap, displaying the name “Polar Kola”, later “Polar Cola”, in white block letters on a narrow red band under a representation of a polar bear cub, which was the symbol it had long used in connection with its Polar Cub line of artificial fruit flavored beverages.
On its bottles it also affixed a paper label, predominately blue, white and orange in color, bearing a representation of a polar bear cub in an Arctic scene under the words “Polar Cola” in block letters. Upon these labels the beverage was described as consisting of flavor from the cola nut blended with natural flavors, cane sugar, carbonated water and caramel, and on them appeared the words “Delicious Refreshing”. The label on the 7 oz. bottle carried the notation “individual size”, that on its 12 oz. bottle “double size”, and that on its largest size bottle “family size”. The court below found that in view of the wide market for Coca-Cola the legend “double size” on the label of the defendant’s 12 oz. bottle would be interpreted by the ordinary buyer of soft drinks to mean “double the size of a Coca-Cola bottle.”
In 1940 the defendant began to bottle its-Polar Cola in distinctive 28 oz. bottles of the same type that it had previously used in marketing some of its other products, and early in 1943 it discontinued all sales of Polar Cola except in bottles of this size and special type. Since 1944 it has soldi these 28 oz. bottles virtually only to the bar and tavern trade in Massachusetts. It intends, however, as soon as sugar and other supplies become available, to resume-its sales in smaller bottles to retail stores and to expand its business into interstate commerce.
Until 1944 the defendant’s 28 oz. bottles were closed with the Polar Cola cap already described and carried a paper label displaying (1) the name Polar Cola in large white lettering approaching script in appearance on a red background,. (2)-the defendant’s name as bottler in small letters, (3) a description of the contents,, also in small letters, and (4) a prominent representation of an owl winking one eye next to the slogan “Get Wise — Giant Size”. Since December 1944 it has used caps and labels on its bottles which by no stretch of the imagination could be said to have-any resemblance to anything appearing in the plaintiff’s advertisements, and it has-called its beverage “Polar Cub” on the label and “Cubo-la” on the cap. It has retained the name “Polar Cola” on its trucks,, however, and it says that the change in-labeling of December 1944 was only to-test consumer reaction. Furthermore, it is found as a fact that the defendant intends to revive the name “Polar Cola” for its product. This case, therefore, has not become moot since the defendant not only asserts but also intends to exercise what, it claims to be its right to market its product in the way complained of whenever it may see fit to do so.
As already appears, the wrong complained of — interference with the plaintiff’s exclusive right to use its mark “Coca-Cola” —is grounded upon allegations both of trade-mark infringement and unfair competition. Specifically the plaintiff contends that the defendant’s name “Polar Cola” infringes its registered trade-mark “Coca-Cola”; that the defendant’s use of the name “Polar Cola” constitutes unfair competition with the plaintiff; that the defendant’s product, with its connivance and assistance, has been and is being widely passed off by retail dealers to consumers on orders for the plaintiff’s product; that the defendant without satisfactory reason or excuse has imitated the plaintiff’s “getup” and the general appearance of its product; and that, by printing “Delicious Refreshing” on its labels the defendant has made use of the predominant parts of one of the plaintiff’s well known trade slogans. We shall consider these contentions in the •order enumerated after disposing of three matters of general application.
In the first place there is no question in this case with respect to the applicable law. Opposing counsel agree and the court below held, in conformity with its ruling in National Fruit Product Co. v. Dwinell-Wright Co., D.C., 47 F.Supp. 499, “that on the particular types of issues here involved there is no difference in the federal statutory rule, the federal common-law rule, the Massachusetts statutory rule and the Massachusetts common-law rule.” Furthermore, it seems to be conceded, as it must be, that the legal test of trademark infringement is the same as the legal test of unfair competition and basically that test is the likelihood of consumer confusion as to the source of the goods. Dwinell-Wright Co. v. National Fruit Product Co., 1 Cir., 140 F.2d 618, 622, 623; Mishawaka Rubber & Woolen Mfg. Co. v. Panther-Panco Rubber Co., 1 Cir., 153 F. 2d 662, 665, certiorari denied 329 U.S.-, 67 S.Ct. 64. That is to say, the test to determine whether the defendant has violated the plaintiff’s right to the exclusive use of its mark is to inquire whether the defendant has carried on its business in such a way as to make it likely that ordinary purchasers of its goods would confuse them with those of the plaintiff. And we have held in this circuit that this ultimate question of the likelihood of consumer confusion as to source is one of fact. Thomas Kerfoot & Co., Ltd., v. Louis K. Liggett Co., 1 Cir., 67 F.2d 214, 215; Dwinell-Wright Co. v. National Fruit Product Co., supra, 140 F.2d 618, 623, and cases cited. In accord see also Warner & Co. v. Lilly & Co., 265 U.S. 526, 529, 44 S.Ct. 615, 68 L.Ed. 1161; Skinner Mfg. Co. v. Kellogg Sales Co., 8 Cir., 143 F.2d 895, 899; Magazine Publishers, Inc., v. Ziff-Davis Pub. Co., 2 Cir., 147 F.2d 182, 185. Cf., however, LaTouraine Coffee Co. v. Lorraine Coffee Co., 2 Cir., 157 F.2d 115, 117, certiorari denied 329 U.S. 771, 67 S.Ct. 189, in which it is said that this ultimate question is reviewable on appeal.
In the second place the defendant has the undoubted right to manufacture and market a drink indistinguishable from the plaintiff’s by either taste or color. In 1920 the Supreme Court in The Coca-Cola Co. v. The Koke Co. of America, 254 U.S. 143, 147, 41 S.Ct. 113, 114, 65 L.Ed. 189, said the plaintiff’s “product including the coloring matter is free to all who can make it”, provided of course, “no extrinsic deceiving element is present.”
In the third place the plaintiff has no monopoly on the use of the word “Cola” in the name of its beverage. It has been held that the word is generic and therefore may be used in the name of a cola drink by any one who chooses to make such a beverage. Dixi-Cola Laboratories, Inc., v. Coca-Cola Co., 4 Cir., 117 F.2d 352, certiorari denied 314 U.S. 629, 62 S.Ct. 60, 86 L.Ed. 505, and cases cited. In fact counsel for the plaintiff in the case at bar does not contend otherwise. Therefore, the plaintiff’s claim of trade-mark infringement rests upon the defendant’s use of the word “Polar” in conjunction with the word “Cola” as the name for its drink.
In support of this contention of infringement the plaintiff points to the similarities of “Polar” and “Coca” in number and arrangement of vowels. But on the issue of trade-mark infringement words are not to be compared syllable by syllable, vowel by vowel and consonant by consonant. Instead they are to be compared as ordinary purchasers of soft drinks would compare them, that is, on the basis of similarities in their general appearance both in construction and in over-all impression on the eye. Thus the type, as script or block for instance, in which alleged infringing words are printed, the color thereof, and the color and composition of the background upon which they appear, as well as the spelling of the words themselves, are important considerations on the issue of trade-mark infringement. Furthermore, words are to be considered “in connection with other similar words in use in the same general field”. Thomas Kerfoot & Co., Ltd., v. Louis K. Liggett Co., 1 Cir., 67 F.2d 214, 215, and cases cited. Without elaborating on the facts already stated it will suffice to say that our own visual inspection of the exhibits in this case leads us to the conclusion that the court below not only was not clearly in error but instead was amply justified in its conclusion that the defendant’s labels differ so much from the plaintiff’s advertising (it does not label its bottles) that so far as appearance is concerned the defendant’s use of “Polar Cola” does not infringe the plaintiff’s trade-mark “Coca-Cola”.
But the plaintiffs contention is not so much that its and the defendant’s names in their respective settings look alike as that when spoken they sound alike. It says that the words “Polar Cola” and “Coca-Cola”, when spoken in bars or taverns, which are frequently noisy places and where it and the defendant principally if not exclusively meet in competition, sound so similar as to cause consumer confusion. And in addition it says, and stresses, that the similarity in sound between the names is so marked as not only to permit but also actively to encourage the passing off of the defendant’s product on orders for the plaintiff’s. Thus the similarity in sound becween the names is urged in support of-both the ground of trade-mark infringement and the ground of unfair competition. Since the same facts are said to support both grounds (see Armstrong Co. v. Nu-Enamel Corp., 305 U.S. 315, 325, 59 S.Ct. 191, 83 L.Ed. 195) and since the test of both grounds is the same, we can dispose of two phases of the case on one consideration of the question of the verbal similarity of the names.
It appears that cola drinks, so called, are not frequently sold as such in bars and taverns. It appears that the principal use' of cola beverages in such establishments is either as a chaser or as a mixer with spirits, usually rum or whiskey, and that when so used, as well as when dispensed alone, the drink is usually poured by the bartender at the bar from the bottle in which it came from the manufacturer into the glass served to the customer. Thus customers in bars and taverns seldom know by visual inspection what kind of cola beverage is served to them. And the evidence is that in the vast majority of cases they do not care. There is testimony that most customers order spirits and a cola drink by asking for a “Cuba Libre” (rum- and a cola beveragq mixed) or rum and cola or “coke”, or whiskey and cola or “coke”, or rum or whiskey with a cola or “coke” chaser, that few customers specify the brand of whatever spirit they may wish served with the cola drink, and that still' fewer ever specify any particular brand of cola beverage. The record is devoid of statistics — probably such statistics do not exist — but on the record as it stands we feel on safe ground in assuming that only a very small percentage of the persons who order a cola drink and a spirit in bars and taverns ever place specific orders for Coca-Cola. Therefore, we conclude, since the plaintiff has no right to the names “Cuba Libre” or “cola”, and in this case asserts no right to the name “coke”, that relatively very few opportunities ever arise for passing off the defendant’s drink in bars and taverns on specific orders for the drink manufactured by the plaintiff.
The evidence upon which the plaintiff relies, and the only evidence in the case, to show specific instances of passing off by bartenders of the defendant’s beverage on categorical orders for the plaintiff’s Coca-Cola was given by investigators hired by the plaintiff. These men made repeated visits to bars and taverns in and around Boston in which the defendant’s beverage was sold, and there asked specifically for “Coca-Cola”, usually in conjunction with an order for rum or whiskey. They took note of what was served to them and found that sometimes they received what they ordered, sometimes were given the defendant’s beverage, and on an appreciable number of occasions were given some other cola type drink. The court, below found that of 82 separate establishments visited, 47 on one or more occasions served defendant’s product on specific orders for “Coca-Cola”, and in the remaining 35 establishments the bartenders responded to 201 specific orders for “Coca-Cola” by serving Royal Crown Cola 31 times, Castle Rock Beverages 28 times, Pepsi-Cola 25 times, Coca-Cola 24 times and miscellaneous brands 93 times.
There is no evidence that the defendant ever suggested in sales talks or advertising that bartenders substitute its drink on specific orders for the plaintiff’s, and the court below found as a fact that it had never done so. Nevertheless, there is testimony that in some instances when the plaintiff’s investigators called the bar-waiter’s attention to the substitution and the waiter admitted that a substitution had been made, they said to the waiter, “They (meaning the names Polar Cola and Coca-Cola) both sound alike, don’t they?” and the waiter replied, “Yes, they do.” The plaintiff relies heavily upon this testimony to show that the defendant by its choice of the name “Polar Cola” induced bartenders to pass off its product on orders for Coca-Cola. But obviously the question asked of the waiters has all the familiar vices of the leading question, and in addition it leads directly, almost inescapably, to a self-serving answer. We think it clear that this testimony falls short of proving clear error in the district court’s finding that the only inducement the defendant held out to bartenders to substitute its drink for the plaintiff’s was the inducement of a lower price (the defendant’s drink is about one-half as expensive as the plaintiff’s) and that inducement it was of course free to offer. All the defendant did, therefore, to make substitution by bartenders possible was to manufacture a drink almost if not quite identical with the plaintiff’s, which it had an established legal right to do, and all it did to make such substitution likely was to sell its drink at about half the price of the plaintiff’s, which it certainly was within its rights in doing. It seems to us to go without saying that such conduct on the defendant’s part falls far short of constituting the legal wrong described in Warner & Co. v. Lilly & Co., 265 U.S. 526, 530, 531, 44 S. Ct. 615, 68 L.Ed. 1161, of designedly enabling and inducing its retail dealers to defraud their customers by palming its product off on them as the plaintiff’s.
Only minor matters remain for our consideration.
The plaintiff contends that the evidence conclusively establishes that the defendant itself, at its bottling plant in Salem, passed off its product for Coca-Cola. This contention, like the preceding one, rests exclusively upon the testimony of the plaintiff’s investigators. It appears that these young men, posing as employees of a local retail dealer who in past years had purchased the defendant’s products, went to the defendant’s plant on several occasions in the summer of 1944. First they telephoned to the defendant’s plant that their ostensible employer would like some of the defendant’s products, then they drove to its bottling plant by automobile. On their first visit, after some friendly banter with the defendant’s female employees, they ordered five cases of soft drinks and then went into the back room to select what they wanted. They chose one case of Polar Cola and four cases of other unrelated soft drinks, paid for their purchase, pt»£ the cases in their car and drove away. On their next visit they asked for a case of “coke” but were told that none was available. • On their third visit they again asked for “coke”, as well as other soft drinks, were given a case of Polar Cola with their order, and again paid for their purchase and drove away with it. On their fourth visit, mindful of their instructions to order “coke” on two occasions before they ordered Coca-Cola, they ordered the latter by name. They were given a case of Polar Cola which they paid for and took away without objection. They testified that they observed signs on the defendant’s establishment indicating that it was the bottling plant of “Snow Crest Beverages” and saw no reference there by sign or otherwise to Coca-Cola.
On this evidence the court below found that any reasonable person in the position of the defendant’s employees would have supposed that when the plaintiff’s agents asked for Coca-Cola they were asking for the product which without assistance they had themselves selected from the back room on their first visit; which on two occasions they had asked for as “coke” and on one of those occasions ‘had accepted without complaint on that order; and which was the sort of product any normal customer would expect to get from a plant which was obviously not a Coca-Cola bottling plant. Therefore, the court below found as an ultimate fact that the defendant’s employees believed, and were justified in believing, that when the plaintiff’s investigators asked for Coca-Cola, for reasons peculiar to themselves, they meant not Coca-Cola but Polar Cola. The sufficiency of the evidence recited above to support these findings of. fact does not seem to us to call for demonstration.
The plaintiff contends, apparently seriously, that the district court committed error of law in that it measured the likelihood of the defendant’s mark to deceive by the erroneous test of the reaction thereto of the “careful buyer” of cola drinks rather than by the correct test of the .reaction of the “ordinarily careful buyer” of such beverages. We think that in making this contention the plaintiff gives wholly unwarranted significance to a typographical error. To be sure it would appear from the transcript of record that the district court quoted this court’s opinion in Thomas Kerfoot & Co., Ltd., v. Louis K. Liggett Co., 1 Cir., 67 F.2d 214, 215, as reading “the question * * * whether * * * two names are so similar * * * that one is likely to be mistaken for the other .by a careful buyer, is to be determined”, etc., when in fact the quotation should read “by an ordinarily careful buyer”. But in other places in its opinion the court below clearly indicates that it recognized and applied the correct test, and furthermore in the district court’s opinion as published in 64 F.Supp. 980, at page 990, the Kerfoot case is correctly quoted. It seems to .us, therefore, that this contention rests upon an obvious typographical error in the district court’s opinion as printed in the transcript. In consequence we think it entirely lacking in merit.
It does not seem to us that the plaintiff can make any valid objection to the use of the phrase “double size” on the defendant’s 12 oz. bottles even if the phrase does connote that those bottles are twice the size of the plaintiff’s. We see no reason why the defendant cannot legitimately call the attention of consumers to the fact that it offers twice as much beverage for the same price as the plaintiff.
Nor do we think the plaintiff can legitimately complain of the defendant’s use of “Delicious Refreshing” on some of its labels. These are common adjectives, they are peculiarly appropriate words to use in advertising a beverage, and we cannot concede that the plaintiff can acquire an exclusive right to use them for that purpose. We cannot see how the plaintiff has any right to complain of the defendant’s use of the words in the way it did, i.e., on labels otherwise having no resemblance to anything appearing in the plaintiff’s advertising.
The plaintiff’s contention that at a conference with defendant’s president before suit was brought, it gave the defendant such definite notice that its dealers were making a practice of passing off Polar Cola to their consumers on orders for Coca-Cola that the defendant was thereby obligated to investigate the matter and take steps to prevent its dealers from continuing the practice (see New England Awl Co. v. Marlborough Awl Co., 168 Mass. 154, 155, 46 N.E. 386, 60 Am.St.Rep. 377) is adequately answered by the finding and conclusion of the court below.
The plaintiff’s remaining contentions have been considered but are found to be so wholly lacking in merit that even their enumeration would unduly expand this opinion.
The judgment of the District Court is affirmed.
It is said that it now sells enough Coca-Cola syrup annually in the United States alone to provide every man, woman and child in the country with approximately 60 drinks of the beverage, and that in 1944 it, sold its billionth gallon of syrup, each gallon making approximately 12,0 drinks.
Two of these are wholly owned subsidiaries of The Goca-Oola Company.
There are 1050 local bottlers in the United States, over 1000 of which are independently owned.
The District. Court enumerated a dozen different cola type drinks marketed under names including the word “Cola”.
In accordance with a stipulation entered into by counsel for the parties in the court below, that court found that there was no evidence on which to make a finding, and no occasion for a finding, that the word “coke” ordinarily means “Coca-Cola”.
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:
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songer_counsel1
|
E
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
James P. PASQUALE, Plaintiff, Appellee, v. Robert H. FINCH, Secretary of Health, Education and Welfare, Defendant, Appellant.
No. 7371.
United States Court of Appeals First Circuit.
Dec. 2, 1969.
Morton Hollander, Atty., Department of Justice, with whom William D. Ruckelshaus, Asst. Atty. Gen., Lincoln C. Almond, U. S. Atty., and Robert V. Zener, and Judith S. Seplowitz, Attys., Department of Justice, were on brief, for appellant.
Frank R. Mazzeo, Providence, R. I., for appellee.
Before ALDRICH, Chief Judge, WOODBURY, Senior Circuit Judge, and COFFIN, Circuit Judge.
By designation.
COFFIN, Circuit Judge.
The government has appealed from a final judgment by the district court, Pasquale v. Cohen, 296 F.Supp. 1088 (D.R.I.1969), granting the plaintiff Pasquale’s motion for summary judgment and denying the defendant government’s similar motion. While resisting the government’s appeal on the merits, Pasquale also contends that the government lost its right to appeal by waiting 103 days before noticing its appeal. We consider the plaintiff’s procedural objections first.
The district court entered its final judgment on March 11, 1969, remanding the case to the Secretary of Health, Education and Welfare for a computation of the disability benefits to which the court had found Pasquale entitled. Rule 4(a) of the Federal Rules of Appellate Procedure provides that in all cases in which the United States or its agencies or officers are a party, all parties shall have 60 days in which to notice their appeal. That 60-day period expired on May 12, the 60th day — May 10 — being a Saturday. See Rule 6, F.R.Civ.P. The government did not appeal. However, Rule 4(a) also provides that the district court may extend the original appeal period for a period not to exceed thirty days “upon a showing of excusable neglect”. Due to a mistake in the handling of the mail within the Justice Department, government counsel there first learned about the March 11 judgment on June 4. Seven days later, on June 11 — the 30th day after May 12 — the government filed a motion pursuant to Rule 4(a) to extend the time period for filing the Notice of Appeal, based on an allegation and affidavit of the requisite “excusable neglect”. On June 23, the district court granted the government’s motion and extended the filing time until the next day, June 24. The government filed its formal Notice of Appeal on June 24, the 43rd day after May 12.
Three issues are presented. First, we agree with the view of the government, the district court, and the Second, Fourth, and Sixth Circuits that the district court was not required to make its ruling on the government’s motion within the 30-day period after May 12. C-Thru Products, Inc. v. Uniflex, Inc., 397 F.2d 952, 954-955 (2d Cir. 1968); Evans v. Jones, 366 F.2d 772, 773 (4th Cir. 1966); Reed v. People of the State of Michigan, 398 F.2d 800, 801 (6th Cir. 1968); see Reconstruction Finance Corp, v, Prudence Group, 311 U.S. 579, 582, 61 S.Ci. 331, 85 L.Ed. 364 (1941). To accept Pasquale’s reading of Rule 4(a) might require the court to make a hasty and unconsidered decision, as in a case such as ours where the motion was filed on the 30th day. But see Plant Economy, Inc. v. Mirror Insulation Co., 308 F.2d 275 (3rd Cir. 1962); 9 Moore’s Federal Practice, ¶ 204.13 [2] at pp. 974-978.
Second, although the government’s actual Notice of Appeal was filed on June 24 — the 43rd day after May 12— rather than on June 11, the 30th day, we are willing to assume, for purposes of this case only, that its motion to extend on June 11 served as a notice of appeal for purposes of Rule 4(a). See Fitzsimmons v. Yeager, 391 F.2d 849, 853 (3d Cir. 1968) (en banc), cert, denied 393 U.S. 868, 89 S.Ct. 154, 21 L.Ed.2d 137 (1968); Carter v. Campbell, 285 F.2d 68, 71-72 (5th Cir. 1960); 9 Moore’s Federal Practice, If 203.09, ff 204.13 [3] at p. 979. Obviously the proper procedure is to file the formal Notice of Appeal contemporaneously with the motion to extend — or at least within the 30-day extension period— and we look with disfavor on the government’s inexcusable failure to comply with the clear mandate of Rule 4(a).
What troubles us even more, however, is the district court’s holding that there was “excusable neglect” on the part of the government which justified this 30 day extension. The only excuse offered by the government for the fact that the March 11 judgment was not discovered until June 4 was that the notification was mislaid due to a mistake in the handling of the mail after it was received by the Justice Department. While we accord “great deference” to the district court’s ruling on “excusable neglect”, Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U.S. 215, 217, 83 S.Ct. 283, 9 L.Ed.2d 261 (1962), we believe that the excuse offered, without further justification and in light of other factors indicated below, suggests that the 90 day delay here was indeed inexcusable and not the result of the type of inadvertence which Rule 4(a) was intended to rectify.
Rule 73(a), F.R.Civ.P., was amended in 1966 and recodified in 1968 as Rule 4(a), F.R.App.P. Concerning that amendment, which deleted the words “based upon a failure of a party to learn of the entry of the judgment” which had previously followed the words “excusable neglect”, the Advisory Committee stated:
“In view of the ease with which an appeal may be perfected, no reason other . than failure to learn of the entry of judgment should ordinarily excuse a party from the requirement that the notice be timely filed. But the district court should have authority to permit the notice to be filed out of time in extraordinary cases where injustice would otherwise result.” 9 Moore’s Federal Practice, ¶ 73.01 [22] at p. 3126.
In our case, counsel of record who had argued the case in the district court— the Rhode Island U. S. Attorney and his Assistant — received proper notice of judgment in early March. They conveyed such notice to the Justice Department and did no more; counsel at oral argument indicated that the supplementary procedure designed to prevent such inadvertent inaction, by the automatic filing of a protective appeal if nothing is heard from the Justice Department after a certain number of days, was inexplicably not carried out. See Department of Justice Order No. 207-60, § 6. The government is given a 60-day appeal period under Rule 4(a) — rather than the 30-day period normally afforded private parties and state governments and agencies — in order to accommodate interoffice routing procedures. 9 Moore’s Federal Practice, fl 204.10 at pp. 923-924. Yet even though proper notice reached the Justice Department soon after March 11, it was apparently more than two months before the internal routing procedure finally brought such' notice to the attention of the responsible government attorney; indeed, it appeared from oral argument that it was Pasquale’s own inquiry about his benefits, rather than the routing procedure, which finally rendered notice to the responsible attorney. Even then, seven days passed before a Rule 4(a) motion to extend was filed, and even that may have been procedurally inadequate because the formal Notice of Appeal was not filed within the 30-day period which Rule 4(a) clearly requires. See discussion swpra.
We cannot say that such mishandling within the Justice Department after authorized counsel of record receives actual notice, particularly when combined with the other indicia of carelessness indicated above, justifies a court in extending the time for appeal. See Brahms v. Moore-McCormack Lines, Inc., 18 F.R.D. 502 (S.D.N.Y.1955); Lowry v. Long Island Rail Road Co., 370 F.2d 911 (2d Cir. 1966) ; Long v. Emery, 383 F.2d 392 (10th Cir. 1967); but see Resnick v. Lehigh Valley RR, 11 F.R.D. 76 (S.D.N.Y.1951). To say otherwise is so to enlarge a remedial power devised for the exceptional ease as to cover any kind of garden-variety oversight.
Nor does injustice result from our denial of an extension. A man who has erroneously — by the hearing examiner’s own statement — been denied disability benefits in his first effort to obtain them should not be denied those benefits because his second effort is begun one month too late (see infra), when such denial now depends on the government’s obtaining a one month extension for itself under the circumstances we have noted. It does not shock us that depriving the careless government of a month to which it is not entitled, see supra, may result in giving a deserving claimant a month to which he would otherwise, see infra, not be entitled. Accordingly, we hold that the district court erred in granting an extension to the government in the aforementioned circumstances, so that the government’s appeal is precluded.
This disposition would of course normally make unnecessary any consideration of the merits of the government’s appeal. However, we feel compelled to discuss the merits simply because we believe that the district court has rendered a mistaken interpretation of the relevant regulations which could misguide future claimants. Our discussion of this point requires a brief review of the facts in this case.
In August 1961 Pasquale applied to the Social Security Administration for disability insurance benefits, alleging that he had become disabled as a result of a back injury some two years earlier. This application was denied on January 10, 1962. Further adminstrative appeals followed, culminating in a denial of benefits at the highest administrative level— the Appeals Council — on July 5, 1963. Pasquale was notified that he could commence an action in the federal district court within 60 days but no appeal was taken.
On February 10, 1966, Pasquale applied a second time for disability insurance benefits for the same back injury. On May 3, 1967, a hearing examiner found that Pasquale was indeed entitled to benefits for his disability which began at least as early as November 30, 1961, but that such benefits could only be awarded from February 1965, one year before the filing of the second application. Social Security Act, § 223(a) (b), 42 U.S.C. § 423(a) (b) (1964). Pasquale concedes the validity of that holding, but contends that the hearing examiner should have reopened his initial application of August 1961, which reopening would probably have entitled Pasquale to benefits for the full period of his disablement. The hearing examiner's refusal to reopen was sustained by the Appeals Council, which reasoned that 20 C.F.R. § 404.957 — which provides for the reopening of a prior application, for good cause, within four years after its “initial determination”— did not apply to Pasquale because his first application had had its “initial determination” on January 10, 1962, four years and one month prior to the second application. Pasquale appealed this decision to the district court, which held that Pasquale could avail himself of that regulation since the “initial determination”, as those words were intended by § 404.957, had occurred on July 5, 1963, the day the January 1962 determination had become final. Pasquale v. Cohen, 296 F.Supp. at 1093. Thus, we are confronted with the issue whether the words “initial determination” as they appear in 20 C.F.R. § 404.957 refer to the first determination by the Social Security Administration or to the Administration’s final resolution of the first determination.
The reopening provision, 20 C.F.R. § 404.957, provides, in relevant part, that
“An initial or reconsidered determination of the Administration or a decision of a hearing examiner or of the Appeals Council which is otherwise final * * * may be reopened: ******
(b) * * * within 4 years after the date of the notice of the initial determination (see § JfOJf.907) to the party to such determination, upon a finding of good cause. * * * [Emphasis added.]
The reference to § 404.907 which immediately follows the critical words clearly indicates that the words “notice of initial determination” refer to the notice concerning the first determination by the Administration regarding a given application, for that section requires the Secretary to send notice to a claimant when the initial decision is made on his application and, if the application has been denied, to inform the claimant of his right to reconsideration. Pasquale’s § 404.907 “notice of initial determination” was sent on January 10, 1962, more than four years before his effort to reopen for “good cause” was commenced.
Moreover, the repeated use of the phrase “initial determination” throughout these regulations — e. g., 20 C.F.R. §§ 404.902, 404.905-404.914, 404.917, 404.-953, 404.954, and 404.956 — clearly indicates that the words refer to the first step in a four-step administrative appeals system: initial determination, §§ 404.905-404.908; reconsideration, §§ 404.909-404.916; hearing, §§ 404.917-404.940; and Appeals Council, §§ 404.-941-404.955. We have found no indication whatever that the phrase was used or intended in other parts of these regulations to mean anything but the first determination in the administrative scheme; the explicit reference to § 404.907 in the reopening provision itself is overwhelming evidence .that “initial determination” was intended to have the same meaning there that it clearly has in § 404.907 and throughout these regulations. That the determination must be final before it can be reopened, as § 404.957 itself requires, is in no way inconsistent with our interpretation of § 404.957 that the reopening period begins with the notice of initial determination.
The district court concluded that the reopening provision’s reference to “initial determination” was intended to mean the day on which the “initial determination” became final, here July 5, 1963. As we have indicated above, we can find nothing in the- regulations to suggest that those words were intended to have that meaning; sections 404.947 and 404.950 relate to the notice of the Appeals Council’s resolution of an application and had it been that determination which was intended by § 404.957, the reference there would have been to those sections, not to § 404.907.
The district court was concerned by the fact that the claimant who utilized all three administrative appeals might find that his four year “reopening” period had been substantially exhausted by his appeals, so that he would only have a short period in which to seek reopening rather than the full four years that one who made no appeals would have. We think this reasoning faulty for two reasons. First, to read the regulations as to the district court has would afford a much longer reopening period to the claimant who appealed than to the claimant who did not, thereby prejudicing the latter group. In other words, had Pasquaje not appealed, he would only have until January 10, 1966, but since he did take an appeal within the Administration, he would, under the district court’s interpretation, have until July 5, 1967 to seek reopening. More importantly, however, the district court overlooked .the fact that a claimant has a right to introduce new evidence at each level of his administrative appeal. See 20 C.F.R. §§ 404.914, 404.925-404.930, and 404.949. Thus, while he may be using up some of his time for reopening, he has a continuing opportunity to have all his evidence heard whenever he produces it. We think that it would be inequitable to afford an appealing claimant an additional four years for reopening after he has already had additional hearings before the administration.
Thus, we conclude that the clear meaning of § 404.957 also produces a more equal treatment of all claimants. We can conceive of circumstances where these regulations might be administered in such a manner as to prejudice an appealing claimant, i. e., by deliberately delaying a determination on appeal so as to preclude reopening. We cannot believe that a court would be powerless in such exceptional circumstances to allow a reopening to one who sought it promptly. It should be remembered, however, that the regulation in question only bears on a claimant’s right to reopen his application within the Administration; his right to appeal to the federal district court within 60 days of the Administration’s final decision exists in any event. 42 U.S.C. § 405(g) (1964); 20 C.F.R. § 404.951.
Appeal dismissed.
. In both Evans and Reed, the Notice of Appeal was filed within the 30-day extension period but no motion to extend was ever filed. Both Circuit Courts remanded to the district court for a determination of whether there was “excusable neglect” for the late filing of the Notice of Appeal. Without necessarily approving the court’s rule which disregards any need for the timely filing of a motion to extend — with its supporting affidavits — -we do agree with their rule that the district court’s decision on whether to extend for “excusable neglect” need not be made within the 30-day extension period.
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_procedur
|
B
|
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.
Mary W. ROYALL, Appellant, v. Louis YUDELEVIT and William H. Simons, Appellees.
No. 14608.
United States Court of Appeals District of Columbia Circuit.
Argued March 20, 1959.
Decided June 4, 1959.
Mr. Arthur L. Willcher, Washington, D. C., for appellant.
Mr. Morton Willcher, Washington, D. C. , also entered an appearance for appellant.
Mr. Ernest M. Shalowitz, Washington, D. C., with whom Mr. Sol M. Alpher, Washington, D. C., was on the brief, for appellee Yudelevit.
Mr. Louis E. Spiegler, Washington, D. C. , also entered an appearance for appel-lee Yudelevit.
Mr. Maurice Friedman, Washington, D. C., for appellee Simons.
Before Mr. Justice Burton, retired, and Prettyman, Chief Judge, and Wilbur K. Miller; Circuit Judge.
Sitting by designation . pursuant to Sec. 294(a), Title 28, U.S.Code.
WILBUR K. MILLER, Circuit Judge.
Mrs. Mary W. Royall brought this suit against Louis Yudelevit and William H. Simons to recover damages for wrongful foreclosure. The evidence at the trial tended to show that for many years Mrs. Royall had owned valuable real estate at 18th and Que Streets in the District of Columbia. In 1955, when the property was subject to a first trust of approximately $100,000, she was elderly and, due to illness and the recent death of her husband, mentally incompetent to realize the value of her property or to understand financial transactions. Being in need of funds, she employed an attorney to obtain an additional loan on her realty. He discussed the matter with Yudelevit, who said he would pay $8,500 for a 90-day note for $10,000 secured by a second deed of trust on the real property. The attorney then had Mrs. Royall execute a note for $10,000 and a second deed of trust securing its payment to one William Bogen, a straw party. Bogen endorsed the note and deed of trust to Yudelevit who delivered the agreed sum of $8,500. Of this amount Mrs. Royall had to pay $50 to Bogen for his services and $700 to her attorney for arranging the loan. From this evidence the jury would have been justified in inferring that Yudelevit was the real lender.
Yudelevit immediately sold the note to William H. Simons for $9,000. Upon default at maturity, Simons caused the trustees under the second deed of trust to sell the realty at public auction. The sale produced only about enough to pay the first and second trusts, so the result was that Mrs. Royall’s alleged equity of from $90,000 to $100,000 was eliminated.
Mrs. Royall alleged that Yudelevit and Simons were both engaged in lending money at usurious rates without having obtained a license to do so under § 26-601, D.C.Code (1951). Her theory was that, because Yudelevit and Simons were unlicensed when the former made the loan, the note and the deed of trust securing it were unlawful and void; that therefore the foreclosure was illegal, and that she suffered damages as a result thereof.
Yudelevit and Simons claimed to be innocent purchasers of the note for value before maturity, without notice of any infirmity in it or defense to it. They also alleged that when Weitzman, a purchaser after the foreclosure sale, resold the property, Mrs. Royall joined in the conveyance and received a part of the sale price; this, they said, estopped her to assert a claim against them.
The trial judge limited Mrs. Royall’s evidence to prima facie proof of a usurious transaction and thus would not permit her to show the appellees should have been but were not licensed under the statute. He said the question of damages would be taken up later if necessary. At the conclusion of her evidence the judge held in effect that a borrower who has paid usury may not recover from the lender the damages he claims to have sustained from the transaction, even though the loan contract was unlawful and unenforceable because the lender was subject to § 26-601 and had not obtained a license thereunder. He held that the illegality of the contract may be used by the borrower as a shield against its enforcement but not as a sword to recover damages against the lender.
Being of the view therefore that, even if a usurious loan contract were established by the evidence and even if Yudelevit and Simons were shown to have been violating the statute and interposed no defense to the action, Mrs. Royall could not recover damages alleged to have been caused by the foreclosure, the trial judge directed a verdict in favor of Yudelevit and Simons. Mrs. Royall appeals.
The first question is whether Mrs. Royall should have been permitted to introduce evidence to show that the appellees were doing business in violation of the statute, which is colloquially known as the Loan Shark Law of the District of Columbia, § 26-601, and which makes it “unlawful and illegal to engage in the District of Columbia in the business of loaning money upon which a rate of interest greater than six per centum per annum is charged on any security of any kind, direct or collateral, tangible or intangible, without procuring license * *
In Hartman v. Lubar, 1942, 77 U.S.App.D.C. 95, 133 F.2d 44, 45, Hartman and another borrowed approximately $900 from Orleans and gave in return a promissory note for $1,000 secured by a chattel deed of trust. Orleans endorsed the note to the District Finance Corporation. Thereafter Lubar, as trustee under the deed of trust, sued in replevin to recover the pledged chattels. During the trial Hartman offered to prove that Orleans was the principal stockholder and president of the District Finance Corporation, and that the loan was actually made by the corporation, which was engaging in the business of lending money in the District of Columbia at an interest rate greater than six per cent without having procured the license required by the statute. The trial court excluded the offered evidence and directed a verdict for the defendants.
In the course of our opinion reversing this action, we said:
“ * * * The general rule is that an illegal contract, made in violation of a statutory prohibition designed for police or regulatory purposes, is void and confers no right upon the wrongdoer. The present case comes under no exception to the general rule. Every consideration of public policy suggests that a contract made in violation of the Loan Shark Law should be unenforceable.”
Later in the Hartman opinion we said: “The evidence offered was competent, therefore, to show the illegality of the transaction and the resulting absence of title in the trustee, upon which appellee based his right to possession.” (Emphasis supplied.)
Thus we held that a usurious loan contract with a lender who is violating the statute is illegal and void and that proof of such violation should have been received; and that a deed of trust which is a product of such a void contract confers no title upon the trustees designated therein. We adhere to the views expressed in Hartman v. Lubar and hold that a borrower, who enters into a usurious contract which is void because the lender was violating the statute, may recover from the lender any damages sustained by reason of the void contract. A lender in a loan contract which is merely usurious may not be liable in damages. But if there is added to the situation the fact that the lender was not licensed as required by law, the loan contract is unlawful and void, and a foreclosure thereunder is wrongful and gives rise to an action for damages suffered therefrom.
Being a borrower, Mrs. Royall was a member of the class for whose protection the statute was enacted. She was therefore not in pari delicto with Yudelevit and her participation with him in its making did not bar her from asserting its illegality. Thomas v. City of Richmond, 1870, 12 Wall. 349, 355, 79 U.S. 349, 355, 20 L.Ed. 453; City of Parkersburg v. Brown, 1882, 106 U.S. 487, 503, 1 S.Ct. 442, 27 L.Ed. 238; Ring v. Spina, 2 Cir., 1945, 148 F.2d 647, 652-653, 160 A.L.R. 371.
It follows that, if the transaction was a usurious loan by Yudelevit and if he was violating the statute by failing to obtain a license, the note and the second deed of trust were void; and, having made the foreclosure possible by transferring the void note and deed of trust, he is liable for the damages resulting from Simons’ foreclosure (even if the latter was innocent throughout) unless he can establish an adequate affirmative defense.
If Simons took the note and deed of trust with notice or knowledge that Yudelevit had obtained them through a usurious loan contract made when he was violating the statute, then Simons unlawfully caused the foreclosure and is liable for any damages caused thereby, unless he can establish an adequate affirmative defense. As to Simons, the question is, not whether he was unlicensed, but whether he was a holder in due course.
Mrs. Royall had the right to elect whether to go into equity and ask that the sale be set aside, or to let the sale stand and ask for damages. Rogers v. Barnes, 1897, 169 Mass. 179, 47 N.E. 602, 38 L.R.A. 145; Missouri Real Estate Syndicate v. Sims, 1904, 179 Mo. 679, 78 S.W. 1006; Aultman & Taylor Co. v. Meade, 1905, 121 Ky. 241, 89 S.W. 137; Warren v. Susman, 1915, 168 N.C. 457, 84 S.E. 760; Burnett v. Dunn Commission & Supply Co., 1920, 180 N.C. 117, 104 S.E. 137; Sandler v. Silk, 1935, 292 Mass. 493, 198 N.E. 749; Peterson v. Kansas City Life Ins. Co., 1936, 339 Mo. 700, 98 S.W.2d 770, 108 A.L.R. 583; Black v. Burd, Tex.Civ.App.1953, 255 S.W.2d 553. As the property had passed into the hands of another who may have been quite innocent, Mrs. Royall properly elected to seek damages, for “Such a suit for damages at law is an especially appropriate remedy where an innocent purchaser buys at foreclosure, because it gives relief against the guilty rather than the innocent party.” Peterson v. Kansas City Life Ins. Co., 98 S.W.2d at page 775.
We conclude that Mrs. Royall should have been allowed to prove, if she could, that the transaction was a usurious loan to her by Yudelevit, that Yudelevit was at the time in violation of the loan shark statute, and that she suffered damages as a result of the foreclosure. Such proof, standing alone, would authorize the jury to return a verdict awarding appellant damages against Yudelevit. He and Simons should be permitted then to introduce evidence tending to show they were innocent transferees, or to establish any other defense they may have. If the jury should find against Yudelevit, and should also conclude from the evidence that Simons took the note and deed of trust with notice of the circumstances in which Yudelevit acquired them, a verdict for damages against Simons also would be warranted.
It follows that the District Court erred in directing a verdict for Yudelevit and Simons. We express no opinion as to the validity of the defense of estop-pel. The judgment is reversed and the cause remanded for a new trial in accordance with this opinion.
So ordered.
. Originally there were two other defendants but Mrs. Royall dismissed the complaint as to them.
. If Yudelevit should be found to be an innocent purchaser for value before maturity without notice of any infirmity or defense, the fact that he bought the note for less than its face value would be im* material.
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_genresp2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
UNITED STATES of America, Appellee, v. Carl A. PICCIOLI, Appellant.
No. 489, Docket 29521.
United States Court of Appeals Second Circuit.
Argued June 8, 1965.
Decided Oct. 29, 1965.
Philip Baroff, Bridgeport, Conn. (Charles Hanken, Bridgeport, Conn., on brief), for appellant.
Howard T. Owens, Jr., Asst. U. S. Atty. (Jon O. Newman, U. S. Atty., District of Connecticut), for appellee.
Before WATERMAN, FRIENDLY and SMITH, Circuit Judges.
FRIENDLY, Circuit Judge:
Piccioli was charged in a two-count indictment with violating 26 U.S.C. § 7302 by wilful failure to pay the special gambling tax, 26 U.S.C. § 4411, and to register, 26 U.S.C. § 4412, and was convicted on both counts before Chief Judge Timbers and a jury. He was sentenced on the first count to imprisonment for one year and a fine of $5,000; on the second, imposition of sentence was suspended and probation fixed at two years.
Piccioli was one of the proprietors of the Pin-Up Bar in Bridgeport. Special Agent Ripa of the I.R.S. testified (on cross-examination) that “Artie” Gjanci, a defendant in United States v. Costello, 352 F.2d 848 (2 Cir. 1965), instructed that, through arrangement between himself and Piccioli, Ripa could place bets with Piccioli and that, when doing this by phone, he should say “This is Bill for Artie.” Thereafter Ripa placed numerous horse race bets with Piccioli. There was evidence of furtiveness on Piccioli’s part in accepting Ripa’s wagers and paying his winnings. During the October 8 raid described in the Costello opinion, Special Agent Macolini obtained nearly $500 in cash and checks from Piccioli’s pockets, along with three issues of a horse racing publication used by bookmakers. On that occasion in one hour a Connecticut State Trooper, engaged in the. search of the Pin-Up Bar, received 23 calls from persons who were seeking to ascertain odds or, as the jury could properly infer, were about to place bets. Since this and other evidence warranted conviction, we turn to Piccioli’s claims of error:
(1) Our Costello opinion details the publicity on October 8 and 9. When Piccioli was put to plea in New Haven on October 21, he requested that trial be had in Bridgeport, where the publicity had been most intense. On November 30 and December 1, four juries to try Piccioli’s and other gambling cases were selected from the same venire, apparently with the understanding that the cases would be tried seriatim; the record shows no objection to that procedure and, when Piccioli’s jury was being selected, the only venireman who recalled reading or hearing of his case was not chosen. His trial was adjourned until after that of Costello, Marchetti and Gjanci, which was widely publicized in the Bridgeport press. Piccioli’s name figured in this, he being the “Carl” referred to in our opinion in that case; the papers reported he had been subpoenaed by the Government and had been excused at his lawyer’s request. When Piccioli’s case was called for trial on December 15, his counsel sought a new jury or a continuance because of the publicity given the Costello trial and Piccioli’s involvement in it. The judge denied this but said he would inquire of the jurors, which he did without objection from counsel. When asked whether they had read or heard anything about the case or about Piccioli, there was no response.
In this aspect Piccioli’s case is not significantly different from that of Costello, Marchetti and Gjanci. No objection on the score of the publicity on October 8 and 9 was made before the adverse verdict. The only issue relating to publicity which was brought to the judge’s attention prior to trial was the newspaper accounts of the trial of Costello, Marchetti and Gjanci. A correct report of the trial and conviction of other persons for the same type of offense would not in and of itself be prejudicial, even when, as here, one of them figured in the evidence at the later trial; and there is no reason to suppose the jurors would read into the request that Piccioli be excused a claim of the privilege against self-incrimination. Moreover, we see no reason why the judge had to disbelieve the jurors’ responses that the reports had not come to their attention.
(2) Another point has more merit but, in our view, not enough to demand reversal. Special Agent Macolini testified that after completing his search at the Pin-Up Bar, he told Piccioli and the latter’s attorney, Mr. Hanken, who had entered the kitchen area in pursuit of a cup of coffee shortly after the raid, that he would like to ask “a few personal history questions”; that the attorney said he had instructed Piccioli not to answer questions; that Macolini then submitted his question sheet to Mr. Hanken; and that the attorney allowed Piccioli “to answer those personal history questions that were on the sheet.” No objection was made to this, and the subject was not revived by counsel in cross, redirect, or recross examination. At the conclusion of Macolini’s testimony, the judge reverted to this episode and, over objection by defense counsel, elicited an affirmative answer from Macolini to a question, “But the defendant was instructed in your presence by Mr. Hanken not to answer any questions with respect to whether or not he was accepting horse wagers on the premises.” After listening to argument, the judge said, “I simply wanted to get it clear in my mind, and I assume the jury did also, as to precisely what happened,” and then instructed “that, once the defendant was placed under arrest, it was his privilege under the Constitution not to answer any questions that might tend to incriminate him under Federal law * * ■ * What brought the question on my part was, I was not quite sure what was meant by personal history questions, as distinguished from whatever questions he declined to answer.” In submitting the case to the jury, the judge recounted Macolini’s testimony and added that Mr. Hanken had a right to advise Piccioli not to answer questions and that Piccioli had a constitutional right not to do so.
Inquiry designed to establish that a defendant claimed the privilege against self-incrimination before a grand jury or a legislative committee or failed to testify at a former trial has been held in several cases to constitute reversible error. See Grunewald v. United States, 353 U.S. 391, 415-424, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957); Stewart v. United States, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961); United States v. Gross, 276 F.2d 816 (2 Cir. 1960). If the privilege attaches at the moment of arrest, as the judge assumed, inquiry to show its assertion at that time would seem equally banned. And we would reach the same conclusion although that assumption is wrong and the right of an arrested person not to respond rests simply on the lack of any power in the police to compel testimony — a hotly controverted issue which we need not here decide. Silence under such circumstances, at least when, as in this case, it results from the advice of an attorney, affords no fair ground for relevant inference, see Kelley v. United States, 99 U.S.App.D.C. 13, 236 F.2d 746, 749 (1956); yet a jury would be likely to give it not inconsiderable weight. As said by Mr. Justice Harlan in Grunewald, supra, 353 U.S. at 424, 77 S.Ct. at 984, with respect to a claim of privilege before a grand jury, “the dangers of impermissible use of this evidence far outweighed whatever advantage the Government might have derived from it if properly used.” Cf. McCarthy v. United States, 25 F.2d 298 (6 Cir. 1928); United States v. Pearson, 344 F.2d 430 (6 Cir. 1965).
The judge’s question, for which the cold record affords no apparent reason, was thus ill-advised, to say the least. Nor was it cured, as the Government urges, by his subsequent instruction that the lawyer and Piccioli had been acting within their rights; the proper caution would have been that the evidence was to be disregarded and no inference drawn therefrom. But we cannot see that the question and answer added anything so significant'to what Macolini had testified on his direct examination without objection as to afford sufficient basis for reversal, 28 U.S.C. § 2111, F.R.Cr.P. 52(a).
(3) The final point requiring discussion is the contention that the judge took impermissible considerations into account in passing sentence.
Piccioli was sentenced on January 11, 1965, along with defendants in other gambling tax cases. In explaining the sentences in the Costello, Marchetti and Gjanci cases, Chief Judge Timbers made certain remarks which we set forth in part in the margin. He followed these by recommending that the United States Attorney forward a transcript of them and of the evidence to Connecticut prosecutors. Later, on February 8, before taking up the criminal calendar in New Haven, Chief Judge Timbers made a further statement about the gambling tax cases with which he had been concerned. In this statement, some nine printed pages long, he praised the work of the United States Attorney and his staff, of the Intelligence Division of the Internal Revenue Service, and of the Connecticut State Police; deprecated the absence of cooperation by the local Bridgeport police and “the apparent lack of willingness or ability on the part of certain of the prosecutors (in one instance under the pretense of ‘public apathy,’ which is pure, unadulterated bunk) and judges of the state circuit court to back up the local and state police in enforcing the gambling laws of this state”; and noted “the ground swell of public support throughout the state for what has been accomplished by this latest federal crackdown upon gambling and organized crime.” After announcing his intention to impose stiff sentences for violation of the federal gambling tax and related laws, he ended by proposing that a Connecticut Conference on Law Enforcement be convened, and outlined a detailed program for its membership and activities.
The circumstances under which an appellate court will interfere with a sentence within the permissible maximum because of the judge’s reliance on allegedly irrelevant criteria, see United States v. Wiley, 267 F.2d 453 (7 Cir. 1959), are and, so long as such sentences are generally unreviewable, ought to be rare. It would be wholly appropriate for the judge to look beyond Piccioli’s failure to register and buy a $50 tax stamp and to consider the attendant substantial losses of revenue through his failure to pay the percentage tax on wagers, of which the judge had heard abundant evidence, even though that crime had not been charged. Cf. United States v. Doyle, 348 F.2d 715 (2 Cir. 1965). Piccioli’s argument is thus reduced to the claim that the judge was enforcing not simply the federal laws which were his proper concern but state laws which were not. The record does suggest that the judge’s indignation at what he had learned at the trials and from presentence reports may have led to statements in the prosecutorial area beyond his function. On the other hand, since he could have taken into account a record of state crimes and charges unrelated to the federal offense proved, it would be strange if he could not consider that the evidence showed a violation of state gambling laws and the effect of gambling on other state crime. Cf. United States v. Doyle, supra.
Piccioli’s other points either are dealt with in United States v. Costello or lack sufficient merit for discussion.
Affirmed.
. Presumably this is what is meant by the statement in Fagundes v. United States, 340 F.2d 673, 677 (1 Cir. 1965), characterizing the right to remain silent on arrest as “akin to the right to decline to take the witness stand in one’s own defense.” See also Helton v. United States, 221 F.2d 338, 340-342 (5 Cir. 1955); but see Kelley v. United States, 99 U.S. App.D.C. 13, 236 F.2d 746, 750-751 n. 10 (1956).
. See 8 Wigmore, Evidence § 2252, at 328-29 & n. 27 (McNaughton rev. 1960); Morgan, The Privilege Against Self-Incrimination, 34 Mmn.LJtev. 1, 27-30 (1949); Note, The Privilege Against Self-Incrimination: Does It Exist in the Police Station?, 5 Stan.L.Rev. 457 (1953); 1 Morgan, Basic Problems of Evidence 146-48 (1961); Maguire, Evidence of Guilt § 2.03, at 15-16 (1959).
. “The Court regards these charges as serious. It is faced with the duty of imposing sentence following a finding of guilty by a jury.
“While it is true that these are tax cases, prosecutions authorized hy the revenue laws of the United States, it is also a fact, with respect to which the Court is not blind, that it is the clear intent of Congress, in authorizing such prosecutions, to deal with a vice, namely that of gambling.
“While it is perfectly true, and no one knows better than the Court, that the charge against these defendants was not that of gambling, it is equally true that the prosecutions never would have been brought and there never would have been convictions but for extensive gambling and accepting of wagers as demonstrated by the evidence.
“As this Court has observed before, one of the handmaidens of vice in any community — here graphically demonstrated in the Bridgeport community— one of the handmaidens of vice is that of gambling. The other two, with which this Court has dealt severely and will continue to deal severely, are those of narcotics and prostitution. Of course it is well known that the revenue from gambling is the financial basis or keystone upon which much of crime is built.
“The Court does not intend, in imposing sentence here, to deal out the slap on the wrist which has characterized sentences imposed by the State Courts for violations of the State gambling laws. The Court intends, by the sentences here to be imposed, to serve a stern warning, once again, as the Court has repeatedly in the past, that the United States is not powerless to deal effectively with violations of the Federal revenue laws and particularly the law here involved. It will do so, if need be, alone.”
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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sc_lcdispositiondirection
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine 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
BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES, et al. v. CITY OF NEW YORK et al.
No. 84-1923.
Argued February 26, 1986
Decided June 2, 1986
Powell, J., delivered the opinion for a unanimous Court.
Edwin S. Kneedler argued the cause for petitioners. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Getter, William Ranter, and Howard S. Scher.
Frederick A. 0. Schwarz, Jr., argued the cause for respondents. With him on the brief were Frederick P. Schaffer, Michael D. Young, Robert Abrams, Attorney General of New York, Robert Hermann, Solicitor General, Paul M. Glickman and Andrea Green, Assistant Attorneys General, Leonard S. Rubenstein, Ambrose Doskow, and Richard L. Claman
Briefs of amici curiae urging affirmance were filed for the State of Alabama et al. by Neil F. Hartigan, Attorney General of Illinois, Roma J. Stewart, Solicitor General, Charles A. Graddick, Attorney General of Alabama, Steve Clark, Attorney General of Arkansas, Jim Smith, Attorney General of Florida, Corinne K. A. Watanabe, Attorney General of Hawaii, Thomas J. Miller, Attorney General of Iowa, David L. Armstrong, Attorney General of Kentucky, William J. Guste, Jr., Attorney General of Louisiana, James E. Tierney, Attorney General of Maine, Stephen H. Sacks, Attorney General of Maryland, Hubert H. Humphrey III, Attorney General of Minnesota, Vicki Sleeper, Special Assistant Attorney General, Edward Lloyd Pittman, Attorney General of Mississippi, William L. Webster, Attorney General of Missouri, Robert M. Spire, Attorney General of Nebraska, Brian McKay, Attorney General of Nevada, W. Cary Edwards, Attorney General of New Jersey, Paul Bardacke, Attorney General of New Mexico, Nicholas Spaeth, Attorney General of North Dakota, Michael C. Turpén, Attorney General of Oklahoma, Mark V. Meierhenry, Attorney General of South Dakota, Jim Mattox, Attorney General of Texas, Charles G. Brown, Attorney General of West Virginia, Bronson C. La Follette, Attorney General of Wisconsin, and A. G. McClintock, Attorney General of Wyoming; for the City of Chicago by James D. Montgomery; for the American Bar Association by William W. Falsgraf and John H. Pickering; for the American Civil Liberties Union et al. by Burt Neubome and Charles S. Sims; for the American Psychiatric Association by Joel I. Klein; for the Association of the Bar of the City of New York by Robert B. McKay, Sheldon H. Elsen, John F. K. Cassidy, Peter L. Zimroth, Alexander R. Sussman, Robinson B. Lacy, and John C. Sullivan; and for the National Institute of Municipal Law Officers by Roy D. Bates, William I. Thornton, Jr., John W. Witt, Roger F. Cutler, and George Agnost.
Justice Powell
delivered the opinion of the Court.
This class action was brought pursuant to 42 U. S. C. § 405(g) challenging an internal policy of the Secretary of Health and Human Services that had the effect of denying disability benefits to numerous claimants who may have been entitled to them. The issues presented are whether the District Court correctly included within the class (i) claimants who had received a final decision on their individual claims for benefits more than 60 days prior to the filing of this action, and (ii) other claimants who had not exhausted their administrative remedies.
I
The Federal Government provides benefits to disabled persons under two distinct programs administered by the Social Security Administration (SSA). The Social Security Disability Insurance Program (SSD) established by Title II of the Social Security Act, 49 Stat. 622, as amended, 42 Ú. S. C. §401 et seq., pays benefits to disabled persons who have contributed to the program and who suffer from a mental or physical disability. The Supplemental Security Income Program (SSI) established by.Title XVI of the Act, 86 Stat. 1465, as amended, 42 U. S. C. § 1381, provides benefits to indigent disabled persons. Both statutes define “disability” as the “inability to engage in any substantial gainful activity....” §§ 423(d)(1)(A), 1382c(a)(3)(A). An individual is found to be under a disability only if “his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” §§ 423(d)(2)(A), 1382c(a)(3)(B).
Pursuant to statutory authority, the Secretary of Health and Human Services (Secretary) has adopted complex regulations governing eligibility for SSD and SSI payments. 20 CFR pt. 404, subpart P (1985) (SSD); 20 CFR pt. 404, pt. 416, subpart I (1985) (SSI). The regulations for both programs are essentially the same and establish a five-step “sequential evaluation” process. The first step determines whether the claimant is engaged in “substantial gainful activity.” If he is, benefits are denied. 20 CFR § § 404. - 1520(a),(b), 416.920(a),(b) (1985). If he is not engaged in such activity, the process moves to the second step, which decides whether the claimant’s condition or impairment is “severe” —! e., one that significantly limits his physical or mental ability to do basic work activities. If the impairment is not severe, benefits are denied. §§404.1520(c), 416.920(c). If the impairment is severe, the third step determines whether the claimant’s impairments meet or equal those set forth in the “Listing of Impairments” (listings) contained in subpart P, appendix 1, of the regulations, 20 CFR §§ 404.1520(d), 416.920(d). The listings consist of specified impairments acknowledged by the Secretary to be of sufficient severity to preclude gainful employment. If a claimant’s condition meets or equals the listed impairments, he is conclusively presumed to be disabled and entitled to benefits. If the claimant’s impairments are not listed, the process moves to the fourth step, which assesses the individual’s “residual functional capacity” (RFC); this assessment measures the claimant’s capacity to engage in basic work activities. If the claimant’s RFC permits him to perform his prior work, benefits are denied. §§404.1520(e), 416.920(e). If the claimant is not capable of doing his past work, a decision is made under the fifth and final step whether, in light of his RFC, age, education, and work experience, he has the capacity to perform other work. §§ 404.1520(f), 416.920(f). If he does not, benefits are awarded.
The determination whether an individual is disabled is made initially by a state agency acting under the authority and control of the Secretary. 42 U. S. C. §§ 421(a), 1383b(a); 20 CFR §§404.1503, 416.903 (1985); see Heckler v. Day, 467 U. S. 104, 106, and n. 4 (1984). All decisions by the state agency are subject to Quality Assurance Reviews by the Regional Office and by the Central Baltimore Offices of SSA. If the responsible SSA officials determine during either review that a state agency erred, the case is “returned” to the State for correction.
The disappointed claimant is afforded a three-stage administrative review process beginning with de novo reconsideration by the State of the initial determination. 20 CFR §§ 404.909(a)(1), 416.1409(a) (1985). If a claimant is dissatisfied with the state agency’s decision on reconsideration, he is entitled to a hearing by an administrative law judge (ALJ) within SSA’s Office of Hearings and Appeals. 42 U. S. C. § 405(b)(1) (1982 ed., Supp. II), 42 U. S. C. § 1383(c)(1); 20 CFR §§404.929, 416.1429, 422.201 et seq. (1985).
If the AL J’s decision is adverse to the claimant, the claimant may then seek review by the Appeals Council. 20 CFR §§404.967-404.983, 416.1467-416.1483 (1985). Proceeding through these three stages exhausts the claimant’s administrative remedies. Following the determination at each stage, a disappointed claimant is notified that he must proceed to the next stage within 60 days of notice of the action taken or the decision will be considered binding. E. g., 20 CFR §§404.905, 404.909(a)(1), 416.1405, 416.1409(a), 404.-955(a), 404.968(a)(1), 416.1455(a), 416.1468(a) (1985). Thereafter, he may seek judicial review in federal district court, pursuant to 42 U. S. C. § 405(g). See 42 U. S. C. §§ 421(d), 1383(c)(3); 20 CFR §§404.900(a)(5), 404.981, 416.1400(a)(5), 416.1481, 422.210 (1985).
II
On February 8, 1983, respondents the City of New York, the New York City Health and Hospitals Corporation, and two state officials, suing on their own behalf and as parens patriae, together with eight named individuals, brought this class action against the Secretary and the Commissioner of SSA. They sought relief on behalf of all individuals residing in the State who had applied for or received SSD or SSI benefits on or after April 1, 1980, who had been found by petitioners to have a severe mental impairment, and whose applications for benefits either had been or were to be denied, or whose benefits had been or were to be terminated, based on petitioners’ determination that the claimants were capable of substantial gainful employment.
The gravamen of respondents’ complaint was that petitioners had adopted an unlawful, unpublished policy under which countless deserving claimants were denied benefits. They contended that the policy mandated a presumption — applicable at the level of the initial state psychiatric assessment— that a failure to meet or equal the listings was tantamount to a finding of ability to do at least unskilled work; that the presumption led to routine denials of benefits to eligible claimants; and that such a presumption was arbitrary, capricious, and violative of the Constitution, the Social Security Act, and the applicable regulations. Respondents claimed that this internal policy had the effect of eliminating steps four and five from the sequential evaluation process, and thus ignored the requirement for an individualized RFC assessment to determine whether a claimant with a severe condition is nonetheless able to work. They alleged that the policy was never published in the Federal Register as required by the Administrative Procedure Act, but was nonetheless implemerited through various internal memoranda and the “returns” process by which SSA sends cases back to the States for correction. Respondents contended that failure to make the policy known to claimants denied the individual plaintiffs and class members due process of law.
A
Following a 7-day trial, the District Court held that from 1978 until at least the early months of 1983, SSA followed the covert policy alleged by respondents and that the policy was illegal. City of New York v. Heckler, 578 F. Supp. 1109, 1115 (EDNY 1984). The court noted that the “Act and its regulations require the Secretary to make a realistic, individual assessment of each claimant’s ability to engage in substantial gainful activity. See Heckler v. Campbell, [461 U. S. 458] (1983). The class plaintiffs did not receive that assessment.” Id., at 1124. Rather, as respondents alleged, SSA had consistently “followed a policy which presumes that mentally disabled claimants who do not meet or equal the listings necessarily retain sufficient residual functional capacity to do at least ‘unskilled work.’” Id., at 1115. The District Court further found that these tainted RFC assessments by state review physicians were subsequently given “great weight” by ALJ’s in the administrative appeal process. Id., at 1125. Moreover, “[t]he means of enforcement of the policy, through internal memoranda, returns, and reviews, has meant that the affected SSD or SSI applicant as well as counsel, social workers and advisers for a long time were unaware of its existence.” Id., at 1115. The court stated that evidence of the “fixed clandestine policy against those with mental illness” was overwhelming. Ibid.
The District Court certified a class, and decided that the class properly included claimants who had not exhausted administrative remedies. Relying on Mathews v. Eldridge, 424 U. S. 319 (1976), the court concluded that this was an appropriate case in which to waive the statutory exhaustion requirement. In the court’s view, both parts of the Eldridge test were satisfied here: the claims were collateral to any claim for benefits, and the harm imposed by exhaustion would be irreparable.
Similarly, the District Court decided that the class properly included those who had not complied with the requirement that a claimant seek judicial review within 60 days of the Secretary’s final decision or “within such further time as the Secretary may allow.” 42 U. S. C. § 405(g). The court noted that the 60-day requirement is not jurisdictional, but rather is a statute of limitations waivable by the parties. Mathews v. Eldridge, supra, at 328, n. 9; Weinberger v. Salfi, 422 U. S. 749, 763-764 (1975). Observing that petitioners had made no argument concerning this requirement until their post-trial brief, the court found that “the same reasons which justify implying waiver of the exhaustion requirement are stronger for the sixty day requirement because the statute of limitations is not, as is the exhaustion requirement, ‘central to the requisite grant of subject-matter jurisdiction.’ Weinberger v. Salfi, 422 U. S. 749, 764... (1975).” 578 F. Supp., at 1124.
As a remedy, the District Court ordered the Secretary to reopen the decisions denying or terminating benefits, and to redetermine eligibility. As interim relief, the court directed the Secretary to reinstate benefits of all class members who had previously been entitled to benefits but who were subsequently terminated, until the claimant’s eligibility was properly determined.
B
The Court of Appeals for the Second Circuit affirmed. City of New York v. Heckler, 742 F. 2d 729 (1984). On appeal petitioners did not challenge the District Court’s findings of fact or ruling on the merits, but only raised contentions respecting the District Court’s definition of the appropriate class, and the interim relief awarded. With respect to the composition of the class, petitioners asserted that the District Court lacked jurisdiction under § 405(g) over most class members, including (i) claimants who failed to exhaust administrative remedies, and (ii) claimants whose right to pursue administrative or judicial review had lapsed by the time this action was commenced. Id., at 734.
The Court of Appeals rejected petitioners’ argument that the District Court lacked jurisdiction over the claims of class members who had failed to exhaust their administrative remedies. It upheld the District Court’s finding that the harm caused by the wrongful denials was irreparable. While the court did not believe that the claims were “wholly” collateral to claims for benefits, it was satisfied that the class was complaining “fundamentally of a procedural irregularity and not of the Secretary’s substantive standards of eligibility.” Id., at 737. Moreover, the Court of Appeals believed it was significant that the District Court was not asked to and did not rule on the merits of the underlying benefit claims.
The court then rejected petitioners’ contention that the District Court should not have included within the class those claimants who failed to seek judicial review within 60 days of an adverse decision by the Secretary. The court agreed with the District Court that the 60-day limitation is not a jurisdictional requirement, but rather is a statute of limitations. Id., at 738, citing Eldridge, supra, at 328, n. 9; Salfi, supra, at 763-764. The Secretary’s secretive conduct justifled tolling the period “during the time that SSA’s policy of applying the challenged presumption concerning residual functional capacity remained operative but undisclosed.” 742 F. 2d, at 738.
On petition for rehearing, the same panel of the Court of Appeals, per Judge Newman, denied rehearing and in so doing rejected petitioners’ argument that passage of the Social Security Disability Benefits Reform Act of 1984, Pub. L. 98-460, 98 Stat. 1794, required the court to alter its holding with respect to the effect of class members’ failure to comply with § 405(g). City of New York v. Heckler, 755 F. 2d 31 (1985). The Secretary sought a writ of certiorari from this Court. We granted certiorari, 474 U. S. 815 (1985), and now affirm.
Ill
Petitioners renew here arguments rejected by the Court of Appeals. They challenge on jurisdictional grounds inclusion in the class of two groups of claimants: those who failed to bring a court action within 60 days of a final decision of the Secretary, and those who failed to exhaust administrative remedies. We first consider the requirement embodied in § 405(g) that claims must be presented in the District Court within 60 days of a final decision of the Secretary. Petitioners contend that the provision sets the bounds of the District Court’s jurisdiction. This argument is foreclosed by two of our prior decisions that have declared that the 60-day requirement is not jurisdictional, but rather constitutes a period of limitations. Eldridge, supra, at 328, n. 9; Salfi, supra, at 764.
Petitioners next contend that if the 60-day limit is a statute of limitations, it is a condition on the waiver of sovereign immunity and thus must be strictly construed. We have no difficulty agreeing with that statement. See Block v. North Dakota, 461 U. S. 273, 287 (1983). Accepting this proposition, however, does not answer the question whether equitable tolling can be applied to this statute of limitations, for in construing the statute we must be careful not to “assume the authority to narrow the waiver that Congress intended,” United States v. Kubrick, 444 U. S. 111, 118 (1979), or construe the waiver “unduly restrictively.” Block, supra, at 287. In Honda v. Clark, 386 U. S. 484 (1967), the Court held that where consistent with congressional intent, and called for by the facts of the case, it would “apply a traditional equitable tolling principle....” Id., at 501. Petitioners argue that Honda stands for the proposition that equitable tolling is permissible only in cases in which the public treasury is not directly affected. We decline to hold that the doctrine of equitable tolling is so limited. When application of the doctrine is consistent with Congress’ intent in enacting a particular statutory scheme, there is no justification for limiting the doctrine to cases that do not involve monetary relief.
We must determine, therefore, whether equitable tolling is consistent with Congress’ intent in enacting § 405(g), and whether tolling is appropriate on these facts. The statute of limitations we construe in this case is contained in a statute that Congress designed to be “unusually protective” of claimants. Heckler v. Day, 467 U. S., at 106. Moreover, Congress has authorized the Secretary to toll the 60-day limit, thus expressing its clear intention to allow tolling in some cases. While in most cases the Secretary will make the determination whether it is proper to extend the period within which review must be sought, cases may arise where the equities in favor of tolling the limitations period are “so great that deference to the agency’s judgment is inappropriate.” Eldridge, 424 U. S., at 330. As in Honda v. Clark, we conclude that application of a “traditional equitable tolling principle” to the 60-day requirement of § 405(g) is fully “consistent with the overall congressional purpose” and is “nowhere eschewed by Congress.” 386 U. S., at 501.
We conclude, moreover, that on these facts the equities in favor of tolling are compelling. As the Court of Appeals' explained:
“All of the class members who permitted their administrative or judicial remedies to expire were entitled to believe that their Government’s determination of ineligibility was the considered judgment of an agency faithfully executing the laws of the United States. Though they knew of the denial or loss of benefits, they did not and could not know that those adverse decisions had been made on the basis of a systematic procedural irregularity that rendered them subject to court challenge. Where the Government’s secretive conduct prevents plaintiffs from knowing of a violation of rights, statutes of limitations have been tolled until such time as plaintiffs had a reasonable opportunity to learn the facts concerning the cause of action. Since in this case the full extent of the Government’s clandestine policy was uncovered only in the course of this litigation, all class members may pursue this action notwithstanding the 60-day requirement.” 742 F. 2d, at 738 (citations omitted).
In addition to serving its customary purpose, the statute of limitations embodied in § 405(g) is a mechanism by which Congress was able to move cases to speedy resolution in a bureaucracy that processes millions of claims annually. Thus, the limitation serves both the interest of the claimant and the interest of the Government. Tolling, in the rare case such as this, does not undermine the purpose of the 60-day limitations period when viewed in connection with the underlying statute. Rather, it serves the purpose of the Act where, as the Court of Appeals stated, “the Government’s secretive conduct prevents plaintiffs from knowing of a violation of rights....” Ibid. See also Heckler v. Day, supra, at 106. Tolling of the 60-day limitations period was appropriate in this case, and the District Court properly included in the class claimants who had received a final decision from the Secretary, but who did not seek judicial review within the statutory 60-day time period.
IV
Petitioners also contend that the District Court erred in including in the class those members who failed to obtain a “final decision” from the Secretary as required by § 405(g). To obtain a final decision from the Secretary a claimant is required to exhaust his administrative remedies by proceeding through all three stages of the administrative appeals process. Only a claimant who proceeds through all three stages receives a final decision from the Secretary. At the outset, we note that by the time this lawsuit was filed, it was too late for a large number of class members to exhaust their claims, since expiration of the 60-day time limits for administrative appeals barred further access to the administrative appeals process. See 20 CFR §§404.905, 404.909(a)(1), 416.1405, 416.1409(a), 404.955(a), 404.968(a)(1), 416.1455(a), 416.1468(a) (1985). For these claimants, we conclude that exhaustion is excused for the same reasons requiring tolling of the statute of limitations. Since “[m]embers of the class could not attack a policy they could not be aware existed,” 578 F. Supp., at 1118; see Part III, supra, it would be unfair to penalize these claimants for not exhausting under these circumstances.
At the time the suit was filed, however, some claimants may still have had time to exhaust their administrative remedies. The question remains whether it was permissible to include these claimants in the class. Resolution of this question is aided by cases in which we have been called upon to consider issues of exhaustion under § 405(g). See Weinberger v. Salfi, 422 U. S. 749 (1975); Mathews v. Eldridge, supra; Heckler v. Ringer, 466 U. S. 602 (1984). Our decisions teach that the “final decision” requirement embodied in that section
“consists of two elements, only one of which is purely ‘jurisdictional’ in the sense that it cannot be waived by the Secretary in a particular case. The waivable element is the requirement that the administrative remedies prescribed by the Secretary be exhausted. The nonwaivable element is the requirement that a claim for benefits shall have been presented to the Secretary.” Mathews v. Eldridge, 424 U. S., at 328.
Ordinarily, the Secretary has discretion to decide when to waive the exhaustion requirement. But as we held in Eldridge, “cases may arise where a claimant’s interest in having a particular issue resolved promptly is so great that deference to the agency’s judgment is inappropriate.” 424 U. S., at 330.
Two factors influenced the Court’s judgment that Eldridge was a case in which deference to the agency’s determination of finality was not necessary. First, the constitutional challenge brought there was “entirely collateral to [a] substantive claim of entitlement.” Ibid. Second, the claim rested “on the proposition that full relief cannot be obtained at a postdeprivation hearing.” Id., at 331. The petitioner had raised “at least a colorable claim that because of his physical condition and dependency upon the disability benefits, an erroneous termination would damage him in a way not recompensable through retroactive payments.” Ibid.
The claims in this lawsuit are collateral to the claims for benefits that class members had presented administratively. The class members neither sought nor were awarded benefits in the District Court, but rather challenged the Secretary’s failure to follow the applicable regulations.
Moreover, as in Eldridge, the claimants in this case would be irreparably injured were the exhaustion requirement now enforced against them. The District Court found that class members not only were denied the benefits they were seeking, but “[t]he ordeal of having to go through the administrative appeal process may trigger a severe medical setback. Many persons have been hospitalized due to the trauma of having disability benefits cut off. Interim benefits will not adequately protect plaintiffs from this harm. Nor will ultimate success if they manage to pursue their appeals.” 578 F. Supp., at 1118. Petitioners do not challenge this finding here, and therefore, like the Court of Appeals, “[w]e have no reason to disturb Chief Judge Weinstein’s conclusion that the harm caused by wrongful denials was irreparable.” 742 F. 2d, at 736. We should be especially sensitive to this kind of harm where the Government seeks to require claimants to exhaust administrative remedies merely to enable them to receive the procedure they should have been afforded in the first place.
Finally, application of the exhaustion doctrine is “intensely practical.” Eldridge, supra, at 331, n. 11. In Salfi, we explained:
“Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review.” 422 U. S., at 765.
The ultimate decision of whether to waive exhaustion should not be made solely by mechanical application of the Eldridge factors, but should also be guided by the policies underlying the exhaustion requirement. The purposes of exhaustion would not be served by requiring these class members to exhaust administrative remedies. This case is materially distinguishable from one in which a claimant sues in district court, alleging mere deviation from the applicable regulations in his particular administrative proceeding. In the normal course, such individual errors are fully correctable upon subsequent administrative review since the claimant on appeal will alert the agency to the alleged deviation. Because of the agency’s expertise in administering its own regulations, the agency ordinarily should be given the opportunity to review application of those regulations to a particular factual context. Thus, our holding today does not suggest that exhaustion is to be excused whenever a claimant alleges an irregularity in the agency proceedings.
These claimants stand on a different footing from one arguing merely that an agency incorrectly applied its regulation. Rather, the District Court found a systemwide, unrevealed policy that was inconsistent in critically important ways with established regulations. Nor did this policy depend on the particular facts of the case before it; rather, the policy was illegal precisely because it ignored those facts. The District Court found that the policy was being adhered to by state agencies due to pressure from SSA, and that therefore exhaustion would have been futile. Under these unique circumstances, there was nothing to be gained from permitting the compilation of a detailed factual record, or from agency expertise. Cf. McKart v. United States, 395 U. S. 185, 200 (1969).
In addition, the relief afforded by the District Court is fully consistent with the policies underlying exhaustion. The court did not order that class members be paid benefits. Nor does its decision in any way interfere with the agency’s role as the ultimate determiner of eligibility under the relevant statutes and regulations. Indeed, by ordering simply that the claims be reopened at the administrative level, the District Court showed proper respect for the administrative process. It did no more than the agency would have been called upon to do had it, instead of the District Court, been alerted to the charge that an undisclosed procedure was illegal and had improperly resolved innumerable claims.
Petitioners correctly assert that, had class members exhausted administrative remedies, some might have received benefits despite the illegal policy. It also is likely that many may have been disqualified for reasons having nothing to do with the illegal policy. Such observations, however, merely serve to remind us why exhaustion is the rule in the vast majority of cases; they do not aid the Court in deciding when exhaustion should be excused. We hold that the District Court did not err in waiving exhaustion in this case either with respect to those claimants whose time to pursue further administrative appeals had lapsed, or with respect to those claimants who still had time to pursue administrative remedies.
V
Government agencies administering complex programs that bridge both state and federal bureaucracies necessarily will take certain actions pursuant to policies unknown to the public. We do not suggest that every internal policy that is found to be inconsistent with legal requirements, and arguably touches upon the outcome of a class of cases, will justify tolling the statute of limitations or excusing exhaustion. But, whatever the outer bounds of our holding today, this case falls well within them. While “hard” cases may arise, this is not one of them.
Moreover, we are aware that administrative inconvenience may result from our decision today. But the Secretary had the capability and the duty to prevent the illegal policy found to exist by the District Court. The claimants here were denied the fair and neutral procedure required by the statute and regulations, and they are now entitled to pursue that procedure. The judgment of the Court of Appeals is affirmed.
It is so ordered.
The RFC assessment is made by a review physician employed by the state agency under contract with SSA. His written conclusion becomes part of the administrative record of the claim. See, e. g., Plaintiffs’ Ex. 50, p. 10; App. 148, 158; Record Doc. No. 73; Tr. 27. The District Court found that this assessment is generally given great weight by the administrative law judge on later review. City of New York v. Heckler, 578 F. Supp. 1109, 1125 (EDNY 1984).
The Secretary has not provided for a separate reconsideration stage in disability cessation cases under Title XVI. An SSI recipient whose benefits are terminated, therefore, is entitled to proceed directly to an ALJ hearing if he requests one within 60 days of the initial determination. 20 CFR §§416.1407, 416.1415 (1985).
Title 42 U. S. C. § 405(g), provides in part:
“Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Columbia. As part of his answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive...
The District Court noted that in 1983 SSA “yielded to pressure to allow medical vocational allowances for those with mental disabilities. The change was precipitated only after the filing of this lawsuit and after a preliminary injunction was issued on December 22, 1982, in the case of Mental Health Association of Minnesota v. Schweiker, 554 F. Supp. 157 (D. Minn. 1982), aff’d, 720 F. 2d 965 (8th Cir. 1983).” 578 F. Supp., at 1115.
The District Court added:
“On the contrary, SSA relied on bureaucratic instructions rather than individual assessments and overruled the medical opinions of its own consulting physicians that many of those whose claims they were instructed to deny could not, in fact, work. Physicians were pressured to reach ‘conclusions’ contrary to their own professional beliefs in cases where they felt, at the very least, that additional evidence needed to be gathered in the form of a realistic work assessment. The resulting supremacy of bureaucracy over professional medical judgments and the flaunting of published, objective standards is contrary to the spirit and letter of the Social Security Act.
“The Secretary’s practices have violated the requirements of her own regulations. Defendants have ignored the five step sequential evaluation process by presuming that the failure to meet listings at step three or four of the process automatically translates into a residual functional capacity to do unskilled work at steps four and five. The bureaucratic assessment of residual functional capacity if it was done at all was reduced to a paper charade where the SSA physician completed a cursory report or checked off a form knowing the conclusion had to be that the claimant had the capacity for unskilled work. Medical experts
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_genapel2
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
KAPLAN et al. v. SWARTZ. SWARTZ v. KAPLAN et al.
Circuit Court of Appeals, First Circuit.
December 27, 1927.
Nos. 2117, 2131.
Contracts <§=»229(2) — Plaintiff held entitled to agreed percentage of actual profit made on sale of realty, though profit was substantially larger than anticipated.
Plaintiff contracted to sell a building to defendants for $12,830, above the mortgages thereon. Later he received an offer of $25,000, above the mortgages. He told defendants of the offer, and on their agreement to pay him 40 per cent, of the profit realized if they made a sale to him, named the party. Defendants made the sale but at a substantially larger profit. Held that plaintiff’s recovery was not limited to 40 per cent, of the difference between $12,830 and $25,000, but that he was entitled to 40 per cent, of the profit actually made.
In Error to the District Court o£ the United States for the District of Massachusetts; Elisha H. Brewster, Judge.
Action by Fred M. Swartz against Samuel Kaplan and others. To review the judgment, both parties bring error.
Judgment vacated, verdict set aside, and eause remanded for new trial.
Francis M. Carroll, of Boston, Mass. (John T. Storrs, of Ware, Mass., on the brief), for Samuel Kaplan and others.
Elisha Greenhood, of Boston, Mass., for Fred M. Swartz.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
BINGHAM, Circuit Judge.
This is an action of contract brought by the plaintiff, a citizen of Rhode Island, against the defendants, citizens of Massachusetts, to recover a share of profits arising out of the sale of certain real estate in Gardner, Mass., known as the “Theater and Hotel Block.” The first two counts are for a broker’s commission. The third count, which is the only one involved here (the jury having been directed that the plaintiff could not recover on either of the first two counts), is on a contract said to have been made June 13, 1924, whereby the defendants are alleged to have agreed to pay the plaintiff 40 per cent, of the profits, which would accrue to them from a sale of the property to a certain person or concern or to any person acting for such person or concern, in consideration of the plaintiff’s disclosure of the name of the person and concern and the introduction of the defendants to such person, to enable the defendants to deal with the person or concern as a buyer of the property. The answer was a general denial. At the close of its charge to the jury, the court submitted the following questions :
“(1) Did the defendants enter into any contract with the plaintiff whereby they agreed to pay a percentage of the profits derived from the sale to Ripley or to the Giles Company of the Gardner real estate involved in this suit?
“(2) If you answer ‘Yes’ to the first question, which of the following contracts did the defendants enter into:
“A. A contract to pay 40 per cent, of the profits derived from a sale at $25,000 above mortgages? or—
“B. A contract to pay 40 per cent, of all profits derived from any sale which the defendants might thereafter make to Ripley or Giles Company?
■ “(3) What were plaintiff’s damages resulting from a breach of the contract designated by the letter ‘B’?”
After the jury had had the matter under consideration for six hours, they came into court and reported that their answer to the first question was “Yes,” but that they had so far been unable to agree upon the other questions. The court thereupon instructed the jury that “the contract established by the plaintiff’s evidence only obligated the defendants to pay 40 per cent, of $12,170, the difference between the price which the defendants were to pay for the property and the price which Ripley had agreed to pay under his written agreement with the plaintiff, and this 40 per cent, with interest from the date of writ to-day amounts to $5,161.30. You may, therefore, in view of your disposition of the first question, return a verdict for the plaintiff for the sum of $5,161.30.” To this ruling and direction of a verdict, both the plaintiff and defendants excepted. A judgment having been entered on the verdict, the plaintiff and the defendants prosecuted these cross-writs of error.
The defendants in their assignments of error complain that the court erred in denying their requests for rulings, but, as each one of them relates in whole or in part to the first two counts, upon which the plaintiff was not permitted to go to the jury, they were properly denied.
The questions presented by the remaining assignments of both plaintiff and defendants, except as to the admission of a piece of evidence, are whether the court erred: (1) in directing the jury to return a verdict for the plaintiff for $5,161.30, that being 40 per cent, of the difference between the price the defendants had agreed to pay the plaintiff for the property and the price which Ripley had agreed to pay him for it, pins interest from the date of the writ; and (2) whether there was any substantial evidence' from which the jury could find, if there was an agreement to share the profits, that the agreement jvas for 40 per cent, of the difference between the price which defendants were to pay for the property and the price which Ripley had agreed with the plaintiff to pay him under his written agreement.
The only evidence being .upon the question, as to whether there was an agreement between the plaintiff and the defendants to share the profits to be derived from a sale of the property, and, if so, what its terms were, was given by the plaintiff and his witnesses. The defendants denied the making of any contract. The evidence was that on March 6, 1924, the plaintiff made a written agreement with the defendants to sell them the property (subject to an unexpired lease of a part of the property to the Giles Company, of which Ripley was general manager) for $12,830 over existing mortgages then on the property, papers to pass May 1; that later in March, Ripley, ignorant of the March tith agreement, called on the plaintiff to obtain an extension of the lease for his company; that the plaintiff informed Ripley of his agreement with the defendants, but that there was a question whether they were going through with it; that, as a result, the plaintiff, on April 1, 1924, entered into a written contract with Ripley (he acting for the Giles Company) to sell the property for $25,000 over the mortgages, conditional on the defendants’ delivering an i instrument showing that they had no claim upon the property on account of their agreement with the plaintiff; that, ■ because of attachments put upon the property in April, the transfer of the property to the defendants was delayed until July 1; that at, an interview between the plaintiff and the defendants on June 13, before the transfer on July 1 was had, negotiations tobk place, which are the subject to this controversy; that at that time the plaintiff opened the interview by saying that he knew a man working for a large concern, who was interested in buying the property, that he could get for the defendants a handsome profit, that the man was willing to pay $25,000 above the mortgages; that, after discussing the percentage of profit the plaintiff should receive out of the transaction and agreeing that it should be 40 per cent., the plaintiff said, “before I tell you the name of the man * * * I want it understood that I am to get 40 per cent, of the profits whenever you will sell to either the firm or the man”; that, this being understood, he disclosed the name of Ripley, representing the Giles Company; that he told them that Ripley had come to him on a lease proposition; that he said he had sold the building to the defendants and that he (Ripley) should talk with them; that he also said he had told Ripley he did not think the defendants would go through with the deal, and he thought he could turn the deal his (Ripley’s) way if they gave him an offer; that the defendants said, “Yes; that is a good proposition, we will sell.” ■ The plaintiff also testified that he “did not disclose the name of Ripley or the Giles Company until after the defendants agreed to pay * * * [him'] 40 per cent, of the profits of any sale made to one or the other” of the parties he had mentioned; that, in thie defendant’s presence, he called Ripley over the phone about meeting the defendants and doing business directly with them; that a time and place of meeting was agreed upon for the following Monday; that at the time and place agreed upon the parties met, and he introduced the defendants to Ripley; -that no agreement was made with Ripley on that day; that between July and September 18th negotiations were carried on between the defendants, Ripley, and the Giles Company, resulting in a written sale agreement, pursuant to which on October 1 the defendants deeded the property to the Giles Company for $240,000, and a 20-year lease to the defendants, at $300 a month, of two stores on .the property. , <.
It was undisputed that the defendants had paid $9,214.88 in remodelling the two stores, and that the profit on the sale (not taking into account the value of the 20-year lease) was $55,000 .less the above expenditures, or $45,785.12.
In view of this evidence, and other evidence of the same nature in its support, we think the court erred in directing a verdict for the plaintiff for 40 per cent, of the $12,-170. And, while it is unnecessary to a decision of this- ease, it seems to us that there was no evidence submitted from which a jury would be warranted in finding that the profits out of which the plaintiff was to receive his percentage was the difference between what he was to receive from the defendants and what Ripley had agreed previously to pay him for the property; that the agreement, if there was any, was to pay the plaintiff a percentage of the profits derived from a sale by the defendants to Ripley or the Giles Company, whatever that might be over and above the price the defendants paid the plaintiff for the property.
In this situation it is unnecessary to pass on the question of evidence; it may not arise at another trial.
The judgment of the District Court is vacated, the verdict is set aside, and the case is remanded to that court for a new trial, with costs to Swartz.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_usc1sect
|
158
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. BANGOR SHOE MFG. CO., Inc, Respondent.
No. 5994.
United States Court of Appeals First Circuit.
Oct. 23, 1962.
Warren M. Davison, Washington, D. C, Atty, with whom Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Assoc. General Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Allison W. Brown, Jr, Washington, D. C, Atty, were on brief, for petitioner.
Samuel Leiter, Boston, Mass., with whom Benjamin E. Gordon, Boston, Mass., was on brief, for respondent.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
PER CURIAM.
Essentially questions of the credibility of witnesses are presented by this petition for enforcement of an order of the National Labor Relations Board adopting findings and conclusions of a trial examiner that the respondent had violated § 8(a) (1) and (3) of the Labor Management Relations Act, 1947, by coercive interrogation and discriminatory discharges of employees. It is true, as the trial examiner noted in his intermediate report, that in this case there is more than the usual contradiction of witnesses for one side by witnesses for the other, that witnesses on the same side sometimes contradicted one another and on occasion even themselves, and also perhaps, to quote the trial examiner: “ * * * more than one witness on one side or the other deliberately gave false testimony.”
But questions of the credibility of witnesses are for the Board, subject to judicial review only when it oversteps the bounds of reason. That is to say, we can set aside the Board’s findings of credibility only when it is evident that it has fallen into a clear mistake. We do not find that situation here.
Giving the trial examiner’s findings the “ * * * weight [that] in reason and in the light of judicial experience they deserve,” Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 496 (1951), 71 S.Ct. 456, 469, 95 L.Ed. 456, and respecting the Board’s experience and skill, we cannot say that clear error appears in its resolution of questions of credibility. On the contrary, it seems to us that the Board and the trial examiner steered an entirely rational course through unusually confused and conflicting testimony. Substantial evidence in the record considered as a whole supports the Board’s findings and conclusions.
We also agree with the Board’s rejection of the respondent’s contention that the trial examiner was guilty of bias and prejudice.
A decree will be entered enforcing the order of the Board.
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 29? Answer with a number.
Answer:
|
songer_appel1_1_3
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed 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.
THE SOCONY NO. 19.
Circuit Court of Appeals, Second Circuit.
March 5, 1928.
No. 181.
1. Collision <§=106 — Case of vessel maneuvering to. leave slip is one of “special circumstances.”
The case of a vessel maneuvering to leave her slip is one of “special circumstances,” and ordinary steering and sailing rules and signals, made for vessels navigating on definite courses, do not apply.
[Ed. Note. — For other definitions, see Words and Phrases, Second Series, Special Circumstances.]
2. Collision <§=95(4) — Small launch held at fault for collision with barge being maneuvered out of slip by tug, where it did nothing to get out of way.
Small motor launch held at fault in collision with barge, which tug was maneuvering out of slip, where launch, though having tug and barge in plain view for five minutes, did nothing to keep out of the way of their maneuvering.
Appeal from the District Court of ■ the United States for the Eastern District of New York.
Libel by the General Ship. Scaling Corporation against the steam tug Socony No. 19, her engines, boilers, etc., wherein the Standard Transportation Company is claimant. From an interlocutory decree holding the steam tug solely at fault for collision between barge, which tug had in tow, and libelant’s motor launch, claimant appeals.
Reversed and remanded, with directions.
Macklin, Brown, Lenahan & Speer, of New York City (Horace L. Cheyney, Richard F. Lenahan, and Pierre M. Brown, all of New York City, of counsel), for appellant.
Bigham, Englar & Jones, of New York City (Charles W. Hagen, of New York City, of counsel), for appellee.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The libelant’s vessel, Helene No. 2, was a motor launch, 57 feet in length, carrying heavy machinery and equipment, used for scaling vessels and for eleetrie welding/ She had a 32 horsepower gasoline motor, and 'her crew consisted of an operator and a man to handle the engines. Two other vessels concerned were the Socony No. 122, a loaded barge carrying fuel oil to ships, which was 250 feet long, and in tow of the Socony No. 19, a steam tug about 89 feet in length. The barge was on the south side of Pier 5, Bush Terminal, bow in. The tug went alongside No. 122 on her extreme stem quarter, and made fast to her with a strap, head line, and stem line. A deckhand was stationed as a lookout on the stern of the barge. Thereupon the tug blew the usual long slip whistle and proceeded to back the No. 122 out into the stream. When the barge had cleared the slip, the tug began to swing her around in order to get her on her course, which was to be up the river to Pier 35, Brooklyn. Meanwhile the Helene No. 2 was coming across the bay to Pier 5, Bush Docks, saw the Socony No. 19 when something less than a half mile away, and when she got within 600 or 700 feet of the pier gave a stop bell, because the Socony No. 19 was backing her barge out of the slip.
When the tug, by backing her engines, had pivoted the barge, so that the latter was heading in a southerly direction, the Helene No. 2 assumed that she was going down the bay toward Staten Island, instead of up to Pier 35. As the Socony No. 19 swung her barge farther around, the Helene No. 2, who was then about 500 feet from the pier head, did not get out of' her way, and as a result was struck a swinging blow on her starboard bow by the overhang of the bow of the barge. •
The master of the Socony No. 19 testified that, when the Helene No. 2 was 250 or 300 feet away from him, he saw her start her engines ahead, and that he then stopped his tug’s backward motion and put his wheel hard astarboard to shove his bow to the southward, away from the Helene No. 2. The master of the latter said she did not start up, but lay five minutes outside the pier, waiting for the Socony and her barge to proceed, and that when he saw the tug swinging her barge around, instead of proceeding south, as he had expected, he reversed his engine, but too late to avoid collision. He also said that the Socony pulled her barge out of the slip, got her in a position lying north and south and lengthwise of the ends of the piers, then let go her lines, made fast on the stem quarter of the barge, and started to pivot her around.
The trial judge held that the collision was occasioned through the fault of the Socony No. 19 in failing to signal the Helene No 2 that the former was about to make a,, complete turn and go up the bay, and that there was no fault on the part of the Helene No. 2. He also seems to have found that the Socony made fast to the starboard quarter of her barge after she had got her out into the stream, in u position parallel to the pier ends; that the Helene No. 2 had come to a full stop before this, and did not come forward on her engines thereafter. It seems doubtful whether the Helene No. 2 did not come forward, for the Socony swung her barge around while backing her engines, and it is hard to see, when this was being done, how the barge could have extended out far enough to strike the Helene No. 2, if the latter had remained 500 feet outside of the pier ends.
But, assuming that the finding of the trial court was correct, we still have a ease where the tug Socony was taking a heavy barge out of her pier to get her on a course. The small motor launch, Helene No. 2, according to the account of her master, instead of keeping out of the way of the barge, came within 500 feet of the pier heads, and then, though having the tug and barge in plain view for five minutes, did nothing to keep out of the way of their legitimate maneuvers, but practically lay still until she was struck.
It is perfectly settled that the ease of a vessel maneuvering to leave her slip is one of special circumstances. The Servia, 149 U. S. 144, 13 S. Ct. 877, 37 L. Ed. 681; The John Rugge (C. C. A.) 234 F. 861; The Washington (C. C. A.) 241 F. 952. Therefore ordinary steering and sailing rules and signals made for vessels navigating on definite courses do not apply. The Socony was executing a somewhat awkward maneuver, without taking any unnecessary room. She had blown her slip whistle; the Helene No. 2 plainly saw her, and was bound to keep out of her way while she was attempting to leave her slip and get on her course. Of course, the Socony could not be excused if she.recklessly ran into the barge; but she had a right to assume that a small launch, like the Helene No. 2, would get out of her way when there was plenty of time and space within which to do this, if the Helene No. 2 had begun to move in season.
It is evident that, when a tug made fast to the stem quarter of a barge is swinging the barge, the leverage is all against the tug. It is a slow matter either to start or to stop her swing. This is an ample reason why the tug could not avert the collision with the Helene No. 2. She was justified in supposing the latter would make a seasonable effort to get out of the way, and with every natural force against her she did what she could to break the swing of the barge when the Helene No. 2 had taken no measures to get out of the way until too late.
The fault relied on by the libelant to justify holding the Socony is that the latter attempted an unusual maneuver without giving some warning to the Helene No. 2. It is argued that the maneuver was unexpected, because the -Socony and her barge for a moment lay north and south, and were, therefore, apparently about to proceed down the bay. But when a tug has got her tow outside a slip, and has not yet started anywhere, there can be no justification in making assumptions as to her destination. She is still essentially maneuvering to get on her course. The unwarranted suppositions of the master of the Helene No. 2 can serve as no basis for requiring a signal by the Socony, nor is any signal appropriate to such a situation found in the admiralty rules, sanctioned by maritime practice, or pleaded as a fault in the libel.
The interlocutory decree is reversed, and the cause is remanded, with directions to dismiss the libel, with costs.
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_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
UNITED STATES of America, Plaintiff-Appellee, v. Aubrey Clark BAKER, Defendant-Appellant.
No. 18513.
United States Court of Appeals Sixth Circuit.
Nov. 13, 1969.
H. Fred Hoefle, (Court-appointed) Norwood, Ohio, for appellant.
Martha Craig Daughtrey, Asst. U. S. Atty., Nashville, Tenn., for appellee; Charles H. Anderson, U. S. Atty., Nashville, Tenn., on the brief.
Before EDWARDS and PECK, Circuit Judges, and BROOKS, District Judge.
Honorable Henry L. Brooks, Chief Judge, United States District Court for the West-era District of Kentucky, sitting by designation.
PER CURIAM.
The defendant-appellant was charged in an eleven-count indictment of various Dyer Act violations. Two of the counts were dismissed on motion of the government and he came on for trial and was found guilty by jury verdict of the violations charged in the remaining nine counts. This appeal was perfected from the judgment of conviction.
The defendant-appellant’s first contention in this court is that the trial judge committed prejudicial error in permitting the United States attorney, over objection, to hand a copy of the indictment to each of the jurors at the commencement of trial, and in permitting such copies to remain in their possession throughout the three days consumed by the trial. The government responds that the availability of the copies of the indictment facilitated understanding by the jurors of the complicated factual pattern, which involved the interstate transportation of eight automobiles on varying dates and from varying points of origin and termination, and that prejudice could not have resulted because the fact that an indictment is not evidence was stated in the Court’s general charge to the jury. We conclude that it was an abuse of discretion for the trial court to permit these photostatic copies of a document possessing all of the
indicia of a formal United States government document, including the reproduction of the signature of the foreman of a federal Grand Jury, to be handed to the jury without a proper explanation of the document and of the purpose of its delivery to the jurors having been contemporaneously made. However, an examination of the transcript of trial convinces us that in view of the overwhelming weight of the evidence of guilt presented it is clear beyond a reasonable doubt that neither a refusal to permit the jurors unlimited access to these copies of the indictment nor the offering of a proper contemporaneous instruction would have altered the verdict. While we do not suggest that the error rises to the level of a deprivation of constitutional rights, see Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); United States v. Levinson, 405 F.2d 971 (6th Cir. 1968).
It is the further contention of the defendant-appellant that the trial judge did not adequately describe the nature and function of an indictment in his general instructions, arguing that they should have contained advice of the fact that the purpose of an indictment is only to cause the person named therein to be brought to trial and to advise him of the nature of the charge or charges against him. However desirable (and customary) instructions of this type may be, there is no requirement that absent a request by counsel they be included. Rule 30 of the Federal Rules of Criminal Procedure precludes a claim of error in connection with a charge to the jury unless the “defendant requested an instruction which was refused (or) made any objection to, or suggested any change in or amplification of, the charge as given.” United States v. Ramsey, 291 F.2d 737 (6th Cir.), cert, denied, 368 U.S. 899, 82 S.Ct. 177, 7 L.Ed.2d 94 (1961). No objection was made to the portion of the charge here in question nor was a request for an amplification made. Such deficiency as may be found in the abbreviated statement in indictment is here concluded not to the general charge on the subject of the equate “plain error.” Singer v. United States, 380 U.S. 24, 38, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965).
Defendant-appellant next-urges that in interrogating witnesses the District Judge “cast aside the cloak of judicial impartiality in a manner prejudicial to appellant’s right to a fair trial.” We have examined with particular care the portions of the record reflecting the Court’s interrogation of witnesses and find this contention to be without merit. On the contrary, it is apparent that such questions as were asked by the trial judge were proposed only for the purpose of placing the facts before the jury, and that they did in fact achieve that purpose. See Quercia v. United States, 289 U.S. 466, 469, 53 S.Ct. 698, 77 L.Ed. 1321 (1933). Finally, it is argued that the admission of testimony concerning an alleged insurance fraud involving the defendant was error. The evidence complained of tended to show motive and intent on the part of the defendant-appellant and was not rendered inadmissible merely because it necessarily constituted evidence of an offense not charged. See 2 Wigmore, Evidence §§ 300-371 (3d ed. 1940); Banning v. United States, 130 F.2d 330 (6th Cir.), cert, denied, 317 U.S. 695, 63 S.Ct. 434, 87 L.Ed. 556 (1942).
Affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_origin
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
LOCAL 127, UNITED SHOE WORKERS OF AMERICA, AFL-CIO, v. BROOKS SHOE MANUFACTURING COMPANY, Brooks Shoe Manufacturing Company, Inc., and Michael Goldenberg, Appellants.
No. 13421.
United States Court of Appeals Third Circuit.
Reargued Nov. 14,1961.
Decided Jan. 2, 1962.
Rehearing Denied Jan. 29, 1962.
See also 191 P.Supp. 288.
Kenneth Souser, Philadelphia, Pa. (Robert H. Kleeb, Robert K. Greenfield, Morgan, Lewis & Bockius, Folz, Bard, Kamsler, Goodis & Greenfield, Philadelphia, Pa., on the brief), for appellants.
John Silard, Washington, D. C. (Joseph L. Rauh, Jr., Washington, D. C., on the brief), for appellee.
Before BIGGS, Chief Judge, and GOODRICH, McLAUGHLIN, KALODNER, STALEY, HASTIE, GANEY and SMITH, Circuit Judges.
PER CURIAM.
All members of this court are of the opinion that defendants breached the collective bargaining agreement.
The court is evenly divided on the district court’s award of compensatory damages: Chief Judge Biggs and Judges McLaughlin, Staley, and Ganey are of the opinion that it is correct; Judges Goodrich, Kalodner, Hastie, and Smith are' of the opinion that compensatory damages were properly awarded for the period before but not after the expiration date of the collective bargaining agreement.
A majority of the court, Chief Judge Biggs and Judges Goodrich, Kalodner, Hastie, and Smith, are of the opinion that the district court erred in awarding punitive damages, while Judges McLaughlin, Staley, and Ganey think that the award should be affirmed.
Therefore, that portion of the district court’s judgment awarding punitive damages will be reversed and that portion awarding compensatory damages will be affirmed.
STALEY, Circuit Judge.
This is a case of first impression in which a federal court was called on to fashion a remedy in a suit brought under § 301(a) of the Labor Management Relations Act, 1947, 29 U.S.C.A. § 185(a) (“Act”), by Local 127, United Shoe Workers of America, AFL-CIO (“union”), against the Brooks Shoe Manufacturing Company (“company”), Brooks Shoe Manufacturing Company, Inc., and Michael Goldenberg, defendants, for the alleged breach of a contracting out provision and a guarantee against a runaway shop in a collective bargaining agreement.
Members of the Goldenberg family founded the company and at all times relevant controlled Carmen Shoe Manufacturing Company (“Carmen”). The company operated a shoe manufacturing plant in Philadelphia, Pennsylvania, as did Carmen in Hanover, Pennsylvania. The union had organized the company’s Philadelphia plant in 1937, and thereafter entered into a series of collective bargaining agreements with it. This litigation arose out of the fact that, although the company had agreed to a renewal of the agreement to December 1, 1957, it ceased all operations at the Philadelphia plant on April 30, 1957, causing certain of its employees, who were members of the union, to be discharged.
In separate proceedings, the district court on May 2,1960, found that the company breached the agreement, as alleged by the union, 183 F.Supp. 568 (E.D.Pa. 1960), and on September 22,1960, awarded $28,011 compensatory and $50,000 punitive damages. 187 F.Supp. 509. The company contends that the evidence completely fails to establish any breach of the agreement.
Carmen manufactured a “lower grade” shoe, while the company, due to the availability and use of better grade leather and more highly skilled labor, manufactured the “better grade” shoes contemplated by paragraph 14 of the agreement, which provided:
“ * * * [N] o contract work shall be given out and no contract work shall be performed in the shop or factory on shoes known as better grade work. It is understood that by ‘contract work’ is meant shoes made partially within the plant and completed on the outside, or shoes made partially on the outside and completed within the plant. It is agreed that the firm will continue to make the better grade shoes in their present plant [the Philadelphia plant].” (Emphasis supplied.)
The method of making shoes at both plants was similar. Cutters would place patterns on leather and cut out various parts of a shoe that fitters stitched together, while as a final step, shoemakers completed the shoe. Beginning sometime after April, 1954, and particularly in 1955 and 1956, cuttings and fittings from Hanover were brought to Philadelphia for assembly, while the amount of cutting and fitting taking place in Philadelphia was gradually reduced until March, 1956, when these operations were completely terminated there, causing cutters and fitters to be discharged. The district court, and we believe correctly so, construed paragraph 14 as extending to the entire manufacturing process, and found, with adequate support in the record, that a breach occurred.
Paragraph 14 clearly requires that all work incidental to producing a “better grade” shoe, regardless of why it is so, be confined to the Philadelphia plant. The last sentence expressly provides that the company will make all “better grade” shoes in Philadelphia. Certainly such important operations as cutting and fitting come within the ambit of paragraph 14. The record establishes beyond doubt that the shoe finally assembled was a “better grade” shoe. Defendant Michael Goldenberg testified that these shoes were of a “better grade” that resulted, as he said, from the “better grade work” in Philadelphia.
The company argues that the union, by negotiating two renewals of the contract after the conduct constituting a breach first occurred, waived the breach of paragraph 14. But the evidence in the record at most shows that the union, at the time of renegotiation, knew that cutters and fitters were being furloughed in Philadelphia and not that work was being brought there from Hanover. It cannot be said that this limited information was enough to give the union contemporaneous information, a prerequisite that must be met before a waiver is effective.
The runaway shop guarantee is contained in paragraph 21 of the agreement and reads:
“It is agreed by the Employer that the shop or factory shall not be removed from the County of Philadelphia during the life of this agreement.”
Defendants contend that paragraph 21 should be construed to mean that only the manufacturing of “better grade” shoes could not be removed from the Philadelphia plant, and therefore that it was not guilty of a breach since all the shoes manufactured at Hanover were of a lower grade. We cannot agree. Such an interpretation would go against the plain and clear language and would make the job security that the union had hoped to obtain for its members a fiction. The paragraph provides that “the shop or factory” shall not be removed, contemplating thereby the general productive capacity, rather than the capacity to produce a particular grade of shoe. It was the over-all operation at the Philadelphia plant, and the jobs involved, that were of primary interest to the union and its members. Continuity of employment, as such, was the matter of first importance, with the opportunity to work on better grade shoes a matter of individual and secondary importance. The union could continue in existence and maintain its membership regardless of the quality of shoes that its members produced.
The record fully supports the district court’s finding that the company violated paragraph 21. It shows the existence of a systematic plan, called a “scheme” by the district court, to remove the productive capacity of the Philadelphia plant to Hanover. We begin with a written partnership agreement, secretly entered into in 1954, between John and Michael Goldenberg following unsuccessful efforts to unionize Carmen, which provided:
“As soon as possible after May 1, 1954, Brooks shall restrict its manufacturing activities, but shall continue the ownership of the capital stock of Carmen.”
Between 1954 and 1956, the work force in Philadelphia was reduced from 43 to 15 employees, while Carmen’s work force increased from 135 to 181.- Annual gross sales also reflected the transfer of work. From a high of $863,000 in 1954, the beginning of the runaway period, the company’s gross sales decreased to $238,000 in 1956. Correspondingly, Carmen’s sales increased from $767,000 to $1,112,-000 in 1956. Finally, in 1957, the name Carmen Shoe Manufacturing Company was changed to Brooks Shoe Manufacturing Company, Inc. Motivation for removal unquestionably existed, for the wages in Hanover were fifteen to twenty per cent lower than the union wage scale that prevailed in Philadelphia.
We now consider the remedy fashioned by the district court. As to the award of compensatory damages, the company contends that the district court committed error in making union dues an element of damages and in awarding such damages not only until the date the agreement was to expire, i. e., December 1, 1957, but also for the foreseeable duration of the company’s relationship with union which it found to be twenty years. The union contends, in reply, that the district court’s findings of fact fully support the award, and that the defendants have failed to distinguish between the duration and existence of contract rights and the rule for the measurement of contract damages. The punitive damages award has taken the brunt of the attack. The defendants assert that such damages are generally reserved to tort actions and are improper in a contract action under § 301(a), and that even if permissible, an award here, under the circumstances, constituted an abuse of discretion. The union, relying on Brown v. Coates, 102 U.S.App.D.C. 300, 253 F.2d 36, 67 A.L.R.2d 943 (1958), asserts that not only can punitive damages be awarded under § 301(a), but that such an award is proper where the breach is tortious, willful or flagrant, and the award would further what they allege is our national labor policy. In its original complaint the union requested, inter alia, that the defendants be enjoined from operating outside Philadelphia and that they be required to return to Philadelphia all the assets, machinery, and manufacturing facilities of the company. The district court refused to order the company to return to Philadelphia because of the economic hardship that this would entail and found that it would be impractical to have the defendants offer the Philadelphia employees employment at Hanover.
The bounds within which a federal court can travel in fashioning a remedy in an action under § 301(a) are far apart but well marked since the Supreme Court’s decision in Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 456-457, 77 S.Ct. 912, 918, 1 L.Ed.2d 972 (1957), where it was said:
“The question then is, what is the substantive law to be applied in suits under § 301 (a) ? We conclude that the substantive law to apply in suits under § 301(a) is federal law, which the courts must fashion from the policy of our national labor laws. * * * The Labor Management Relations Act expressly furnishes some substantive law. It points out what the parties may or may not do in certain situations. Other problems will lie in the penumbra of express statutory mandates. Some will lack express statutory sanction but will be solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy. The range of judicial inventiveness will be determined by the nature of the problem. * * * Federal interpretation of the federal law will govern, not state law. * * * But state law, if compatible with the purpose of § SOI, may be resorted to in order to find the rule that will best effectuate the federal policy. * * * Any state law applied, however, will be absorbed as federal law and will not be an independent source of private rights.” (Citations omitted; emphasis supplied.)
We think that the remedy fashioned by the district court here is rooted in and supported by fundamental principles of law, and is in furtherance of and in harmony with our national labor policy.
The defendants are precluded from asserting that union dues are not a proper element of damages. In a pretrial memorandum on scope of relief, defendants said: “In accordance with these principles, the union is limited to recovery of the dues lost by virtue of the alleged breach of the contract. In total, these must be limited to the period during which the contract still had to run, to wit, until December 31, 1957.” This, we think, constituted an acceptance by defendants of union dues as an element of damages. Consistent therewith, the defendants did not thereafter raise that question at any stage of the proceedings. The testimony of the union’s financial secretary on the amount of union dues collected from employees at the Philadelphia plant, which formed the basis for the compensatory award, went unchallenged. In any event, our decision in Burlesque Artists Ass’n v. I. Hirst Enterprises, Inc., 267 F.2d 414 (C.A. 3, 1959), supports reliance on union dues as an element of damages. There plaintiffs, a group of employees constituting the Burlesque Artists Association, sued for breach of a contract wherein defendant, a theatre owner, had agreed that every person appearing in certain theatres would be required to join the association. This court upheld a jury award of damages based on the testimony of an expert witness who estimated the amount of union dues that the association would have received had all of defendant’s employees joined the association as the contract required.
A defendant in a breach of contract action is liable for all damage resulting from the breach that could have been fairly and reasonably contemplated by the parties to the contract at the time of its execution. Hadley v. Baxendale, 9 Exc. 339 (1854). That rule has been followed in the federal courts, Bercut v. Park, Benziger & Co., 150 F.2d 731 (C.A.9, 1945); Wilson & Co. v. United Packinghouse Workers, 181 F.Supp. 809 (N.D.Iowa, 1960); Oliver-Electrical Mfg. Co. v. I. O. Teigen Construction Co., 177 F.Supp. 572 (D.Minn.1959); W. L. Mead, Inc. v. International Brotherhood of Teamsters, etc., Local Union No. 25, 129 F.Supp. 313 (D.Mass.1955), affirmed 230 F.2d 576 (C.A.1, 1956); Ring v. The Dimitrios Chandris, 43 F.Supp. 829 (E.D.Pa.1942), affirmed 133 F.2d 124 (C.A.3, 1943); those of Pennsylvania, F. P. Weaver Coal Co. v. Maryland Casualty Co., 295 Pa. 486, 145 A. 595 (1929); Siegel v. Struble Bros., Inc., 150 Pa.Super. 343, 28 A.2d 352 (1942); Stevenson v. Smith, 82 Pa.Super. 539 (1924), and is generally accepted in other jurisdictions. Restatement, Contracts § 330 (1932); 6 Williston, Contracts, §§ 1344, 1347 (rev. ed. 1937).
This ease comes squarely within that rule. It was clearly foreseeable at the time the collective bargaining agreement was entered into that if the company terminated its operations at the Philadelphia plant, the union would lose its dues-paying members. Because of the mobile nature of the shoe industry, where the ratio of labor to capital is high, the union was vulnerable to destruction by a relocation. Paragraph 21 was inserted in the instant, and in fact all of the agreements executed between the company and union, in order to protect it against just such a contingency.
The district court’s finding that the company-union relationship would have continued for an additional twenty years is not clearly erroneous and is fully supported by the record. The company had been a Goldenberg-family-controlled operation for approximately forty years, and the union, since 1937, represented its employees in Philadelphia and negotiated agreements in their behalf. Michael Goldenberg, the present owner of Brooks Shoe Manufacturing Company, Inc., has shown a persistent interest in its continuation, and certainly there is no present prospect of liquidation. The manufacturing operation at Hanover increased substantially during relevant times, and shows every sign of remaining vigorous. There is no basis in the record for concluding that repeated contracts would not have been successfully negotiated between the company and the union, and it has never been suggested that the union did not represent a majority of the employees, nor has an election ever been sought for selection of a new bargaining representative.
Whether defendants are entitled to a reduction in damages to present worth or credit for certain savings allegedly accruing to the union because it need not any longer provide services to its members, or for the alleged failure of the district court to allow defendants certain other credits, are questions we need not reach since they were neither raised nor disposed of below. These contentions involve a resolution of factual issues which we cannot and should not reach here. Compare McNello v. John B. Kelly, Inc., 283 F.2d 96 (C.A.3, 1960), where the error in the district court was termed “fundamental” by us. In International Telephone and Telegraph Corp. v. Local 400, 286 F.2d 329, n. 9 (C.A.3, 1960), there were no factual issues to resolve, and the court was determining its jurisdiction.
As a general rule, punitive damages are not recoverable in an action for breach of contract. One of the exceptions to this rule is well recognized in many jurisdictions. This exception is particularly pertinent here. It is in those cases where a defendant’s conduct constitutes a breach of contract and disregard ■of a duty imposed by law independently of contract.
The achievement of industrial stability has for many years been of major concern to the Congress of the United States. It has expressly declared that our national labor policy favors unionization ■and the execution and observance of collective bargaining agreements between ■employers and employees as a means of realizing that end. 29 U.S.C.A. § 151. •Congress demonstrated the importance of faithful performance of those agreements when it enacted § 301(a). The Act’s legislative history also shows the persistent concern of officials in both the executive and legislative branches of government for the availability of effective remedies to an aggrieved party when a breach occurs. S. Report No. 105, 80 th •Cong., 1st Sess., 1947; 92 Cong.Rec. pp. 4265, 4410, 80th Cong., 1st Sess., 1947. That history goes on to indicate, S. Report No. 105, supra, p. 30, that § 301(a) is to be read in conjunction with § 8 of the Act, 29 U.S.C. § 158, where it is provided that,
“(a) It shall be an unfair labor practice for an employer—
*■»**•»*
“(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization * *
As we indicated earlier, the company’s breach of the runaway shop provision of the contract had its genesis in the secret, written agreement, executed between John and Michael Goldenberg in 1954. This called for termination of operations at the Philadelphia plant at the earliest possible date. In the ensuing years, the company systematically and deviously carried out its plan of removal. At the same time, it renewed on several occasions, between 1954 and 1957, its agreement with the union. Such conduct on the part of defendants is not only a willful breach of its collective bargaining contract, but also constitutes a flagrant violation of duties imposed by the Labor Management Relations Act, 1947, 29 U.S. C.A. § 141 et seq. It is difficult to conceive of conduct calculated to destroy more effectively the national labor policy. Such violation of defendants’ duties supplies a sufficient legal basis for the imposition of punitive damages, and the award of such damages here was without doubt proper.
The defendants rely heavily on United Mine Workers of America v. Lambert, 214 F.2d 487 (C.A.4, 1954), and United Mine Workers of America v. Patton, 211 F.2d 742, 47 A.L.R.2d 850 (C.A.4, 1954), which are inapposite. These actions were brought under § 303(b), 29 U.S.C.A. § 187(b) of the Act which expressly limits a plaintiff’s recovery to “the damages by him sustained and the cost of the suit,” thereby precluding an award of punitive damages which, by their nature, are not compensatory. Section 301(a), of course, contains no such limitation.
. In this regard, the company refers us to Local Lodge No. 1898 of Dist. No. 38 of International Ass’n of Machinists, A.F. of L. v. Brake & Electric Sales Corp., 279 F.2d 590 (C.A.1, 1960), and Simadiris v. Hotel Waldorf Astoria Corp., 144 N.Y.S.2d 136 (S.Ct.1955), which are no help for in those decisions the trial courts expressly found that the plaintiffs, with full knowledge, condoned the acts which they relied on to establish a breach.
. 5 Corbin, Contracts, § 1077 (1951); 1 Sedgwick, Damages § 370 (1912); McCormick, Damages § 81 (1935); 5 Willis-ton, Contracts § 1340 (rev. ed. 1937); Restatement, Contracts § 342 (1932).
. E. g., Scalise v. National Utility Service, Inc., 120 F.2d 938 (C.A.5, 1941) (violation of statute in obtaining corporate charter); Sommerville v. Chesapeake & Potomac Telephone Co., 49 App.D.C. 3, 258 F. 147 (1919) (discontinuance of telephone service not willful and deliberate, punitive damages denied under circumstances) ; Burrus v. Nevada-California-Oregon Ry., 38 Nev. 156, 145 P. 926, L.R.A. 1917D, 750 (1915) (delay in operating train); Webb v. Atlantic Coast Line R. Co., 76 S.C. 193, 56 S.E. 954, 9 L.R.A., N.S., 1218 (1907) (failure to deliver baggage); Pittsburgh, C. & St. L. Ry. Co. v. Lyon, 123 Pa. 140, 16 A. 607, 2 L.R.A. 489 (1889) (refusal to deliver baggage); Southwestern Gas & Electric Co. v. Stanley, 123 Tex. 157, 70 S.W.2d 413 (1934) (termination of electrical services); Hall v. St. Louis-San Francisco Ry. Co., 224 Mo.App. 431, 28 S.W.2d 687 (1930) (failure to provide letter of discharge). See 5 Corbin, Contracts § 1077 (1951).
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:
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songer_casetyp1_1-3-1
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I
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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 "criminal - federal offense".
Donald E. DURNS, Appellant, v. UNITED STATES of America, Appellee.
No. 77-1163.
United States Court of Appeals, Eighth Circuit.
Submitted May 16, 1977.
Decided Sept. 14, 1977.
Certiorari Denied Nov. 14,1977.
See 98 S.Ct. 490.
David F. Williams, Kansas City, Mo., made argument, filed appearance and brief for appellant.
J. Whitfield Moody, First Asst. U. S. Atty., Kansas City, Mo. (argued and filed appearance), and Bert C. Hurn, U. S. Atty. (former), Kansas City, Mo., on brief for appellee.
Before STEPHENSON and WEBSTER, Circuit Judges, and BENSON, District Judge.
The Honorable Paul Benson, Chief Judge, United States District Court for the District of North Dakota, sitting by designation.
BENSON, District Judge:
Donald E. Durns appeals from a judgment of conviction for violation of 18 U.S.C. § 1201, the federal kidnapping statute. He contends the trial court erred:
(1) in denying his motion for judgment of acquittal on grounds of insufficiency of the evidence to sustain the conviction for the offense charged;
(2) in failing to give the jury a requested lesser included offense instruction, and in failing to give an instruction on identity in the form requested;
(3) in admitting into evidence a tape recording of a telephone conversation and allowing the recording to be played to the jury;
(4) in admitting into evidence a revolver, a knife and certain articles of clothing;
(5) in admitting into evidence testimony relating to a prior act of the defendant similar to the offense charged.
A fair construction of appellant’s specifications of error reveals that all, except the alleged error in failing to instruct on lesser included offense, relate to the issue of identity.
I. Facts.
The indictment under which appellant was convicted arose out of a series of events beginning on July 8,1976. Around noon on that day, Ethel M. Tanquary of Overland Park, Kansas, parked her car near the Ward Parkway Shopping Center in Kansas City, Missouri. As she was getting out of her automobile, a man forced his way into the car, declaring that he was armed with a knife and a gun and announced a robbery. He took control of the car and drove, with Mrs. Tanquary in the car, several miles south to a gravel road, where he stopped to search Mrs. Tanquary’s purse and remove rings from her fingers. Mrs. Tanquary signed a blank check for her abductor, who then placed tape over her eyes and tied her hands and feet.
From the gravel road the abductor drove to the Overland Park State Bank on Met-calf, located in Kansas, and attempted to cash the check signed by Mrs. Tanquary. The teller at the drive-in window of the bank refused to cash the check because of the amount. From the Overland Park State Bank the abductor drove back to the Ward Parkway Shopping Center, where he transferred his victim to another automobile. From the Ward Parkway Shopping Center he drove to an apartment in Kansas City, Missouri, where Mrs. Tanquary was held captive.
While Mrs. Tanquary was being held at the apartment, negotiations for her release were conducted between her abductor and her son, Edward Tanquary. Mr. Tanquary was first contacted at approximately 12:45 P.M. on July 8, the day his mother was kidnapped. At that time he was told where his mother’s car was located, and was instructed to get together $22,000 cash in tens, twenties and fifties. The caller informed Mr. Tanquary that he would contact him again the following day at approximately 5:00 P.M. with further instructions.
After the initial phone conversation, Mr. Tanquary contacted his attorney, who in turn notified the Overland Park Police and the Federal Bureau of Investigation. Tanquary assembled the ransom money as instructed, and with two agents of the F.B.I. awaited further word from the caller at his mother’s apartment. With Tanquary’s permission, one of the F.B.I. agents installed a listening and recording device on the phone at his mother’s apartment.
The next day, July 9, at approximately 5:00 P.M., Mr. Tanquary received instructions over the phone telling him where and when to drop the ransom money. The drop was made as instructed, and Mrs. Tanquary was released unharmed in Kansas City, Missouri, at approximately 8:30 P.M. on July 9. Around midnight that night, Appellant Durns was arrested at his apartment, and in a search of his person arresting authorities found a quantity of the ransom money, a knife and a wallet containing identification of Donald E. Durns.
A search of Durns’ apartment on July 10 turned up approximately $20,000 in ransom money as well as some bindings and tape used to restrain Mrs. Tanquary during her stay in the apartment, and a paper cup with lipstick smears later identified as having come from Mrs. Tanquary. The same day, July 10, the F.B.I. also recovered from Shirley Nicholi, an ex-girlfriend of Durns, a ring identified by Mrs. Tanquary as one taken from her during the kidnapping, a revolver and a quantity of the ransom money. Shirley Nicholi testified at trial that these items were given to her by Durns, although she was unable to identify the weapon. A 1970 white over blue Dodge automobile was also recovered from behind Shirley Nicholi’s residence, which was identified at trial as the one used in the kidnapping.
At trial, Mrs. Tanquary described her abductor in general terms as a white man between 45 and 50 years old, 5 feet 10 or 11 inches tall, weighing approximately 185 pounds, clean shaven, with dark hair, graying at the temples, and wearing dark rimmed glasses. She was unable to positively identify Durns as her abductor.
Testimony at trial included that of Janet Renick, who described an incident which occurred on June 28, 1976. Mrs. Renick testified that as she approached her car after shopping at the Prairie Village Shopping Center in Prairie Village, Kansas, an individual whom she identified as Durns was seated in a white over blue Dodge with a license number matching that of the Dodge found behind Shirley Nicholi’s residence. The individual got out of his car, grabbed Mrs. Renick, held a gun to her head and announced a kidnapping. Mrs. Renick struggled with her assailant and was able to break free. Her assailant panicked, returned to his car and fled the scene.
II. Identity.
Appellant concedes, and the record is clear, that the statutory elements to establish the crime of kidnapping under 18 U.S.C. § 1201 were proven. Appellant’s argument is that the evidence is insufficient to establish that he committed the act.
On appellate review of the sufficiency of the evidence, the court must view the evidence in the light most favorable to the verdict rendered. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). It must accept as established any and all reasonable inferences from the evidence that tend to support the jury’s verdict. United States v. Overshon, 494 F.2d 894, 896 (8th Cir.), cert. denied, 419 U.S. 853, 878, 95 S.Ct. 96, 42 L.Ed.2d 85 (1974). The evidence need not “exclude every reasonable hypothesis except that of guilt [; it is enough] that it be sufficient to convince the jury beyond a reasonable doubt that the defendant is guilty.” United States v. Shahane, 517 F.2d 1173, 1177 (8th Cir.), cert. denied, 423 U.S. 893, 96 S.Ct. 191, 46 L.Ed.2d 124 (1975). Furthermore, because circumstantial evidence is intrinsically as probative as direct evidence, Holland v. United States, 348 U.S. 121, 140, 75 5. Ct. 127, 99 L.Ed. 150 (1954), the same standard applies where a conviction rests entirely on circumstantial evidence. United States v. Carlson, 547 F.2d 1346, 1360 (8th Cir. 1976).
The following circumstantial evidence presented by the prosecution at trial, when viewed under the applicable standards, is clearly sufficient to sustain the finding by the jury that it was Durns who committed the act:
(a) The vehicle used in the kidnapping, a 1970 Dodge, was owned by an ex-girlfriend of defendant, and the car was in Durns’ possession during the period in which the kidnapping took place.
(b) The apartment in which the kidnap victim was held for nearly two days was leased to Durns.
(c) The bulk of the ransom money was recovered from Durns’ apartment; part of the ransom money was recovered from Durns’ person the night of the ransom transfer, and part was recovered the day following the transfer from his ex-girlfriend, Shirley Nicholi, the owner of the 1970 Dodge.
(d) The ring taken from the kidnap victim, a revolver found under the seat of the Dodge, a part of the ransom money, and the Dodge automobile were turned over to Shirley Nicholi by Durns.
(e) Durns was identified by a bank teller as the man who attempted to cash a $12,000 check in the drive-up window of Overland Park State Bank on July 8, 1976.
Our holding that the foregoing evidence relating to the issue of identity is sufficient to sustain the jury’s determination on that issue, taken together with appellant’s concession that the elements of the crime had been proven, renders the appellant’s remaining specifications of error relating to identity, specifically 3, 4 and 5 as set out in this opinion, somewhat moot on that issue. We therefore need only consider whether admitting the evidence in question in those specifications was error, and, if error, whether it was prejudicial. United States v. Bartlett, 449 F.2d 700, 706 (8th Cir. 1971), cert. denied, 405 U.S. 932, 92 S.Ct. 990, 30 L.Ed.2d 808 (1972); Lowe v. United States, 389 F.2d 108, 112 (8th Cir.), cert. denied, 392 U.S. 912, 88 S.Ct. 2072, 20 L.Ed.2d 1371 (1968).
III. Tape Recording.
The telephone conversation recorded on tape and played to the jury was the July 9 call from the kidnapper to Edward Tanquary, giving him instructions for the ransom drop. Appellant challenges the admissibility of the recording, alleging the caller was not identified. He bases his challenge on United States v. McMillan, 508 F.2d 101 (8th Cir. 1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1577, 43 L.Ed.2d 782 (1975), wherein this Court set out the foundational requirements for the admission of evidence obtained by electronic monitoring. Appellant concedes that six of the seven foundational requirements of McMillan were met, but contends that, because the evidence at trial was not sufficient to identify the speaker, the recording failed to qualify under the final McMillan requirement, and was thus not admissible. Durns claims that admission of the tape into evidence under these circumstances violated his Fourth Amendment right to be free from unreasonable searches and seizures and his Fifth Amendment right to due process of law. Appellant’s claims are without merit.
In McMillan, this Court said:
It is now well settled that a defendant’s Fourth Amendment rights are not violated when the defendant’s conversations with a government informant are electronically monitored by a government agent with the consent of the informant.
508 F.2d at 104 (citations omitted). It follows that an abductor, holding his victim for ransom, has not had his Fourth Amendment rights violated when his communication with the party who is to pay the ransom is electronically recorded by a government agent with the consent of that party.
Durns’ Fifth Amendment claim goes to the heart of the McMillan foundational requirements, the purpose of which is to insure that only competent and reliable tape recording evidence adverse to an accused is allowed to go before the trier of fact. These requirements do not, however, exist in vacuo; they become meaningful only when viewed in light of the facts of a specific case.
In the case at bar, a call was made by Mrs. Tanquary’s abductor to her son shortly after she was kidnapped. The son was told where he could find his mother’s car, and that her driver’s license, the car
keys and a safety deposit box key were under a floor mat inside the car. Hp was also told he would be contacted the following day at approximately five o’clock with instructions for transfer of the ransom money. At about five o’clock the next day the son received another telephone call from the abductor, this time at his mother’s apartment. His mother was put “on the line” for a few moments; she stated she was all right and that Tanquary, her son, should do exactly as her abductor said. The abductor then hung up the phone after stating he would call back within five minutes. Approximately thirty seconds later he called back with instructions to leave the ransom money at a certain spot at a specific time. About ten minutes after the money was delivered as instructed, it was picked up, and a little over an hour later Mrs. Tanquary was released. In these circumstances, and especially in light of the similarity between what was arranged on the telephone and what subsequently occurred,
United States v. Hassell, 547 F.2d 1048, 1054-55 (8th Cir. 1977), we conclude there was more than sufficient evidence to identify the caller as Ethel Tanquary’s abductor under the McMillan test. United States v. McMillan, 508 F.2d at 105; United States v. Bonanno, 487 F.2d 654, 659 (2d Cir. 1973); Van Riper v. United States, 13 F.2d 961, 968 (2d Cir.), cert. denied, 273 U.S. 702, 47 S.Ct. 102, 71 L.Ed. 848 (1926). The tape recording met the McMillan requirements in every respect.
Our conclusion is based on the purpose for which the tape recording evidence was offered. Government counsel, in response to defense counsel’s objection at trial, stated that the purpose of the offer of the tape recording was (1) to introduce evidence of a holding “for ransom or reward,” one of the elements of the offense of kidnapping which the prosecution was required to prove beyond a reasonable doubt, and (2) to show the means by which this particular crime of kidnapping for ransom was committed. The decision of the trial court to admit the offered evidence on this basis was correct.
Durns raises an additional issue of prejudice with respect to the tape recording evidence; in substance, he argues that the jury was allowed by the court’s ruling to speculate as to whether he, Durns, was the “other party on the line.” However, the trial judge properly cautioned the jury prior to the playing of the tape as to the purpose of its introduction and as to the proper scope of the jury’s consideration of it. We find this assertion of prejudice without merit.
IV. Evidence of Weapons and Clothing.
The kidnap victim, Ethel Tanquary, testified that at the time of her abduction she was told by her abductor that he had a knife and a gun and that he would use them if he had to; she further testified that an object was pressed against her side which she was told was a gun, a portion of which she saw and described at trial as being gold in color. When Durns was arrested the night Mrs. Tanquary was released, a knife with a brass end was taken from his person. A revolver, fully loaded, was recovered from his ex-girlfriend, Shirley Nicholi, who testified that at the direction of Durns she took the gun out of the Dodge automobile driven by Durns on the night of July 9, 1976.
We conclude both weapons were sufficiently identified and linked to defendant to have warranted their admission into evidence. Caldwell v. United States, 338 F.2d 385, 390 (8th Cir. 1964), cert. denied, 380 U.S. 984, 85 S.Ct. 1354, 14 L.Ed.2d 277 (1965).
Appellant claims he was prejudiced by the admission in evidence of various items of clothing either worn by him at the time of his arrest or taken from his apartment, but as to those items he has wholly failed to carry his burden to demonstrate prejudicial error. See United States v. Bartlett, 449 F.2d at 706, and Lowe v. United States, 389 F.2d at 112.
IV. Evidence of Other Crimes.
One Janet Renick was permitted to testify at trial, over objection, that on June 28, 1976, just ten days prior to the Tanquary kidnapping, Durns attempted unsuccessfully to abduct her in a manner similar to that employed in abducting Mrs. Tanquary.
Evidence of other criminal conduct is inadmissible unless it is relevant to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Fed.R.Ev. 404(b).
It was not an abuse of discretion for the court to admit relevant evidence of the essential issue of motive and intent unless the court found that its probative value was “substantially outweighed by the danger of unfair prejudice.” Fed.R.Evid. 403.
United States v. Adcock, 558 F.2d 397 (8th Cir. 1977). See also United States v. Maestas, 554 F.2d 834 (8th Cir. 1977).
The thrust of Durns’ defense at trial and the thrust of his appeal in this Court was on the issue of identity. The other crime evidence was relevant to that issue. On appeal Durns does not raise an issue of its relevancy. He does argue, as he did to the trial court, that it was “highly prejudicial and that its probative worth was far outweighed by its probable prejudicial impact.” The trial court overruled his objections and did not find a danger of unfair prejudice outweighing its probative value. We hold the admission of the evidence was not error.
Y. Jury Instructions.
Appellant’s remaining specification of error relates to jury instructions. His principal contention is that a violation of 18 U.S.C. § 1201, the kidnapping statute, necessarily encompasses a violation of 18 U.S.C. § 1202, which prohibits the receipt, possession or disposition of ransom money. Therefore, he argues, the jury should have been instructed on § 1202 as a lesser included offense and the provisions of § 1202 should have been set out in the instructions. He also asserts as error the court’s refusal to give a portion of defendant’s proposed instruction on the issue of identification.
a. Lesser included offense.
In Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965), the Supreme Court held that a lesser included offense charge is proper where the charged greater offense upon which an accused is tried requires the jury to find an additional disputed element which is not required for conviction of the lesser included offense. Id. at 350, 85 S.Ct. 1004. This principle was the basis for the test set forth in United States v. Thompson, 492 F.2d 359 (8th Cir. 1974), in which this Court held that in order for a defendant to be entitled to a lesser included offense instruction, it must appear that
(1) a proper request is made; (2) the elements of the lesser offense are identical to part of the elements of the greater offense; (3) there is some evidence which would justify conviction of the lesser offense; (4) the proof of the element or elements differentiating the two crimes is sufficiently in dispute so that the jury may consistently find the defendant innocent of the greater and guilty of the lesser included offense; and (5) there is mutuality .
492 F.2d at 362 (emphasis deleted). See also United States v. Klugman, 506 F.2d 1378 (8th Cir. 1974).
The indictment in this case charged defendant with having willfully and knowingly transported in interstate commerce Ethel M. Tanquary, who had theretofore been unlawfully seized, kidnapped and carried away and held by defendant for the purpose of ransom, in violation of 18 U.S.C. § 1201. Establishing a violation of § 1202 requires proof of a knowing receipt, possession or disposition of money or property which was delivered as ransom or reward, elements that are clearly not identical to any of the elements of a § 1201 kidnapping offense. The trial court was correct in refusing to instruct on § 1202 as a lesser included offense.
b. Identification.
The trial court charged the jury quite exhaustively on the issue of identification, utilizing most of defendant’s proposed instruction, which was based on United States v. Telfaire, 152 U.S.App.D.C. 146, 152-153, 469 F.2d 552, 558-59 (1972). However, the court deleted the first and last paragraphs of the Telfaire model instruction, and Durns challenges the omission of these paragraphs on appeal.
This Court recently discussed the circumstances in which a jury should be instructed on the issue of identification along the lines of the Telfaire instruction. In United States v. Dodge, 538 F.2d 770 (8th Cir. 1976), it stated that
[although we do not specifically adopt the Telfaire model instruction today, we will view with grave concern the failure to give specific and detailed instructions on identification in future cases where identification of the defendant is based solely or substantially on eyewitness testimony.
Id. at 784 (emphasis added). The focus of this Court’s inquiry in Dodge was on the situation where there is little or “no evidence of identification except eyewitness testimony.” Id.
As noted previously, there was substantial circumstantial evidence in this case, other than eyewitness testimony, identifying Durns as the criminal actor. This case is not one in which the identification of the defendant was based solely or substantially on eyewitness testimony. The court’s instruction on identification was clearly adequate.
The judgment of conviction is affirmed.
. Although the individual announced that he was armed, Mrs. Tanquary did not see a weapon.
. Under bank policy, checks for amounts over $500 could not be cashed at drive-up windows. The abductor in this case had filled in the amount of $12,000 on the signed check after questioning Mrs. Tanquary as to an amount for which she could write a check.
. Dums rented the apartment using the alias William Douglas, the same name he initially gave arresting officers when they apprehended him on July 9, 1976.
. The revolver was later identified by an F.B.I. agent as being the weapon he obtained from Shirley Nicholi on July 10, 1976.
. The elements are:
(1) interstate transportation of the victim;
(2) lack of consent;
(3) holding for ransom, reward or otherwise;
(4) the doing of such acts knowingly and
willfully.
See United States v. Johnson, 514 F.2d 92, 95 (5th Cir.), cert. denied, 423 U.S. 1020, 96 S.Ct. 459, 46 L.Ed.2d 393 (1975), rehearing denied, 424 U.S. 935, 96 S.Ct. 1152, 47 L.Ed.2d 344 (1976); Hattaway v. United States, 399 F.2d 431, 433 (5th Cir. 1968).
. The McMillan requirements are:
(1) That the recording device was capable of taking the conversation now offered in evidence.
(2) That the operator of the device was competent to operate the device.
(3) That the recording is authentic and correct.
(4) That changes, additions or deletions have not been made in the recording.
(5) That the recording has been preserved in a manner that is shown to the court.
(6) That the speakers are identified.
(7) That the conversation elicited was made voluntarily and in good faith, without any kind of inducement.
508 F.2d at 104.
. Rule 105, Fed.R.Ev., provides as follows:
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
The limiting instruction in this case was given by the court sua sponte.
. The essential elements of 18 U.S.C. § 1202 are:
(1) receipt, possession or disposition of money or property,
(2) which was delivered as a ransom or reward,
(3) in connection with a kidnapping under 18 U.S.C. § 1201, and
(4) knowledge that the money or property so received, possessed or disposed of had been delivered as ransom or reward.
. The maximum penalty provided for violation of 18 U.S.C. § 1201 is life imprisonment, while the maximum penalty for violating 18 U.S.C. § 1202 is $10,000 fine or ten years imprisonment, 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:
|
songer_attyfee
|
C
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on attorneys' fees favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Richard M. DONAHEY and Patricia A. Donahey, Plaintiffs-Appellants, Cross-Appellees, v. Helen L. BOGLE, Defendant-Appellee, Cross-Appellant, Seabourne S. Livingstone; H. Gordon Wood; and St. Clair Rubber Company, a Michigan corporation, jointly and severally, Defendants-Appellees.
Nos. 92-1128, 92-1151.
United States Court of Appeals, Sixth Circuit.
Argued Nov. 20, 1992.
Decided March 9, 1993.
H.G. Sparrow, III (argued and briefed), Dickinson, Wright, Moon, Van Dusen & Freeman, Detroit, MI, for plaintiffs-appellants, cross-appellees.
Jay E. Brant, Mark A. Goldsmith (argued), Daniel G. Helton (briefed), Honig-man, Miller, Schwartz & Cohn, Detroit, MI, for defendant-appellee, cross-appellant.
Henry N. Carnaby, Bodman, Longley & Dahling, Troy, MI, for Seabourne S. Livingstone.
Robert G. Kamenec (briefed), Plunkett & Cooney, Detroit, MI, for St. Clair Rubber Co.
Before: KEITH and JONES, Circuit Judges; and ALLEN, Senior District Judge.
The Honorable Charles M. Allen, Senior United States District Judge for the Western District of Kentucky, sitting by designation.
CHARLES M. ALLEN, Senior District Judge.
The appeals and cross appeals of the parties arise out of a judgment entered following a lengthy bench trial and a 48-page Findings of Fact and Conclusions of Law. The issues presented to the trial court and to this Court involve the respective rights of the Donaheys and Helen Bo-gle under Michigan land purchase law and the rights and liabilities of all the parties under the Comprehensive Environmental Response Compensation and Liability Act (hereinafter CERCLA), 42 U.S.C. § 9601 et seq.
The Donaheys appealed from the judgment of the trial court holding that Richard Donahey was liable under his land purchase contract to Helen Bogle. In addition the Donaheys appealed from the judgment of the trial court that their claims under CERCLA were without merit and that they were not entitled to declaratory judgment relief for future cleanup of the property purchased by the Donaheys. Helen Bogle appeals from the judgment which held that she was a “responsible party” under CERCLA and she contends that she is entitled to a monetary judgment in excess of that awarded by the trial court. Both Helen Bogle and the Donaheys challenge the findings of the court that Seabourne Livingstone was not a “responsible party” under CERCLA.
In 1962, St. Clair Rubber Company rented Marysville, Michigan property for a period of ten years. The lessor was Helen Bogle, who is the sister of Seabourne Livingstone, the sole stockholder of all the stock of St. Clair Rubber Company. The property was again leased in 1972 for another ten year period.
St. Clair’s manufacturing processes left a waste product that was combined with a solvent. This mixture was drained into 55 gallon drums and designated as sludge. In the early 1970s, St. Clair transported 12 to 20 barrels or drums of sludge to the property every six months for disposal. After allowing the sludge to drain from the barrels for approximately one week, the employees returned to burn the sludge. Some time in the 1970s, St. Clair stopped its dumping and burning at the property.
In 1981, Bogle listed the property for sale. Donahey, the majority stockholder of a manufacturing firm, inspected the property and charted an area used as a dump. His attorney sent a letter to Bogle expressing concern over the presence of a “dump.” To allay concern, St. Clair and Donahey entered into an “Agreement to Clean Up Dump”, in which St. Clair promised to remove any hazardous substances found on the property and to restore the land to an environmentally satisfactory condition. The agreement included St. Clair’s promise to indemnify Donahey for costs resulting from St. Clair’s contamination of the land.
On the same day in 1982 on which Dona-hey and St. Clair executed the clean up agreement, Donahey purchased the property from Bogle for $115,000. Their contract provided for a down payment of $28,750, with the balance of the purchase price to be paid over a period of ten years at 11% interest in monthly installments of $980.31.
In 1985, following the publication of a newspaper article revealing the existence of environmental contamination at the site, the Michigan Department of Natural Resources (hereinafter “MDNR”) sent letters designating each party to this law suit a “potentially responsible party,” and requesting certain monitoring and clean-up activities. In 1986, the Donaheys employed an environmental consultant, Lawrence Halfen, to advise them with respect to the contaminated property.
Dr. Halfen’s preliminary investigation found a number of rusting and corroding barrels and non-hazardous waste materials which posed no immediate threat to the environment. After receiving authorization to proceed, he began work in August 1987, collecting and disposing of these old barrels and other materials. He removed approximately 350 cubic yards of material from the site at a cost of approximately $28,000.
However, at the end of the third day of removing the barrels and scraping the site, workers discovered five pits that contained hazardous substances. Dr. Halfen decided to address the problem on a temporary basis. He removed the materials from the pits so that he could assess their nature and volume. After draining the lagoon, he consolidated the pit materials with contaminated and uncontaminated soils taken from other areas at the site and placed the mixture in the lagoon basin. He placed a cap over the mound of materials, erected a snow fence around the area, and obstructed roadway access to the site.
Dr. Halfen characterized his treatment of the materials as a judgment call in the face of an immediate threat. He did not seek the advice of the MDNR. He completed his operations in late August 1987, and on September 1, 1987, he telephoned the MDNR representative to explain what he had found and what he had done. The MDNR never communicated to Donahey or to Dr. Halfen any protests about the work that Dr. Halfen did.
Subsequently, Dr. Halfen proposed further clean up measures at an estimated cost of $447,500. Unwilling to undertake the cost of further clean up efforts, the Donaheys abandoned the property in 1990.
The Donaheys filed suit asserting statutory and common law causes of action against Bogle, St. Clair Rubber and Sea-bourne Livingstone. They sought to rescind the purchase contract with Bogle, to recover costs incurred in attempting to clean up the environmental situation, and to recover attorneys fees of more than $279,000 incurred in these proceedings. By counterclaim, Ms. Bogle alleged a breach of the land purchase contract and failure to pay the sums due under that contract and she sought a judgment for the unpaid amounts plus interest. In addition, she asked for a declaration that she was not a covered party under CERCLA, and that Livingstone, Mr. Donahey and Mrs. Dona-hey were all covered parties.
The matter of rescission was first addressed on a summary judgment motion by District Judge Harvey, who found that the Donaheys were not entitled to rescission. After trial, District Judge Zatkoff reiterated that ruling, and made additional findings and conclusions, including the following pertinent to these appeals:
1. Mrs. Bogle was entitled to judgment for the unpaid balance owing on the land purchase contract plus interest on past due payments at the rate of 11% per year from June 8, 1987 until March 14,1989 (the date of filing of the counterclaim), together with pre-judgment interest from March 14, 1989 to the date of the judgment and judgment interest after the date of judgment.
2. Richard Donahey, Helen Bogle and St. Clair Rubber were covered persons under 42 U.S.C. § 9601 et seq. with respect to the environmental contamination at issue, but neither Pat Donahey nor Livingstone were covered persons.
3. None of the parties had incurred any recoverable response costs under CERCLA and the Donaheys were not entitled to a declaration of future liability pursuant to 42 U.S.C. § 9613(g)(2).
4. Richard Donahey was required to accept title to the property and if he failed to do so, Mrs. Bogle was entitled to present the judgment as deed of ownership to Richard Donahey.
5. Mrs. Bogle had no cause of action against St. Clair Rubber, Livingstone, and the Donaheys under CERCLA.
Before reaching the question of who is responsible for the cost of clean up, we must first dispose of the argument of Do-nahey that he is entitled to rescind the contract for the purchase of the land. He argues that the environmental contaminants that he discovered after the purchase contract was executed constituted an encumbrance that prevented Bogle’s transferring clear title to the property. The trial judge properly held that an “encumbrance” is a mortgage or a mechanics lien or tax lien or something of that nature that diminishes the value of the title to the property; environmental contaminants may diminish the value of the realty, but they do not constitute an encumbrance because they do not affect title. Furthermore, the contract between Donahey and St. Clair, by which St. Clair agreed to clean up the environmental contamination provided the trial court with ample evidence to support the determination that Donahey knew before purchase that there were environmental contaminants on the property.
The trial judge was also correct in finding that Donahey had breached the contract with'Bogle. The record clearly shows that as early as 1987 Donahey stated that he would not make any further payments on the real estate contract. This was anticipatory breach under Michigan law. Jackson v. American Can Co., Inc., 485 F.Supp. 370 (W.D.Mich.1980), and Brauer v. Hobbs, 151 Mich.App. 769, 391 N.W.2d 482 (1986).
Bogle contends that the trial court erred in calculating interest on her monetary award and that she is entitled to both statutory and contractual interest from March 14, 1989 to the date of judgment. The only Michigan authority cited on this point, McGraw v. Parsons, 142 Mich.App. 22, 369 N.W.2d 251 (1985), fully supports Bogle’s position.
We turn next to the issues raised under CERCLA. First, the trial court held that the Donaheys were not entitled to recover any costs under CERCLA for the actions which they took in an attempt to cleanup the property. Secondly, it held that Richard Donahey, Bogle, and St. Clair Rubber were responsible parties for the contamination of the property under 42 U.S.C. § 9607 but also held that Seabourne Livingstone was not liable as an owner or operator because he did not actively participate in the day-to-day activities of the corporation and had no knowledge of the environmental contamination created by it. In addition Bogle appeals from the findings that she was a responsible party as a former owner of the property, and also appeals from the court’s findings that Patricia Donahey was not a covered person under 42 U.S.C. § 9607(a).
The trial court correctly found that Richard Donahey and Helen Bogle and St. Clair were “responsible parties” under 42 U.S.C. § 9607(a). However, the court erred in concluding that Seabourne Livingstone was not liable as an owner under CERCLA. The evidence clearly established that Livingstone had the authority to prevent the contamination of the property by his corporation; thus, as a matter of law, Livingstone was a responsible party. Kelley v. Thomas Solvent Co., 727 F.Supp. 1532 (W.D.Mich.1989); New York v. Shore Realty Corp., 759 F.2d 1032, 1043 (2d Cir.1985); U.S. v. Ward, 618 F.Supp. 884 (E.D.N.C.1985); and U.S. v. Northeastern Pharmaceutical & Chemical Co., 810 F.2d 726 (8th Cir.1986).
The trial court rejected the contention that Halfen’s actions were a legitimate “judgment call,” and concluded that the Donaheys were not entitled to recover any of their costs incurred in the attempt to clean up the property. In making that determination, the court relied upon evidence that the substances discovered at the property were hazardous wastes within the meaning of Resource Conservation and Recovery Act (RCRA), 42 U.S.C. § 6903(5). Section 6903(5) defines hazardous waste as a compound that may cause death or serious permanent illness or pose a health risk when improperly stored. ENVIRONMENTAL PROTECTION AGENCY regulations define hazardous waste at 40 C.F.R. 261.31, and among the chemicals so designated are benzene, toluene, and xylene, substances used in St. Clair’s rubber manufacturing processes and in churn-washing procedures at St. Clair. Halfen’s testimony corroborated the Judge’s finding with reference to hazardous wastes.
The trial court found that the Donaheys’ clean up effort did not comply with RCRA regulations in that Donahey failed to obtain an RCRA permit and failed to conduct a detailed physical and chemical analysis of a representative sample. See 40 C.F.R. § 270.1(c)(l)(ii), and 40 C.F.R. § 264.13. The court also found that the‘Donaheys had failed to secure the site against unknowing and unauthorized entry by persons or livestock, and based his finding on evidence that the Donaheys had merely placed a snow fence around the consolidated pile in the large lagoon. The court also found that the Donaheys did not receive a permit or permit waiver for their storage of hazardous waste.
The trial court further relied on evidence that the Donaheys provided no drainage control, and that the consolidation of the wastes in the large lagoon increased the surface area of waste exposed to top soil by 50%. The court also found that by relocating the waste from the rubber pile to the large lagoon, Halfen spread.the contamination to a relatively untainted portion of the property. Based on these factors, the trial court held that the Donaheys’ actions did not facilitate the goals underlying CERCLA nor did they in any way improve the condition of the defiled property.
In order to recover the costs incurred in employing Halfen and attempting to improve the environmental condition of their property, the Donaheys are required to show that the property on which hazardous substances were contained was a facility under CERCLA’s definition of that term, that the release or threatened release of any hazardous substance from the facility had occurred, that such release or threatened release caused them to incur response costs that were necessary and consistent with the National Contingency Plan (NCP), and that defendant was one of the statutory classes of persons subject to liability. 3550 Stevens Creek Assoc. v. Barclays Bank, 915 F.2d 1355 (9th Cir.1990). In applying these standards to this case, the trial judge correctly held that an element of the Donaheys’ prima facie case was a showing that the response costs incurred were consistent with or substantially in compliance with the NCP.
The trial court’s findings that the cleanup work attempted by Halfen actually did more damage than benefit is substantiated by the testimony of Hunt, an expert witness, who stated that when Halfen consolidated non-hazardous material with hazardous material he contaminated the nonhazardous so that it would all have to be treated as hazardous. That, in turn, would make disposal much more complicated and expensive. Hunt estimated that it would have cost $305,000 in 1987 to dispose of the 1200 yards of material mounded in the lagoon, whereas it would have cost only $178,000 to dispose of the 800 yards of material actually' taken from the pits. Additionally, Hunt testified that Halfen had increased the health risks by creating an attractive nuisance and by necessitating repeated human contact with the hazardous material.
Although consistency with the NCP is a necessary element for recovery of remedial costs, it does not necessarily follow that consistency with the NCP is required for recovery of monitoring or investigative costs. In Carlyle Piermont Corp. v. Federal Paper Board Co., 742 F.Supp. 814 (S.D.N.Y.1990), the Court held that such costs are recoverable without regard to compliance with the NCP. See also Artesian Water Co. v. Government of New Castle County, 851 F.2d 643 (3rd Cir.1988) (monitoring and impact evaluation costs recoverable regardless of existence of other compensable response costs). This Court believes the Carlyle Piermont reasoning on the instant issue is sound, and we will remand for award of the Donaheys’ initial investigation costs.
Plaintiffs appealed from the decision of the trial court refusing to award them attorneys fees of $279,000. The trial court’s refusal rests primarily on the American Rule, although he also points out that there is specific statutory authorization for the government to recover attorneys fees and no such specific authorization for private parties. However, this Court prefers to follow the reasoning of cases such as Bolin v. Cessna Aircraft Co., 759 F.Supp. 692 (D.Kan.1991), Shapiro v. Alexanderson, 741 F.Supp. 472 (S.D.N.Y.1990), and General Electric Co. v. Litton, 920 F.2d 1415 (8th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1390, 113 L.Ed.2d 446 (1991). The Bolin opinion made the following persuasive statement:
By providing private parties with a federal cause of action for the recovery of necessary expenses in the cleanup of hazardous wastes, Congress intended § 107 as a powerful incentive for these parties to expend their own funds initially without waiting for the responsible persons to take action, [citations omitted]. The court can conceive of no surer method to defeat this purpose than to require private parties to shoulder the financial burden of the very litigation that is necessary to recover these costs.
759 F.Supp. at 710.
In following cases cited immediately above, we recognize that there are several cases to the contrary, such as T & E Industries, Inc. v. Safety Light Corp., 680 F.Supp. 696 (D.N.J.1988); Mesiti v. Microdot, Inc., 739 F.Supp. 57 (D.N.H.1990); Regan v. The Cherry Corporation, 706 F.Supp. 145 (D.R.I.1989).
We recognize that the Donaheys’ complaint included ten causes of action, and that the only recovery they have achieved is the very small amount awarded for investigative costs. We remand to the district court the question of amount of attorneys fees in light of the above observations.
In conclusion, the judgment of the trial court is affirmed as to all aspects of the case except for the following:
1. The judgment is reversed insofar as it does not consider Seabourne Livingstone a responsible party under CERC-LA.
2. The judgment is vacated with respect to cost of investigation, and the matter is remanded for determination and award of these costs.
3. The judgment is vacated with respect to the interest recoverable by Helen Bogle, and the matter is remanded for determination and award of statutory and contractual interest from March 14, 1989 to the date of judgment in lieu of the pre-judgment interest which the trial judge awarded her for that period of time.
4. The judgment denying attorneys fees in toto is vacated, and the matter remanded for determination of what constitutes reasonable attorneys fees recoverable under CERCLA.
Question: Did the court's ruling on attorneys' fees favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
GOVERNMENT OF the VIRGIN ISLANDS, Appellee, v. Claude RICHARDS, Appellant.
No. 13657.
United States Court of Appeals Third Circuit.
Argued Jan. 31, 1962.
Decided Feb. 26, 1962.
R. H. Amphlett Leader, Frederiksted, St. Croix, V. I., for appellant.
Leon P. Miller, U. S. Atty., Charlotte Amalie, St. Thomas, V. I., for appellee.
Before ALDRICH, GANEY and .SMITH, Circuit Judges.
Sitting by assignment.
PER CURIAM.
Under the narrow scope of a writ of review, 5 V.I.C. §§ 1421-1423, the •evidence is not before us. The only possible question open to petitioner (assuming that certain procedural points are decided in his favor) is whether he could be found guilty of disturbing the peace “by fighting with John Richards” although he had been found not guilty of “commit [ting] an assault and battery on the person of John Richards” on the same occasion. It seems manifest that there may be a spontaneous or voluntary fight in which neither party is genuinely an aggressor. In such instance the peace would be disturbed even though no assault and battery occurred.
The order of the District Court denying the petition is affirmed.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_typeiss
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
CHICAGO & N. W. RY. CO. v. GREEN.
No. 13558.
Circuit Court of Appeals, Eighth Circuit.
Oct. 27, 1947.
Alfred E. Rietz, of St. Paul, Minn. (Lowell Hastings, of Chicago, 111., on the brief), for appellant.
Sidney S. Feinberg, of Minneapolis, Minn. (Tom Davis and Carl L. Yaeger, both of Minneapolis, Minn., on the brief), for appellee.
Before SANBORN, THOMAS and JOHNSEN, Circuit Judges.
JOHNSEN, Circuit Judge.
The appeal is from a judgment recovered by a brakeman against the Chicago and North Western Railway Company, on a jury trial, under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51 et seq., for injuries sustained in a derailment.
The train involved was a passenger train of 16 cars running from Chicago to Omaha. The derailment occurred about 3% miles west of Colo, Iowa. The last 6 cars of the train and the rear wheels of the preceding car all left the track. This resulted in the rails being torn up for some distance, as the train was being brought to a stop. When the track left standing was examined, it was found that one of the rails had broken or snapped off about 12 to 15 inches from the point where it was joined to-the preceding rail.
According to the testimony of plaintiff,, the rail “looked like it had been partly broken before”, in that the break “sort of looked part new and part rusty.” He testified also that some of the ties were torn, out and broken by the derailment and that “these ties were rotten-—-they were spongy-like.” “Where they had broken in two, you could see the inside was solid and the outer side was rotten and soft.” He further testified that at Clinton, Iowa,, a “slow order” had been given the crew,, which directed them “to run slow for a mile and a half” on leaving Colo. The cross-examination of the engineer showed that the train was running between 50 and 60 miles per hour as it approached the place of the derailment and that it was-somewhat late.
Plaintiff was the rear brakeman on the train and was sitting in the smoking compartment of the last car at the time of the-accident. He claimed to have been thrown to the floor under a wash basin and to-have struck his back on some pipes, with the result that a herniated intervertebral disc developed.
The complaint relied upon the doctrine of res ipsa loquitur. It also, however, contained a general allegation that “Defendant so negligently, recklessly and carelessly controlled, managed and operated said train that the same was caused to be derailed.” On the trial, plaintiff further orally requested and was granted leave to amend the complaint “so that it may allege in substance that the defendant so negligently conducted its general business of railroading and was so negligent * * * that the train upon which the plaintiff was employed was caused to be wrecked.” No formal amendment of the complaint itself was made.
To show the cause of the accident and the absence of any negligence on its part, defendant undertook to prove that the derailment was due to a transverse fissure, i. e., to an internal defect and deterioration in the head of the rail; that this fissure had spread over 30 per cent of the head and produced a weakness that made the rail break and snap off as the engine and the first cars of the train passed over it; that the fissure was not externally visible and so could not be detected in the patrol inspections which defendant daily made of its tracks and roadbed; that the only means known for detecting such an internal fissure was by the use of a special electrical-contact machine, known as the Sperry detector, which was not purchasable but was merely rentable from the manufacturer, and which defendant had thus rented and run over its tracks twice a year; and that such a test with the Sperry detector had last been made of the rails involved 4% months before the accident, at which time all the rails in the track which the detector then showed to be fissured were removed and replaced.
To further establish that the rail was not previously broken, defendant also showed that the engine was equipped with an electrical signal box in front of the engineer, which would turn red at a distance of 11,000 feet from a broken rail or other traffic obstruction, such as a train ahead, that disrupted the electrical circuit in the track; that the signal box was part of an automatic train control system and whenever it thus was caused to turn red, unless the engineer immediately pushed an acknowledging lever and assumed control of the brakes, the brakes would set mechanically and the speed of the train would be reduced to 17 miles per hour; that on the occasion in question, according to the engineer’s testimony, the signal box did not turn red until “just about the place where it [the rail] went out”; and that the engineer thereupon immediately applied the brakes and sought to bring the train to a stop.
Defendant contends that on this explanation and showing it was entitled to a directed verdict and that the trial court erred in denying its motion. But assuming that the fissure was the cause of the breaking of the rail and of the wreck, the question whether defendant had exercised reasonable care to avoid the accident was still one of fact for "the jury and not one of law for the court. For instance, the court could not on the testimony have declared as a matter of law that a use of the Sperry detector more often than once every six months would have been physically, practicably or economically impossible, or that it was not otherwise reasonably necessary. As a matter of fact, it was not even shown that such a semi-annual use constituted the recognized standard in the railroad world for dealing with the technical problem.
Again, if the evidence as to the. order given at Clinton to run the train slow on leaving Colo was properly admitted by the trial court (which question will be later considered), the engineer’s admission that the train was late at the time and was traveling at 50 to 60 miles per hour also made the situation subject to the inference, in the light of the “slow order”, that defendant had not fully explained all the circumstances connected with the accident and that a disregarding of the “slow order” (the reason for whose issuance was not shown) may perhaps have been a factor in the derailment. Further, the testimony of plaintiff, if believed, that the break in the rail seemed to be “part new and part rusty” and “looked like it had been partly broken before”, and that the ties were “rotten and spongy-like”, when considered with the evidence of speed and the engineer’s admission that a mere partial break in the rail might not disrupt the electrical circuit, so as to cause the signal box in the engine to turn red as the train approached the point, similarly could be accepted by the jury as elements of inference on the inabsoluteness of defendant’s explanation of the accident and on its possible causative factors.
In connection with what we have said, there must be kept in mind the emphasis in the recent decisions of the Supreme Court that the scope of jury inference in cases under the Federal Employers’ Liability Act must be liberally and not narrowly or stultifyingly viewed. See Lavender v. Kurn, 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916; Tiller v. Atlantic Coast Line R. Co., 323 U.S. 574, 65 S.Ct. 421, 89 L.Ed. 465; Tennant v. Peoria & P.U. Ry. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L.Ed. 520; Bailey v. Central Vermont Ry., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444. Cf. also Chicago & N. W. R. Co. v. Grauel, 8 Cir., 160 F.2d 820. And traditionally, even more plenary than in cases requiring proof of specific negligence is the scope of inference which has been recognized as being open to a jury in situations of res ipsa loquitur.
Thus, it was said in the somewhat early case of Gleeson v. Virginia Midland Railroad Co., 140 U.S. 435, 444, 11 S.Ct. 859, 862, 35 L.Ed. 458: “When [the plaintiff] proves the occurrence of the accident, the defendant must answer that case from all the circumstances of exculpation, whether disclosed by the one party or the other. * * * And it is for the jury to say, in the light of all the testimony, and under the instructions of the court, whether the relation of cause and effect did exist, as claimed by the defense, between the accident and the alleged exonerating circumstances.”
Only where the defendant’s evidence of explanation and exculpation is so legally absolute that no possible hypothesis of proximate negligence can reasonably survive it on the facts and circumstances of the accident is a court entitled to direct a verdict in a res ipsa loquitur case. Cf. Myers v. Pittsburgh Coal Co., 233 U.S. 184, 193, 34 S.Ct. 559, 58 L.Ed. 906. And these in cases under the Federal Employers’ Liability Act will be situations of “the rarest exceptions”. Terminal R. Ass’n of St. Louis v. Staengel, 8 Cir., 122 F.2d 271, 276, 136 A.L.R. 789. See also Southern Ry. Co. v. Hussey, 8 Cir., 42 F.2d 70, 73, 74, 74 A.L.R. 1172.
Of even more specific application here is the recent decision of the Supreme Court in Jesionowski v. Boston & M.R.R., 329 U.S. 452, 458, 67 S.Ct. 401, 404, 91 L.Ed. —, which, like this, was a derailment case and in which the court said: “Derailments are extraordinary, not usual, happenings. When they do occur, a jury may fairly find that they occurred as a result of negligence. * * It would run counter to common everyday experience to say that, [where the defendant was the exclusive controller of all the factors which may have caused the derailment] the jury was without 'authority to infer that either the negligent operation of the train or the negligent maintenance of the instrumentalities [involved] was the cause of the derailment.”
The evidence which has been set out above and the authorities cited make unnecessary, we think, any further discussion of defendant’s contention that there was no basis for allowing the jury to decide whether defendant had been guilty of proximate negligence in the operation of its train or in the maintenance of its track and roadbed. For the court to have taken these questions from the jury, as defendant requested, would clearly have been error.
Defendant further contends that, if the case was one for the jury, it was error for the court to deny its request for a specific instruction on its explanation and defense that the derailment was due solely to the development of a fissure in the rail and that this fissure could not have been discovered by the exercise of reasonable care so as to make defendant chargeable with responsibility for the accident.
The instruction, which was timely requested, was in the following language: “There is evidence in this case that the derailment in question was caused by the breaking of the rail in the track. There is also evidence that the breaking o.f the rail was Caused by what is known 'as a fissure in the rail. The defendant contends that a fissure is a progressive deterioration of the rail and that the fissure could not have been discovered by the exercise of reasonable care or inspection of the rail by the defendant. You are instructed that if you find by a fair preponderance of the evidence in this case that the derailment was caused by a fissure and that such fissure could not have been seen or that it could not have been discovered by the defendant by the exercise of reasonable care, then your verdict must be for the defendant.”
The court instructed generally as a matter of res ipsa loquitur that the jury might “draw an inference of negligence on the part of the defendant, in the absence of an explanation by the defendant that the accident did not arise from its want of reasonable care”; that it was for the jury “to decide whether the defendant in this case made explanation that satisfies you”; that if the jury found that plaintiff was injured in the accident and “that the accident and injuries to the plaintiff were the result of the failure of the defendant to use due care in the operation of its train or its failure to have and maintain its tracks and roadbed in a reasonably safe condition, then the defendant was negligent and if such negligence was, in whole or in part, the proximate cause of the accident, then your verdict should be for the plaintiff”; and that if the jury found that there had been no such negligence on the part of the defendant, or that if the defendant had been negligent but its negligence was not the" proximate cause of the accident, or that the plaintiff, as claimed by the defendant, had not been injured in the accident, then a verdict should be returned for the defendant.
The instructions made no direct reference to the matter of a fissure, except in the enumeration to the jury of the undisputed facts, where the court merely said: “It is admitted that there was a fissure in the rail at the place where it was broken.”
The requested instruction sought to expressly put before the jury defendant’s theory of the accident and to apply concretely to that theory, if the jury accepted it, the test for determining defendant’s liability in the situation. Defendant, in providing in the instruction that “a fair preponderance of the evidence” was necessary to entitle the jury to find that the derailment was caused solely by the fissure and that defendant could not have discovered the fissure through the exercise of reasonable care in maintaining or inspecting its tracks, had imposed upon itself a greater burden than it legally was required to assume, but this obviously could not constitute error against the plaintiff which would justify the refusing of the instruction. In the technical scales of liability, it is of course the existence of negligence and not its non-existence that is required to be preponderantly established in a res ipsa loquitur case, as in any other, either on the basis of the general inferences possible in such a situation or of any specific proof of lack of care which the evidence may show,
We think the refusal of the court to give the requested instruction, either in its tendered form or in a restatement of its material substance, was error. It has long been the rulé that, as against a mere general or abstract charge, a party is entitled to a specific instruction oil his theory of the case, if there is evidence to support it and if a proper request for such an instruction is made. 53 Amjur., Trial, § 626, pp. 487, 488. See also Western Union Tel. Co. v. Morris, 8 Cir., 105 F. 49, 54; Northern Central Coal Co. v. Hughes, 8 Cir., 224 F. 57, 59; Ranney v. Barlow. 112 U.S. 207, 214, 5 S.Ct. 104, 28 L.Ed 662; Pennock v. Dialogue, 2 Pet. 1, 15, 27 U.S. 1, 15, 7 L.Ed. 327. In fact, even a request for an instruction which is not entirely perfect may in some situations impose upon the court the duty to give a more specific instruction on a particular issue, where it soundly appears that such an instruction is needful to enable the jury to intelligently determine the question. Cf. E. I. Du Pont De Nemours & Co. v. Frechette, 8 Cir., 161 F.2d 318, 323; Feldmann v. Connecticut Mutual Life Ins. Co., 8 Cir., 142 F.2d 628, 631; Pfotzer v. Aqua Systems, 2 Cir., 162 F.2d 779, 783.
As we have indicated, the court had instructed that the jury was entitled to draw an inference of negligence against defendant in its operation of the train or in its maintenance of the tracks and roadbed, “in the absence of an explanation by the defendant that the accident did not arise from its want of reasonable care”, and that it was for the jury to decide whether defendant had made such an explanation as satisfied it. With the matter thus broadly left to the jury, the importance to the defendant of having the court further call to the jury’s attention that the explanation and defense which the defendant had undertaken to make were that the accident was caused solely by a fissure in the rail, which it contended it had used reasonable care to detect and by the use of such care could not have discovered or guarded against, and that if the jury so found then defendant would not be liable, would seem to 'be obvious. The court should have given the requested instruction or a restatement of its material substance.
The contention also is made that the court’s charge in fact imposed an improper standard of duty upon defendant in the maintenance of its tracks and roadbed. We have previously quoted the portion which told the jury that if “the accident and injuries to the plaintiff were the result of the failure of the defendant to use due care in the operation of its train or its failure to have and maintain its tracks and roadbed in a reasonably safe condition, then the defendant was negligent”. (Emphasis added.) Defendant argues that this language made it in practical effect an insurer of the condition of its tracks and roadbed because its liability was made to depend upon whether it had failed to have and maintain such facilities in a reasonably safe condition and not upon whether it had failed to exercise reasonable care to see that they were in such condition and to keep them so.
An employer is of course not an insurer under the Federal Employers’ Liability Act, but his liability is for negligence in not having exercised due care generally on the circumstances of the particular situation or in having failed to perform an express statutory duty. Ellis v. Union Pacific R. Co., 329 U.S. 649, 653, 67 S.Ct. 598, 600, 91 L.Ed. -; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 67, 63 S.Ct. 444, 451, 87 L.Ed. 610, 143 A.L.R. 967; Sheaf v. Minneapolis, St. P. & S. S. M. R. Co., 8 Cir., 162 F.2d 110, 113.
A literal reading of the language here complained of would make it subject to the objection urged by defendant. But we think the words “to use due care” are reasonably implia-ble in context from the preceding clause of the instruction, so that this portion should and would be read as “failure [to use due care] to have and maintain its tracks and roadbed in a reasonably safe condition”. That this is its natural import from context is confirmed by the fact that defendant itself apparently so understood and accepted it at the time, for it did not on the trial make the objection which it now urges. Furthermore, consideration of any defect in an instruction to which a party has failed to make objection in the'trial court under Federal Rules of Civil Procedure, Rule 51, 28 U.S.C.A. following section 723c, is a matter of grace, and not of right, for an unusual and inherently unfair situation only. No such situation is involved on the present instruction.
A number of errors are alleged in the admission of evidence and in refusals to strike. On these contentions generally, it is necessary to keep in mind first of all that “Rulings on the admissibility of evidence must normally be left to the sound discretion of the trial judge in actions under the Federal Employers’ Liability Act.” Lavender v. Kurn, 327 U.S. 645, 654, 66 S.Ct. 740, 744, 90 L.Ed. 916.
It is argued that the court erred in allowing plaintiff to show the condition of the ties, as not being within the allegations of the complaint. A complaint based on res ipsa loquitur is only required to make a general allegation of negligence, and on such an allegation the plaintiff is entitled to show all the conditions and circumstances surrounding the accident not patently wholly remote. 38 Am.Jur., Negligence, § 262, pp. 954, 955. And, if the original allegation in the complaint here, that the derailment was due to defendant’s negligence in the operation of its train, could be said to have limited the cause of the accident to that field and to have excluded any right of reliance by plaintiff upon the condition of the tracks and roadbed, the leave given during the course of the trial to amend the complaint, to allege that defendant was so negligent in the conduct of its general business of railroading that the train was caused to be derailed, clearly made the complaint broad enough to cover any proximate negligence that may have existed in either the operation of the train or the maintaining of the tracks and roadbed or both.
Evidence was admitted showing that after the accident plaintiff did not go out as a brakeman except when he drew an easy run and that this gave rise to complaints on the part of the other extra-board men. Defendant had objected that the testimony as to the complaints by the other men was immaterial. It would seem to be wholly immaterial, as defendant contends, whether or not the other men complained of plaintiff’s failure to take his regular extra-board turn, but proof of the fact clearly was not of such prejudicing dignity as to amount to reversible error.
A brakeman who had worked with plaintiff after the accident testified that plaintiff appeared to be in great pain when he was out on his run, and the court refused to strike this testimony as conclusionary. It is competent for any witness to testify from observation that a person appeared to be in pain. Isherwood v. H. L. Jenkins Lumber Co., 87 Minn. 388, 92 N.W. 230; Morris v. St. Paul City Ry. Co., 105 Minn. 276, 117 N.W. 500, 502, 17 L.R.A.,N.S., 598; Sturm v. Northwest Mills Co., 114 Minn. 420, 131 N.W. 472, 474. The court similarly was entitled to refuse to strike the testimony of another brakeman, who also had worked with plaintiff after the accident and assisted him in performing some of his duties, that plaintiff “couldn’t get down underneath [the cars] and uncouple the steam, or couple it.” It is within the discretion of the trial court in an action under the Federal Employers’ Liability Act to allow a nonprofessional witness, familiar with the nature of the plaintiff’s work and having observed his performance of his duties after the accident, to testify that he appeared to be unable to perform certain of his tasks. Cf. United States v. Woltman, 61 App.D.C. 52, 57 F.2d 418, 420. And similarly, though the testimony by plaintiff that he would go back to work if he were able was unnecessary and of little probative value, it was within the discretion of the trial court to allow him to so state, in view of defendant’s contention that he had no such injury as he claimed and could have gone back to his brakeman’s job if he had wanted to work.
As heretofore indicated, the court admitted testimony by plaintiff that a “slow-order” was received at Clinton, over objection by defendant that this was not the best evidence. To make reference to a document by its common designation, even though the designation may in some measure be a characterization of the contents, is elementarily not a violation of the best evidence rule. The term “slow order” here would seem to be in the same category as such designations as general warranty deed, notarial commission, discharge papers, etc. It is true that counsel for plaintiff carried the matter further and succeeded in getting the contents of the slow order into the record on another and leading question, “Do you know whether or not in leaving the town of Colo there was an order or direction to run slow for a mile and a half?” But the record shows that counsel for defendant made no objection to the question until after it was answered, and it does not indicate any reason for the tardiness. It is within the discretion of the trial court to allow testimony, which is not the best evidence, to stand, where opportunity to object has existed but is not exercised until after the testimony is given. In addition to this, the contents of the slow order were again brought out on the cross-examination of the engineer, wholly without any objection by the defendant. The contents of a written order regulating the operation of a railroad train, the violation of which is relied on as negligence, ordinarily are within the application of the best evidence rule (Schroble v. Lehigh Valley R. Co., 2 Cir., 62 F.2d 993, 996), but it cannot be said here that the best evidence rule has been breached.
It is contended also that the court erred in granting leave to plaintiff, during the course of his case in chief, to amend his complaint to “allege in substance that defendant so negligently conducted its general business of railroading and was so negligent * * * that the train upon which the plaintiff was employed was caused to be wrecked.” The argument that this amendment was too indefinite requires no answer beyond what has already been said in regard to a res ipsa loquitur situation generally. And to the argument that, if the amendment was sufficiently definite, it nevertheless came too late, we need only observe that there was no such showing of surprise or other tmfairness as would prompt us to declare that there had been an abuse of discretion, and the fact that, after the leave to amend was granted, defendant apparently did not think that there was any reason for it to seek a continuance confirms our view.
Reversal further is sought on the argument of plaintiff’s counsel to the jury. Defendant, however, did not make any objections during the course of the argument or take any exceptions at its close, but it waited until after the court instructed the jury before it made known that it desired to challenge the argument. A party is not entitled as a matter of right to seek a reversal for improper argument to the jury, where he fails to make objections during its course or to take exceptions promptly at its close. One of the reasons for the rule is to enable the trial court to deal with the matter while it is fresh and to permit it to make any formal or informal additions to its instructions, if it deems this necessary.
The principles governing the review of improper arguments were fully stated in London Guarantee & Accident Co. v. Woelfle, 8 Cir., 83 F.2d 325, 344, as follows: “In the future, to secure from- this court, as a matter of right, a reversal of a judgment because of improper remarks of counsel in an argument made to a jury, the [record] must contain all arguments in full and must show, either that adequate objections * * * were taken during the argument complained of, or that such remarks were specifically excepted to at the close of the argument. While failure of a party to take proper exceptions will not deprive this court of its power to grant a new trial in the public interest, we think there is no reason why that power should be exercised in such a case except under the most unusual circumstances.” (Emphasis added.)
We are not disposed to regard the situation here as one of such unusual circumstances as should prompt us to use our discretionary power to set aside the judgment in the public interest because of the argument made to the jury, but an observation or two ought perhaps to be added. A trial court ordinarily should squelch on its own initiative any such appeals to ciass prejudice in a jury argument as the following made by plaintiff’s counsel: “We find a man against whom prior to this time not a word could be said,—just an ordinary laboring maii. Are the laboring men of this country frauds? Are the laboring men of this country cheats? Does it follow, men and women, that every time a man is injured on a train by a'railroad that some strange metamorphosis takes place in that man’s mind and he becomes a fraud and a cheat ?”
There are other statements in the argument which we think probably will want to be reread and considered by counsel before they are repeated on a retrial. We need not, however, discuss the argument further, for there is no reason for us to anticipate that the same things will be said again. And our previous decisions do not leave the bounds of proper argument in a federal court case unknown. See London Guarantee & Accident Co. v. Woelfle, 8 Cir., 83 F.2d 325, 338-344; Chicago & N. W. Ry. Co. v. Kelly, 8 Cir., 74 F.2d 31, 36, 37; Id., 8 Cir., 84 F.2d 569, 573-576; Union Pac. R. Co. v. Field, 8 Cir., 137 F. 14. See also New York Central R. Co. v. Johnson, 279 U.S. 310, 49 S.Ct. 300, 73 L.Ed. 706; Minneapolis, St. P. & S.S.M.R. Co. v. Moquin, 283 U.S. 520, 51 S.Ct. 501, 75 L.Ed. 1243.
Defendant’s final contention is that the judgment should be reversed for ex-cessiveness of the verdict. The verdict was for $16,458. A Circuit Court of Appeals will not review the verdict in a tort action for excessiveness or inadequacy of its amount. Wabash Railway Co. v. McDaniels, 107 U.S. 454, 456, 2 S.Ct. 932, 27 L.Ed. 605; Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 485, 53 S.Ct. 252, 77 L.Ed. 439; Chicago & N. W. Ry. Co. v. Kelly, 8 Cir., 74 F.2d 31, 37.
The judgment is reversed and the cause remanded for a new trial, because of the refusal to give defendant’s requested instruction on the theory of its defense.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_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.
UNITED STATES of America, Plaintiff-Appellee, v. Ben G. MILTON, d/b/a Service Check Company, Defendant-Appellant.
No. 17197.
United States Court of Appeals Sixth Circuit.
Decided Sept. 15, 1967.
Adrian B. Fink, Jr., Cleveland, Ohio, for appellant.
Joseph Kovner, Tax Division, Dept, of Justice, Washington, D. C., for appellee. Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson, Joseph Kovner, Lawrence B. Silver, Attys., Dept, of Justice, Washington, D. C., on the brief. Merle M. McCurdy, U. S. Atty., Bernard J. Stuplinski, Asst. U. S. Atty., Cleveland, Ohio, of counsel.
Before McCREE and COMBS, Circuit Judges, and CECIL, Senior Circuit Judge.
PER CURIAM.
This is an appeal from a decision of the District Court determining that the United States, as holder of money orders issued by appellant in the amount of $7300.00, was entitled to recover this amount from appellant. The opinion of the District Court, reported at 253 F. Supp. 89, recites the facts as stipulated by the parties and therefore we do not repeat them here.
Appellant claims that the United States failed to follow Ohio procedures in perfecting its lien on the money orders and unauthorizedly named itself payee, and therefore cannot be regarded as a holder of the instruments. Further, appellant contends that he properly stopped payment of the money orders. Finally, he contends that the return of $7300.00 to Birns constituted payment of the money orders, and therefore serves as a defense to the claim of the United States.
For the reasons stated in the District Court’s conclusions of law, we find that the United States was properly in possession of the money orders and that it had authority to name the payee. Burke v. Jenkins, 128 Ohio St. 86, 190 N.E. 238 (1934) and Hartington National Bank v. Breslin, 88 Neb. 47, 128 N.W. 659, 31 L.R.A.,N.S., 130 (1910), the two cases cited by appellant in support of the proposition that a negotiable instrument can be enforced against the maker or drawer thereof only if blanks are filled in strict accordance with the authority given, are distinguishable from the instant ease. In both those cases, the maker of the instrument had intended that a specific payee be named. In this case, appellant did not require that the name of any particular person be filled in as payee. Since the United States was in possession of the money orders and was named therein as payee, it was a holder under the Ohio law then applicable. O.R.C. § 1301.01 (T).
The District Court held that appellant had no right to stop payment on the money orders, and that his attempt to stop payment could therefore not defeat the claim of the United States. As appellant points out, it is the general rule that a cashier’s check or money order drawn by a bank upon its own funds cannot be stopped, but there is a split of authority as to whether payment on a draft drawn by one bank upon another can be stopped. 107 Á.L.R. 1463. The money orders in the instant case were drawn by appellant upon the First National Bank of Akron, and appellant argues that payment could therefore be stopped. It must be recognized, however, that the question of whether a drawer can stop a drawee from paying an instrument is distinct from the question of whether the drawer can avoid his own obligation under the instrument. See International Firearms Co., Ltd. v. Kingston Trust Co., 6 N.Y.2d 406, 189 N.Y.S.2d 911, 160 N.E.2d 656 (1959); 107 A.L.R. 1463, 1467. Regardless of appellant’s power to stop the First National Bank of Akron from paying the United States, he was obligated to make such payment unless he had available a defense good against a holder. See Cross v. Exchange Bank Co., 110 Ohio App. 219, 168 N.E.2d 910 (1958); O.R.C. § 1301.64.
Appellant suggests that he does have a defense against the claim of the United States, namely that in returning $7300 to Birns he paid the money orders and thereby discharged his obligation. Birns, however, was not the holder of the money orders at the time this payment was made, and the payment of this money could therefore not discharge appellant’s obligation. O.R.C. §§ 1301.34, 1301.86.
The judgment of the District Court is affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_r_stid
|
21
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is a respondent.
Daniel KIM and Richard Bright, Appellants, v. COPPIN STATE COLLEGE; Calvin W. Burnett, individually and as President of Coppin State College; J. Carson Dowell, Chairman; H. Gray Reeves; Edgar F. Berman; George M. Brooks; Charles H. Foelber; Victor Frenkil; A. Harris Grossman; Joyce R. Phillips; James A. Sensenbaugh; George T. Stansbury; The Honorable J. Millard Tawes, individually and constituting the Board of Trustees of the State Universities and Colleges of Maryland, Appellees.
No. 79-1386.
United States Court of Appeals, Fourth Circuit.
Argued May 7, 1981.
Decided Oct. 26, 1981.
Glen Marcus Fallin, Baltimore, Md., for appellants.
William A. Kahn, Asst. Atty. Gen., Baltimore, Md. (Stephen H. Sachs, Atty. Gen. of Maryland, Baltimore, Md., on brief), for ap-pellees.
Before WINTER, Chief Judge, and RUSSELL and WIDENER, Circuit Judges.
WINTER, Chief Judge:
Plaintiffs, two members of the faculty of Coppin State College in Baltimore, appeal from the district court’s directed verdict in favor of defendants issued after the jury failed to reach a determination of their claims of discrimination in compensation, promotion and other working conditions under 42 U.S.C. §§ 1981 and 1983 (1976) and from the district court’s findings that defendants did not violate Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1976). We affirm the judgment of the district court on the issues of promotion and other working conditions, but vacate the judgment on the issue of alleged discrimination in the compensation of plaintiffs and remand the case for a new trial.
I.
Coppin State College in Baltimore, Maryland, is a college predominantly attended by blacks, and its administration is dominated by blacks, although there are a substantial number of whites on the faculty. The defendant college president, Calvin W. Burnett, Ph.D., is black. Plaintiff, Daniel Kim, Ph.D., a full professor at Coppin State since 1970, was born in Korea and is of Asian extraction. Plaintiff, Richard Bright, Ph.D., an associate professor at the school since 1969, is white.
Plaintiffs originally filed charges with the federal Equal Employment Opportunity Commission on June 26, 1974, apparently alleging discrimination in their working conditions. The Commission dismissed the charges and issued a right to sue letter. Plaintiffs thereupon sued Coppin State, Burnett and the Board of Trustees of the State Universities and Colleges of Maryland on February 4, 1977, alleging discrimination in promotion, compensation and other working conditions in violation of the Reconstruction Civil Rights Acts, 42 U.S.C. §§ 1981 and 1983 (1976), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1976). Plaintiffs do not contest the district court’s dismissal of the Maryland’s university trustees from the case or its dismissal of the §§ 1981 and 1983 claims against the college.
Professors Kim and Bright sought to prove at trial, among other things, that the college administration impermissibly discriminated against them because of their race with respect to telephone service, secretarial assistance, office space, reimbursement for travel expenses, the preparation and administration of a National Science Foundation grant, sabbatical leave, promotion and compensation. The jury failed to reach agreement on a verdict, and the district court declared a mistrial. Defendants moved for a directed verdict, which the district court granted, incorporating its findings as the trier of fact of the claims under Title VII. It determined that plaintiffs had failed to substantiate many of their allegations, that some were barred by limitations, that they had failed to rebut the legitimate nondiscriminatory reasons offered by defendants to justify their actions as required by Title VII, and that they had failed to establish the discriminatory purpose of defendants’ actions as required by the Reconstruction Civil Rights Acts. Plaintiffs have circumscribed their contentions on this appeal. They assert that the district court applied an improper legal standard in granting the directed verdict, that substantial issues of material facts remained in controversy with respect to compensation, promotion and sabbatical leave, that the district court’s findings under Title VII were clearly erroneous, that it improperly excluded evidence, and that they are entitled to attorneys’ fees as prevailing parties in the litigation.
II.
At the outset, the different legal standards applicable to this case should be noted. Under plaintiffs’ Reconstruction Civil Rights Acts claims, the jury served as the trier of fact, and, in order to prevail, plaintiffs had the burden of proving Dr. Burnett’s discriminatory purpose in taking employment actions adverse to them. Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). Under their Title VII claims, the district court served as the trier of fact, and, in order to prevail, plaintiffs had the burden of proving employment discrimination. Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and its progeny, the college could dispel the inference of discrimination raised by plaintiffs’ showing of disparate treatment by demonstrating legitimate, nondiscriminatory reasons for its actions, which plaintiffs in turn could rebut by exposing such reasons as mere pretexts.
The Title VII findings of the district court can only be reversed on appeal if they are clearly erroneous. That would be also true of a jury verdict on the Reconstruction Civil Rights Acts claims. In this case, however, the district court directed a verdict for defendants after the jury failed to agree on a verdict.
Plaintiffs argue that a directed verdict is appropriate only under circumstances identical to that under which summary judgment is appropriate, so that it may not be granted unless no genuine issue of material fact remains after resolving all conflicting inferences in the evidence in their favor. The legal standards for directed verdicts and summary judgment are indeed similar, but they are sufficiently distinct in a way that bears on this case. In considering a motion for summary judgment, the district court must give the benefit of the doubt to the party who asserts he can prove a dubious proposition at trial. In considering a motion for a directed verdict, in contrast, the district court has had the benefit of seeing what the parties alleged they could prove prior to trial tested in the crucible of open court. Accordingly, the district court is entitled to grant a directed verdict even though some evidence supports the opposite position so long as “there are no controverted issues of fact upon which reasonable minds could differ.” Proctor v. Colonial Refrigerated Transp., Inc., 494 F.2d 89, 93 (4 Cir. 1974); Pogue v. Retail Credit Co., 453 F.2d 336, 338 (4 Cir. 1972), cert. denied, 409 U.S. 1109, 93 S.Ct. 910, 34 L.Ed.2d 689 (1973); Wachovia Bank & Trust Co. v. United States, 288 F.2d 750, 757 (4 Cir. 1961); see also Krotkoff v. Goucher College, 585 F.2d 675 (4 Cir. 1978); Walker Mfg. Co. v. Dickerson, Inc., 560 F.2d 1184, 1188 (4 Cir. 1977). Consequently, it was appropriate for the district court in this case to consider the evidence presented without straining to find inferences supporting the plaintiffs’ position in every shred produced.
III.
On appeal plaintiffs have limited their allegations of discrimination to the issues of sabbatical leave, promotions and compensation. Plaintiffs failed to introduce any evidence that Professor Bright ever applied for sabbatical leave, much less suffered discrimination from its denial. Professor Kim applied for two sabbatical leaves during his tenure at Coppin State. He was granted such leave in 1966-67, and he was denied leave in 1976-77. He testified that he was entitled to the leave, but was unable to demonstrate that anyone else received leave that year, and if so, that the denial of leave to him was discriminatory. The college maintained at trial that it did not grant any sabbatical leaves in 1976-77 because it needed its full complement of staff during an accreditation review conducted that year.
On appeal plaintiffs point to an exhibit introduced by defendants that indicates that Professor Leroy Fitzgerald, a black, received an “HEW fellowship” in 1977. The references to this fellowship in the exhibit are cursory; it is difficult to draw even an inference that Professor Fitzgerald was excused from his teaching responsibilities during 1976-77 as a result. Indeed, Professor Kim’s own testimony distinguished the various forms of leave available, including sabbatical leave, which entailed compensation by the college at one-half salary during the period, and a “study leave” “funded by the Title III program.” Although plaintiffs failed to develop this issue at trial, it is apparent that the Title III leave referred to by Professor Kim stems from Title III of the Higher Education Act of 1965, 20 U.S.C. § 1051 et seq. (1976), under which the former Department of Health, Education and Welfare (HEW) provided fellowships to faculty members at institutions like Coppin State for both teaching and research. 20 U.S.C. § 1054.
We think this evidence amply supports a finding of no discrimination under Title VII of the Civil Rights Act of 1964 and a directed verdict on the §§ 1981 and 1983 claims. Plaintiffs simply failed to adduce sufficient evidence that discrimination played any role in the denial of Professor Kim’s sabbatical leave in 1976-77. Even assuming Professor Fitzgerald received leave in that year, the leave taken was not sabbatical leave, but rather leave fully funded by the federal government. In addition, it is by no means clear on this record that Professor Fitzgerald’s “HEW fellowship” interrupted his teaching duties, because the HEW program provides fellowships for teaching as well as research. In any event, Professor Fitzgerald’s leave could not represent improper discriminatory preference by the college for a black over an Asian because HEW, not the college, selected Professor Fitzgerald for the fellowship and paid for it.
On the issue of promotions, Professor Kim had already received tenure prior to the period in question. Professor Bright, however, applied several times for promotion to full professor during the period but was denied promotion each time. He concedes that no one was promoted the first year he was eligible, 1974-75. In 1975-76, for some reason his application was not considered. It is therefore uncontroverted that President Burnett did not personally review his application that year, and for purposes of Title VII the record supports the district court’s finding that the failure to consider the application was not discriminatory. The record similarly supports the district court’s findings of no discrimination for the years 1976-77 and 1977-78, when Professor Bright’s application did receive consideration but was nonetheless disapproved prior to review by President Burnett.
The only remaining question concerns Professor Bright’s application for promotion in 1978-79, which President Burnett did personally review. In that year, it is uncon-troverted that the college could promote only three individuals. President Burnett appointed Dr. Nancy Wilkey to one of the positions because of a need for a maternal care specialist in order to maintain the accreditation of Coppin State’s nursing school, a need plaintiffs do not contest. It is also uncontroverted that President Burnett selected the number one rated candidates from the Arts and Sciences and Education groups to fill the other two positions.
Professor Edward Sommerfeldt was rated number one in Arts and Sciences over Professor Bright, who received the number two rating. Professor Sommerfeldt had more teaching experience than Professor Bright, a more extensive publication record, and was qualified in the fields of physics and computer science, fields in which plaintiffs do not contest the college’s need. Sommerfeldt, moreover, is white. A finding of no discrimination in the college’s preference for Sommerfeldt over Bright is manifestly correct.
Plaintiffs nonetheless argue that Professor Bright should have been promoted instead of Professor Leroy Fitzgerald, despite the fact that Professor Fitzgerald was evaluated independently of Professor Bright in the Education group, which rated Fitzgerald number one. Professor Fitzgerald also had a more extensive publication record than Professor Bright, had served as Dean of Graduate Studies, a much more significant administrative position than any held by Bright, and most importantly, had demonstrated a singular talent for attracting federal, state and other grants to the college. We think there is no genuine issue of material fact that Professor Fitzgerald was at least as qualified if not more qualified than Professor Bright was for purposes of promotion to full professor. The district court found that the only evidence in the case was that Professor Fitzgerald was promoted over Professor Bright solely on the grounds of merit. We agree that the record points inescapably to this conclusion. Thus, the record fully supports the district court’s finding of no discrimination under Title VII in the college’s promotion policy, and its decision that no reasonable jury could find discrimination in violation of §§ 1981 and 1983.
IV.
Plaintiffs advance two major contentions with respect to the alleged discrimination practiced by the college in establishing their compensation. First, they assert that they were unjustifiably paid among the lowest salaries at the college, particularly in view of their credentials, since the time Professor Bright joined the faculty in 1969 and Kim became full professor in 1970. The district court ruled that the “continuing impact” of this alleged discrimination did not defeat the bar of the statute of limitations for college actions taken prior to 1974, citing United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977). Evans, however, held that a United flight attendant was not entitled to retroactive seniority for a past act of discrimination when she had departed United for an interval. This court, in contrast, has consistently distinguished Evans when the discriminatory employment practice has continuously affected the complaining employees and is continuing. E. g., Jenkins v. Home Ins. Co., 635 F.2d 310, 311-12 (4 Cir. 1980) (compensation); Patterson v. American Tobacco Co., 586 F.2d 300, 304-05 (4 Cir. 1978), after remand, 634 F.2d 744, 750-51 (4 Cir. 1980), cert. granted, - U.S. -, 101 S.Ct. 3078, 69 L.Ed.2d 951 (1981). Plaintiffs here have not conclusively proven continuing disparity in their salaries vis-a-vis the black faculty at the college, but they have produced sufficient evidence to raise a genuine issue for a jury’s ultimate determination under §§ 1981 and 1983 and for reconsideration of the issue by the district court under Title VII.
The district court considered plaintiffs’ contention that they were singled out in the denial of an equalization pay increase granted to most Coppin State professors in 1974. Professors Kim and Bright each received their cost-of-living salary increase that year, but did not receive, along with one black professor, an additional increase of approximately equal size distributed out of surplus funds. The district court found that the college had demonstrated legitimate, nondiscriminatory reasons for denying the increase that were not mere pretexts. The court relied on evidence that suggested that plaintiffs had been uncooperative in the college’s efforts to secure a National Science Foundation grant, that they had participated in and perhaps encouraged a student boycott at the school and that they were generally uncooperative with the college administration.
We think that a finding of no discrimination on this issue pursuant to Title VII was not clearly erroneous. As the trier of fact, the district court was entitled to conclude that plaintiffs’ general lack of cooperation with the college administration during this period impelled President Burnett to deny the equalization increases without the taint of discriminatory motive. Although the district court improperly considered evidence of Professor Kim’s administrative failings that actually occurred in 1977, and was thus irrelevant to the 1974 decision, the district court was entitled to credit defendants’ account of the dispute between Kim and Bright and the college administration over the preparation and administration of a proposed National Science Foundation grant in 1972-73. In addition, the district court was entitled to credit President Burnett’s opinion that plaintiffs had participated in the student boycott; this rationale for his action does not raise any issue of racial discrimination. This resolution of plaintiffs’ statutory claims pursuant to Title VII does not, however, necessarily apply to their constitutional claims under §§ 1981 and 1983.
The district court conceded that the issue of the National Science Foundation grant was “hotly contested.” Plaintiffs’ basic contention was that the college administration assigned the preparation and administration of the grant to others for racial reasons. The jury was entitled to decide, so they argue, whether President Burnett was racially biased or whether plaintiffs improperly failed to cooperate with the administration on the grant, thus endangering it and justifying their replacement and the subsequent denial of the pay increase. This material fact still very much at issue, coupled with the improper consideration of evidence concerning events in 1977, suffices to render the directed verdict on this compensation issue improper.
The denial of the pay increase, moreover, raises an additional constitutional claim in addition to" that of racial discrimination. President Burnett testified that he denied the pay increase in part because of plaintiffs’ participation in a student boycott that occurred at the college in 1974. If we assume that the expression involved was constitutionally protected by the first amendment, there can be no doubt that the expression was a “substantial or motivating factor” in Burnett’s adverse employment action, see Mt. Healthy City Board of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), and it is likely that he would not have denied the increase “but for” the protected expression by plaintiffs, Givhan v. Western Line Consol. School Dist., 439 U.S. 410, 417, 99 S.Ct. 693, 697, 58 L.Ed.2d 619 (1979). Plaintiffs would accordingly be entitled to relief for the college’s unconstitutional infringement of their rights to free expression through the punishment meted out under the doctrine enunciated by the Supreme Court in these cases.
The district court, however, summarily dismissed the idea that Professors Kim and Bright engaged in constitutionally protected expression. It stated: “Needless to say, joining a picket line and participating in a boycott is highly disruptive to the educational process,” citing Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Such disruption justified President Burnett’s denial of the pay increase in its view, and apparently precluded consideration of their activity by the jury.
We have not decided the issue of whether the expression of a public employee is constitutionally protected should be determined by the court or by the jury. See Cooper v. Johnson, 590 F.2d 559 (4 Cir. 1979). Other courts, however, have held that the ultimate question of whether expression is protected is for the court, recognizing, however, the substantial role of the jury in finding facts necessary to strike the balance mandated in Pickering. Van Ooteghem v. Gray, 628 F.2d 488 (5 Cir. 1980), reh’g granted, 640 F.2d 12 (5 Cir.), cert. dismissed, 451 U.S. 935, 101 S.Ct. 2031, 68 L.Ed.2d 334 (1981); accord, Schneider v. City of Atlanta, 628 F.2d 915 (5 Cir. 1980); see Tygrett v. Barry, 627 F.2d 1279, 1287 (D.C.Cir.1980); Hickman v. Valley Board of Educ., 619 F.2d 606, 609-10 (6 Cir. 1980). We think that the extent of protection afforded by the first amendment to expression is ultimately a question of law for the courts, but that the jury’s function is to find the underlying facts to which the legal standard is ultimately applied. This division of responsibility, in our view, stems from the reasoning of Pickering.
In Pickering, the Court recognized both the substantial interest of government in regulating the conduct of its employees and the rights of public employees to comment on matters of public interest, rights guaranteed by the first amendment and not forfeited by the mere fact of their government employment. In consequence, it stated, “[t]he problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” 391 U.S. at 568, 88 S.Ct. at 1734-35. The Court recognized legitimate government interests in maintaining discipline by immediate superiors, harmony among coworkers, personal loyalty and confidence necessary to close working relationships and preventing disruption of government operations. Id. at 569-71, 88 S.Ct. at 1735-36. On the other hand, the Court recognized the strong interest of the employee and indeed the public in “having free and unhindered debate on matters of public importance.” Id. at 573, 88 S.Ct. at 1737.
Moreover, in analyzing expression by teachers, the Court has frequently reiterated the country’s deep commitment to safeguarding academic freedom, “which is of transcendent value to us all and not merely to the teachers concerned.” Keyishian v. Board of Regents, 385 U.S. 589, 603, 87 S.Ct. 675, 683, 17 L.Ed.2d 629 (1967). As the Court stated in Sweezy v. New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957):
The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.
354 U.S. at 250, 77 S.Ct. at 1211-12 (opinion of Warren, C.J.). Not only is academic freedom fundamental to freedom of expression under the first amendment, but freedom of expression is likewise fundamental to academic freedom.
First amendment values should find their purest realization in our schools and universities. The creators of the American nation were profoundly influenced by Locke and the British empiricists, who propounded the philosophical principles of knowledge based on demonstration and measured reflection, not blind faith, a knowledge secured by probability, not certainty, and the essential check of doubt on all propositions. See, e. g., J. Locke, Essay Concerning Human Understanding (1690). Scepticism goads the mind to further inquiry, and through this relentless process western civilization has advanced. We celebrate Galileo, not only for his discoveries, but for his courage in the face of persecution for his intellectual beliefs. Such old religious shackles that imprisoned scholarship impelled many of the first settlers of this land to leave their homes for a new life of freedom here. It was in the nature of our disparate colonial development that the “free trade in ideas” began to flourish, culminating in the Revolution that would bind thirteen minor states with the common fiber of dedication to the principle of the sovereignty of each individual.
We rely on our educational institutions to develop that individual sovereignty, and it can only be attained by encouraging the individual to think independently. Independent thinking, in turn, can only be developed through constant questioning, the expression of new, untried and heterodox beliefs and the willingness to tolerate experimentation — in sum, the traditions upon which the first amendment rests. It follows that our schools, particularly our universities, must serve as great bazaars of ideas where the heavy hand of regulation has little place. Like other bazaars, they may seem rude, cacophonous, even distasteful at times; but they are necessary predicates to the more orderly market of ideas in our public life. See Wieman v. Updegraff, 344 U.S. 183, 194, 73 S.Ct. 215, 220, 97 L.Ed. 216 (1952) (Frankfurter, J., concurring).
It is against this background that the Supreme Court struck the balance in Pickering. The Court rejected the school board’s statements that the teacher’s expression was “detrimental to the efficient operation and administration of the schools of the district,” and was “disruptive of faculty discipline,” tending to foster “controversy, conflict and dissension” among faculty, school officials and citizens. 391 U.S. at 564, 567, 88 S.Ct. at 1732, 1734. The Court found the teacher’s expression protected by the first amendment, even if defamatory, because “a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.” Id. at 574-75, 88 S.Ct. at 1737-38. The Court thus designed its approach in order to protect freedom of expression vigorously, balanced by an objective consideration of the state’s interest in efficient public service. The approach protects the employee from the quite subjective ire of superiors over expression they do not approve of.
It is fitting, therefore, for the jury to weigh the factors of disruption of operations, disharmony among coworkers or breach of a confidential working relationship enumerated by the Court in Pickering. These are matters of fact for which the jury is uniquely equipped to filter out self-serving claims and apply its judgment based on individual experience and an assessment of the credibility of the disputants. E. g., McGill v. Board of Educ. of Pekin Elem. School, 602 F.2d 774, 776-77 (7 Cir. 1979).
On the other hand, the court must ultimately determine whether the first amendment protects the expression involved. See Brown v. Bullard Independent School Disk, 640 F.2d 651, 653 (5 Cir. 1981); Williams v. Board of Regents, 629 F.2d 993, 1002-04 (5 Cir. 1980), cert. denied, 452 U.S. 926, 101 S.Ct. 3063, 69 L.Ed.2d 428 (1981); Columbus Educ. Ass’n v. Columbus City School Disk, 623 F.2d 1155, 1159-60 (6 Cir. 1980). The courts are entrusted with this part of the Pickering balance not only because of the importance of legal questions in reaching the determination but because of the traditional role of the courts in safeguarding expression, however unpopular, from the antagonism of majority views.
In applying the Pickering analysis to this case, we note at the outset that the activity engaged in by Professors Kim and Bright is within the ambit of the first amendment. Professor Bright spoke to students about their boycott and allegedly offered them counsel. It is nowhere alleged that he incited them to boycott or encouraged them to engage in disorderly conduct. It is likewise nowhere alleged that any criticism expressed was directed personally at coworkers or college administrators rather than at problems of the institution generally. Compare Bickel v. Burkhart, 632 F.2d 1251, 1256 — 58 (5 Cir. 1980) (institutional criticism) with Smalley v. Eatonville, 640 F.2d 765, 768 (5 Cir. 1981) (personal charges against mayor expressed by his finance director). It was alleged that Professor Kim simply joined a student picket line. The first amendment clearly protects picketing, subject to reasonable time, place and manner restrictions; the message of the expressive conduct involved, however, cannot be regulated. Police Dep’t v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). Expressive conduct is protected on school grounds so long as it does not materially and substantially interfere with school activities. Tinker v. Des Moines Community School Disk, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Thus quiet and peaceful picketing on school grounds is generally protected by the first amendment, but noisy demonstrations may be prohibited. Grayned v. City of Rockford, 408 U.S. 104, 118-20, 92 S.Ct. 2294, 2304-05, 33 L.Ed.2d 222 (1972).
The district court in this case assumed that the picketing was disruptive and thus not protected expression. The student boycott in its entirety was certainly disruptive of school activities. Under Pickering, however, the disruption of operations and disharmony in the workplace allegedly caused by the employee’s expression must be assessed by the jury. A substantial issue of material fact remains in this case as to whether the involvement of Professors Kim and Bright in the boycott actually resulted in disruption of school activities. An objective evaluation of the actual, harm caused, not perceived or potential harms, is required. Against whatever disruption the jury finds the court must balance the importance of the message Professors Kim and Bright sought to express. Pickering’s public criticisms of the school board no doubt caused some disruption, but the Court held that the public interest in his message and his interest under the first amendment were overriding concerns. As the Court of Appeals for the Fifth Circuit recently noted, “We do not read [Pickering-type cases] as establishing disruption and disharmony as a per se defense to dismissal no matter how egregious the complained of conduct of the superior might have been.” Williams v. Board of Regents, 629 F.2d at 1004. See Tygrett v. Barry, 627 F.2d at 1286-87; Columbus Educ. Ass’n v. Columbus City School Disk, 623 F.2d at 1159-60.
We therefore think the directed verdict for defendants on this issue was inappropriate. Our conclusion is supported by the decisions in other circuits. The Court of Appeals for the Fifth Circuit reversed a district court’s judgment notwithstanding the verdict predicated on the material and substantial disruption of the university’s program caused by a professor’s criticism of the program expressed to state officials. The court of appeals held that no actual harm had been demonstrated and reinstated the jury verdict in the professor’s favor. D’Andrea v. Adams, 626 F.2d 469, 474-76 (5 Cir. 1980). The Court of Appeals for the Sixth Circuit has ruled that a district court improperly removed the issue of whether the university administration had denied tenure to a professor in retaliation for the exercise of his first amendment rights. Hildebrand v. Board of Trustees, 607 F.2d 705 (6 Cir. 1979). In addition, the overwhelming weight of authority holds summary judgment inappropriate in Pickering cases. We therefore think that a jury should decide whether plaintiffs’ involvement in the student boycott materially impaired the operation of the college or their working relationships there, and if not, whether President Burnett would not have withheld their equalization pay increases but for the exercise of their first amendment rights.
V.
Plaintiffs’ other contentions on this appeal lack merit. They object to the district court’s refusal to permit the introduction into evidence of a community newspaper, Good News, in which the college had placed some advertisements. The newspaper in question contained highly inflammatory racial slurs on Baltimore’s Korean community. The probative value of this evidence was questionable at best, because of the highly tenuous link between the college and the paper’s editorial policy. The unfairly prejudicial nature of this evidence, on the other hand, is manifest. Its introduction could well have confused the issues in the case and misled the jury. The district court therefore properly excluded it under Fed.R.Evid. 403.
Plaintiffs also argue that they substantially prevailed in this litigation, entitling them to attorneys’ fees under 42 U.S.C. § 1988 (1976), because the college subsequently granted them pay increases. They do not even allege, however, that this increase was extraordinary or that it rendered their total compensation comparable to that of their black colleagues. In view of the sweeping dismissal of all their claims by the district court, an award of attorneys’ fees under the circumstances would be clearly inappropriate. Smith v. University of North Carolina, 632 F.2d 316, 352-53 (4 Cir. 1980).
We think the district court was largely correct in dismissing the claims of discrimination asserted in this case. Substantial issues of material facts remain, however, on the alleged discrimination in compensation of plaintiffs, so we must vacate the judgment with respect to that issue and remand them for a new trial.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
. Plaintiffs failed to introduce into evidence in the district court the charges they filed with the EEOC.
. The district court ruled that President Burnett’s actions alone could be considered pursuant to §§ 1981 and 1983. Plaintiffs have conceded that the college could not be sued under the statutes. The district court correctly held that the actions of President Burnett’s subordinates cannot be attributed to him under a theory of respondeat superior. Monell v. Department of Social Services, 436 U.S. 658, 691-95, 98 S.Ct. 2018, 2036-38, 56 L.Ed.2d
Question: What is the state of the first listed state or local government agency that is a respondent?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
sc_casedisposition
|
E
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
SOUTHWESTERN SUGAR & MOLASSES CO., INC., v. RIVER TERMINALS CORP.
No. 155.
Argued March 3, 1959.
Decided June 22, 1959.
Amos L. Ponder,-Jr. argued the cause for petitioner. With him on the brief was Clem H. Sehrt.
Selim B. Lemle argued the cause for respondent, him on the brief was Carl G. Stearns.
Mr. Justice Harlan
delivered the opinion of the Court.
On September 24, 1944, the barge Peter B, carrying a cargo of molasses, sank in 30 feet of water at dockside in Texas City, Texas. Although the barge was eventually raised, the cargo, allegedly valued at some $26,000, was largely or totally lost.
Petitioner, Southwestern Sugar & Molasses Co., charterer of the barge and owner of the cargo, filed a libel against respondent, River Terminals Corporation, a water carrier certificated under Part III of the Interstate Commerce Act, 49 U. S. C. § 901 et seq., seeking recovery of damages for the loss of cargo and for-expenses occasioned in the raising and repair of the barge, which had been towed by respondent from Reserve, Louisiana, to Texas City and there berthed. The District Court first tried ■the issue of liability, separating the question of damages for subsequent determination, and held that the barge had sunk and the cargo had been lost as a result of respondent’s negligence in the navigation or management of the tow and that respondent was liable for all damage to the cargo and for the cost of raising and repairing the barge. 153 F. Supp. 923.
Respondent, appealed from the interlocutory decree adjudging liability, 28 U. S. C. § 1292 (3), urging that the trial court had erred in holding (1) that petitioner had an interest in the Peter B sufficient to entitle it to maintain a libel for damage thereto, (2) that thd" sinking of the barge and loss of cargo were due to respondent’s negligence, (3) that § 3 of the Harter Act did not establish respondent’s freedom from liability as a matter of law, and (4) that certain provisions in tariffs filed by respondent with thé Interstate Commerce Commission, which purported to release respondent from liability for its negligence, .and which were assumed by the District Court to have been applicable to the transportation here involved, were invalid as a piatter of law and constituted no defense to the libel.
The Court of Appeals did not consider any of the first three' claims-of error, although if sustained they would wholly have disposed of 'the case. Instead, the court directed its attention to respondent’s contention that the exculpatory clause in respondent’s tariff, incorporated by reference in the bill of lading issued in connection with the transportation, must be given effect. The court concluded that because the clause was embodied in a tariff filed with' the I. C. C. it could not in the first instance declare it invalid, but was bound to give it effect unless and until the Commission, after appropriate investigation, reached a contrary conclusion. Accordingly, it reversed the judgment of the District Court “in order to afford . . . [petitioner] reasonable opportunity to seek administrative action before the Commission to test the validity of the challenged provision, otherwise to give full effect to the exculpatory clause . . . .” 253 F. 2d 922.
Petitioner sought certiorari, contending that the refusal of the. Court of Appeals to strike down the exculpatory clause as a matter of law was contrary to the decision of this Court in Bisso v. Inland Waterways Corporation, 349 U. S. 85, where it was. held that a clause in a private contract of towage purporting altogether to exculpate the tug-from liability'for its own negligence was void as against public policy. We granted the writ. 358 U. S. 811.
At the outset, we hold that the Court of Appeals erred in ordering what was in substance a referral of the issue of the validity of the exculpatory clause to-the Commission without first passing on the other claims of error tendered by respondent below. As we have noted, those other claims, if accepted, would have required a reversal of the judgment of the District Court and the entry of judgment for respondent. The case had been fully argued before the Court of Appeals, and those claims were plainly ripe for decision.
Under these circumstances, we think that sound and expeditious judicial administration should have led the Court of Appeals not to leave these issues undecided while a course was charted requiring the institution and litigation of an altogether separate proceeding before the I. C. C. — a proceeding which might well assume substantial dimensions — to test the sufficiency of only one of respondent’s several defenses. If in consequence of findings made by the Commission in such a proceeding it should b_e determined that the exculpatory clause cannot be given effect,' the Court of Appeals would theri have to decide the very questions which it can now decide without the necessity for any collateral proceeding. Conversely, a present ruling on those other questions might entirely obviate the necessity for proceedings in the Commission which would further delay the final disposition of this already protracted litigation. We conclude, therefore, that the Court of Appeals should have passed upon those issues as to which the expert assistance of the I. C. C. is concededly not appropriate, before invoking the processes of the Commission.
Despite the fact that disposition of respondent’s other claims by the Court of Appeals may ultimately render moot the question of the validity of the exculpatory clause as a defense in the circumstances of this case, we deem it appropriate now to review the holding of that court that the exculpatory clause was not void as a matter of law. Were the Court of Appeals on remand to decide the other questions tendered by respondent adversely to it, it would otherwise then be necessary for petitioner once more to seek reviéw here on this very question. The issue is one of importance in the developinent of the law mari-. time, as to which we have large responsibilities, constitutionally Conferred; it is squarely presented on the record before us;' and the exigencies of this litigation clearly call for its resolution at this stage. Accordingly, to this question we now turn.
In Bisso this Court held that a towboat owner might not, as a defense to a suit alleging loss due to negligent towage, rely on a contractual provision which purported to exempt the towboat altogether from liability for negligent injury to its tow. There a barge, while being towed on the. Mississippi. River by a steam towboat under a private towage contract, was caused by the negligence of those operating the towboat to collide with a' bridge pier and sink. The Court reviewed prior cases in the field, and concluded that the conflict of decision found in those cases should be resolved by declaring private' contractual provisions of the kind there involved altogether void as contrary to “public policy.” The Court relied on “two main reasons” for its conclusion, (1) that such a rule was necessary “to- discourage negligence,” and (2) that the owner of the tow required protection from “others who have power to drive hard bargains.” As was pointed out explicitly in a concurring opinion, the Court’s decision was perforce ■ reached without consideration of particularized economic and other factors relevant to the' organization and operation of the tugboat industry.
Petitioner argues that Bisso is dispositive of this case, on the theory that an inherently illegal condition gains nothing from being filed as part of a tariff with the Commission.' We think that this reasoning begs the true question here presented, which is whether considerations of pnoiic policy which may be called upon by courts to strike down private contractual arrangements between tug and tow are necessarily applicable to provisions of a tariff filed with, and subject to the pervasive regulatory authority of, an expert administrative body. In Bisso the clause struck down was part of a contract over the terms of which the I. C. C., the body primarily charged by Congress with the regulation of. the terms, and conditions upon which water carriers subject to its jurisdiction shall offer their services, had no control. In the present case the courts below have assumed, and petitioner does not challenge, the applicability to the transportation which resulted in loss to petitioner of a duly filed tariff containing this exculpatory clause.
In these circumstances we would be moving too fast were we automatically to extend the rule of Bisso to govern the present case. For all we know, it may be that the rate specified in the relevant tariff is computed on the understanding that the exculpatory clause shall apply to relieve the towboat owner of the expense of insuring itself against liability for damage caused tows by the negligence of its servants, and is a reasonable rate so computed. If that were so, it might be hard to say that public policy demands that the tow should at once have the benefit of a rate so computed and be able to repudiate the correlative obligation of procuring its own insurance with knowledge that the towboat may be required to respond in damages for any injury caused by its negligence despite agreement to the contrary. Eor so long as the towboat’s rates are at all times subject to regulatory control, prospectively and by way of reparation, the possibility of an overreaching whereby the towboat is at once able to exact high rates-, and deny the liabilities which transportation at such rates might be found fairly to impose upon it can be aborted by the action of the I. C. C. The rule of Bisso, however applicable where the towboat owner has “the power to drive hard bargains,” may well call for modification when that power is effectively controlled by a pervasiye regulatory scheme.
Further, it may be noted that the clause relied on in this case is by its terms restricted to the situation where shipments are transported in barges furnished by others than the towboat owner. Whatever may be the considerations involved in forbidding a towboat to contract for exemption from liability for negligence in other circumstances, it may be that different considerations apply when the towboat moves barges which are delivered to it loaded, so that it never has an opportunity adequately to inspect them below the waterline, and which, if defective, may create emergency situations where a small degree of negligence can readily lead to very substantial monetary loss. If the peculiar hazards involved in towing a barge supplied by the shipper are great, and the methods of guarding against those hazards uncertain, it may be that in an area where Congress has not, expressly or by fair implication, declared for a particular result, the federal courts should creatively exercise their responsibility for the development of the law maritime to fashion a particularized rule to deal with particularized circumstances.
We may assume that the question whether a clause of this kind offends against public policy is one appropriate ultimately for judicial rather than administrative resolution. But that does not mean that the courts must therefore deny themselves the enlightenment which may be had from a consideration'of the relevant economic and other facts which the. administrative agency charged with regulation of the transaction here involved is peculiarly well equipped, to, marshal and initially to evaluate. As was said in Far East Conference v. United States, 342 U. S. 570, 574-575, this Court has frequently recognized and. applied
a principle, now firmly established, 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. This is so even though the facts after they have been appraised by specialized competerice serve as a premise for legal consequences to be judicially defined. Uniformity and consistency in the regulation of business entrusted to a particular agency are secured, and the limited. functions of review by the judiciary are more rationally exercised, by preliminary resort for ascertaining arid interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure.”
We hold that the Court of Appeals correctly ruled that the exculpatory clause here at issue should not be struck down as a matter of law, and that the parties should be afforded a reasonable opportunity to obtain from the I. C. C., in an appropriate form of proceeding, a determination as to the particular circumstances of the tugboat industry which lend justification to this form of clause, if any there be, or which militate toward a rule wholly invalidating such provisions-regardless of the fact that the carrier which seeks to invoke them is subject to prospective and retrospective rate regulation. “Cases are not decided, nor the law appropriately understood, apart from an inforrhed and particularized insight into the factual ■ circumstances of the controversy under litigation.” Federal Maritime Board v. Isbrandtsen Co., 356 U. S. 481, 498. This principle has particular force when the courts are asked to strike down on grounds of public policy a contractual arrangement on its face consensual.
The case is remanded to the Court of Appeals with instructions to pass upon the first three assignments of error specified by respondent in its appeal from the judgment of the District Court. Should resolution of-those, issues not dispose of-the case, the Court of Appeals is directed to remand the case to the District Court with instructions to hold it in abeyance while the parties seek the views of the I. C. C., in any form of proceeding which that body may deem appropriate, as. to the circumstances bearing on the validity of respondent’s exculpatory clause in the context of this litigation, and for further proceedings consistent with this opinion.
It is so. ordered.
The Chief Justice, Mr. Justice Black and Mr. Justice Douglas believe that the rule of law announced in Bisso should not be changed by the Interstate Commerce Commission, and would therefore reverse this judgment.
The District Court found that the sinking of the Peter B was occasioned by the shipping of water through a crack in the starboard shell plate of one of its cargo tanks which had been discovered by petitioner’s local manager while the -barge was being loaded with molasses under his supervision, and that respondent’s employees were negligent in various respects in failing to take proper precautions to avoid the sinking after it should have become evident that the barge was shipping water.
46 U. S. C. § 192: “If the owner of any vessel transporting merchandise or property to or from any port in the United States of America shall exercise due diligence to make the said vessel in all 'respects seaworthy and properly manned, equipped, and supplied, neither the vessel, her owner or owners, agent, or charterers, shall become or be held responsible for damage or loss resulting from faults or errors in navigation or in the management of said vessel . . . .”
The pertinent provisions of the tariff provided:'
“When shipments are transported in barges furnished by owners, shippers, consignees or .parties other than the Carriers parties to this Tariff, such barges and (or) cargoes will be handled at owner’s risk only, whether loss or damage is caused by negligence or otherwise..
“Presentation of a shipment in barge furnished by shipper, consignee or owner for movement on rates named herein shall constitute a ' guarantee to the Carriers parties to this Tariff that' such barge is seaworthy and barge and cargo are in suitable condition for voyage in prospect. -. . .”
In reaching this conclusion the court relied on “the rule frequently stated by the Supreme Court that ‘Until changed, tariffs bind both carriers and shippers with the force of law.’ Lowden v. Simonds-Shields-Lonsdale Grain Co., 306 U. S. 516, 520 . . . ; Crancer v. Lowden, 315 U. S. 631, 635 ....’’ 253 F. 2d 922, 925.
Compare Boston & Maine R. Co. v. Piper, 246 U. S. 439, 445, where this Court held a limitation of liability clause void although filed as part of a tariff with the I. C. C. by a rail carrier, saying that: “While this provision was in the bill of lading, the form of which was filed with the-Railroad Company’s tariffs with the Interstate Commerce Commission, it, gains nothing from that fact. The legal conditions and limitations in the' carrier’s bill of lading duly filed with the Cpmmission are binding .until changed by that body [citation] . . . but not so of conditions and limitations which are, as is this one, illegal, and consequently void.” The decisive difference between Piper and this case is that there the exculpatory clause was specifically declared illegal by the Interstate Commerce Act itself. See 49 U. S. C. §20 (11).
It may be noted that the tug-tow relationship has not been assimilated by the law to that between a common carrier and shipper so far as liability is concerned. See, e. g., The Steamer Syracuse, 12 Wall. 167. Thus although at common law a common carrier was liable, without proof of negligence, for all damage to the goods transported by it, unless it affirmatively showed that the damage was occasioned by the shipper, acts of God, the public enemy, public authority, or the inherent vice or nature of the commodity, Secretary of Agriculture v. United States, 350 U. S. 162, 165, n. 9, and cases cited, the District Court in the present case held that respondent could not be held liable in the absence of its negligence and petitioner did not assail that determination on appeal. '
Part III of the Interstate Commerce Act has made tugboats common carriers for regulatory purposes under certain circumstances. See Cornell Steamboat Co. v. United States, 321 U. S. 634. Section 320 (d) of that Act, 49 U. S. C. § 920 (d), explicitly provides, however, that the statute is not to'be construed to affect “liabilities of vessels and their owners for loss or damage . . .The settled common- . law rule that common carriers may not “by any form of agreement secure exemption from liability for loss or damage caused by their own. negligence,” Sun Oil Co. v. Dalzell Towing Co., 287 U. S. 291, 294; Railroad Co. v. Lockwood, 17 Wall. 357; Liverpool & G. W. Steam Co. v. Phenix Ins. Co., 129 U. S. 397, thus has no application here.
Under Part III of the Interstate Commerce Act all “common carriers by water” as therein defined (see 49 U. S. C. § 902 (d)) are required to file with the. Commission and keep open to public inspection “tariffs showing all rates, fares, charges, classifications, rules, regulations, and practices for the transportation . . . of . . . property!’ and stating “any rules or regulations which in. any wise change, affect, or determine any part of the aggregate of such rates, fares, or charges, or the value of the service rendered to the passenger, shipper, or consignee.” 49 U. S. C. §906 (a). Contract carriers are subject to similar requirements. 49 U. S. C. §906 (e). The Commission may suspend newly filed tariffs while it investigates them, 49 U. S. C. § 907 (g), (i), and may at any time initiate an investigation, upon complaint or on its own initiative, into the reasonableness of filed tariffs. 49 U. S. C. §907 (b), (h).
It is of course open to the I. C. C. to consider any other factors which it may deem relevant to the question of the propriety of ■exculpatory clauses in regulated towage tariffs, such as the availability to shippers of arrangements whereby use of the tower’s barge, or payment of a higher alternative rate, results in an assumption by the tower of liability for its negligence, and the relative practicality and- cost of the securing of insurance against the kind of risk here involved by shipper and by tower. We do not intimate any view as to the relative weight of the factors herein mentioned.
Congress has in some.instances declared by statute the circumstances under which carriers may contract for release from or limitation of liability, or rules governing the liability or exemption from liability of carriers irrespective of contract. See 46 U. S. C. §§ 181-196, 1300-1315 (water carriers); 49 U. S. C. §§ 20 (11), 319 (rail and motor carriers). .Where such statutes apply of course no agreement in derogation of them, even-if embodied in a tariff, is valid. See, e. g., Adams Express Co. v. Croninger, 226 U. S. 491; Boston & Maine R. Co. v. Piper, supra.
As we have noted above, respondent claims that § 3 of the Harter Act, 46 U. S. C. § 192, applies to exempt it from liability in this case irrespective of the effect given its tariff exculpatory clause. Be that as it may, the cited provision is ample demonstration that there is no general congressional policy requiring water carriers to be held liable for damage caused by the negligence of their servants in all cases.
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
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songer_state
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What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
UNITED STATES of America, Plaintiff-Appellee, v. George F. VASEN, Defendant-Appellant.
No. 11209.
United States Court of Appeals, Seventh Circuit,
April 15, 1955.
Rehearing Denied June 3, 1955.
Finnegan, Circuit Judge dissented.
Joseph F. Burns, Chicago, 111., Maurice J. Walsh, Chicago, 111., of counsel, for appellant.
Robert Tiel en U. S. Atty., Edward J. Calihan, Jr., Asst. U. S. Atty., Chicago, 111., John P. Lulinski, Chicago, 111., of counsel, for appellee.
Before MAJOR, FINNEGAN and LINDLEY, Circuit Judges.
LINDLEY, Circuit Judge.
Defendant was convicted upon nine counts of an indictment charging use of the mails in carrying out a scheme to defraud, by selling fraudulent fractional undivided interest in oil, gas and other mineral rights in violation of Section 77q(a) of the Securities Act, Title 15 U.S.C.A. He was sentenced upon certain counts to five years in the custody of the Attorney-General and ordered placed on probation for a period of five years, following his release from custody, upon others. On appeal he assigns error as follows: (1) he was deprived of a fair trial by certain remarks of the court to the jury; (2) certain evidence was improperly admitted; (3) the court erroneously charged the jury. The record reflects no timely objection in the trial court upon any of these points.
Rule 30 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., prescribes the time and place for making objections to instructions. In the absence of compliance with this rule, defendants are precluded from reviewing the action of the court. United States v. Kaadt, 7 Cir., 171 F.2d 600; see also United States v. Sutter, 7 Cir., 160 F.2d 754. Other courts have consistently decided likewise. See Felton v. United States, 83 U.S.App.D.C. 277, 170 F.2d 153, certiorari denied 335 U.S. 831, 69 S.Ct. 18, 93 L.Ed. 385; Bartlett v. United States, 10 Cir., 166 F.2d 920. This rule is, in its essence, the same as that of Rule 51 of the Rules of Civil Procedure, 28 U.S.C.A., as to which it has repeatedly been declared that the purpose of requiring objections is to insure that the trial judge may be advised of possible errors upon his part and to give him an opportunity to correct them. For this reason, any objection must be fairly and promptly directed to the trial court in order that errors may be avoided. Stil-well v. Hertz Drivurself Stations, 3 Cir., 174 F.2d 714; Hower v. Roberts, 8 Cir., 153 F.2d 726; Williams v. Powers, 6 Cir., 135 F.2d 153. In other words the court must be given opportunity to rectify any inadvertent wrongful charge, statement or ruling. Allen v. Nelson Dodd Produce Co., 10 Cir., 207 F.2d 296; Green v. Reading Co., 3 Cir., 183 F.2d 716. This reasoning applies to every instance of assigned error where the action of which complaint is made is such that, if called to the court’s attention, it might have been corrected. This includes rulings in the course of the trial, comments of the court and instructions to the jury. In all such instances common fairness requires that before it can be successfully contended on appeal that the trial court has erred, that court must have been given an opportunity to rectify any inadvertent comment, ruling or instruction. It follows from the record in this case that defendant, inasmuch as he preserved no timely objection to any action on the part of the trial court of which he now complains, is without right to invoke this court’s jurisdiction to consider the assigned errors, unless they be of that serious character condemned by Rule 52(b), of the Rules of Criminal Procedure, 18 U.S.C.A.
Under Rule 52(b) plain errors “affecting substantial rights may be noticed” although not brought to the attention of the trial court. We remarked in United States v. Raub, 7 Cir., 177 F.2d 312, at page 315: “Such errors must, however, be substantial and capable of resulting in miscarriage of justice to warrant the reversal of a judgment of conviction based on ample evidence. We must not lightly invoke Rule 52(b).” And when issues have, on the whole been left to the jury in substantial compliance with the applicable law, we will not notice an error which the trial judge has not been asked to correct unless substantial rights have been adversely affected; that is to say, only seriously prejudicial error will be noticed, in the absence of objection. United States v. Kirby, 2 Cir., 176 F.2d 101; Himmelfarb v. United States, 9 Cir., 175 F.2d 924, certiorari denied 338 U.S. 860, 70 S.Ct. 103, 94 L.Ed. 527; United States v. Krulewitch, 2 Cir., 167 F.2d 943, reversed on other grounds in 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790; United States v. Williams, 2 Cir., 146 F.2d 651, certiorari denied 324 U.S. 876, 65 S.Ct. 1016, 89 L.Ed. 1428. The error must be such as would result in manifest miscarriage of justice or affect seriously the fairness of judicial proceedings. Smith v. United States, 9 Cir., 173 F.2d 181. See also Benson v. United States. 5 Cir., 112 F.2d 422, cer-tiorari denied 311 U.S. 644, 61 S.Ct. 43, 85 L.Ed. 411. Thus, in United States v. Bazzell, 7 Cir., 187 F.2d 878, we refused, in our discretion, to find that plain error had occurred. See also United States v. Sferas, 7 Cir., 210 F.2d 69, certiorari denied, Skally v. United States, 347 U.S. 935, 74 S.Ct. 630, 98 L.Ed. 1086; Apodaca v. United States, 10 Cir., 188 F.2d 932. And in United States v. Jones, 7 Cir., 204 F.2d 745, at page 749, certiorari denied 346 U.S. 854, 74 S.Ct. 67, 98 L.Ed. 368 we said, citing United States v. Joni-kas, 7 Cir., 187 F.2d 240: “In view of the failure of defendant’s counsel to advance the explicit contention here asserted, but 'consciously failed to save the point’ in the court below, we can not say that the error was obvious. * * * We shall not, in a flagrant case, give cognizance to a complaint first made to us and thus give defendant two bites at the same cherry, by declaring erroneous action of the trial court, the fault of which defendant did not see fit to make the court aware, when he had the opportunity to do so.”
Defendant complains chiefly of comments of the District Judge to the jury after the jurors had been sworn, but before they had received any evidence. Evidently the judge had been dissatisfied with an apparent miscarriage of justice in a previous case, where the jury had ignored the evidence and acquitted a defendant who, the judge undoubtedly thought, was guilty. Rather wide publicity had been given the incident by the press. However, it is apparent from reading the comments that, out of a super-abundance of caution, the judge was advising the jury that, though he had criticized the jury in one case widely publicized in the newspapers, he was not in the habit of doing so. Obviously, he was fearful that the newspaper reports might have inspired in the jurors’ minds the false idea that he was addicted to the practice of criticizing verdicts. What he said was obviously intended to advise them that he did not ordinarily do so and to assure them that they were free to exercise freely their inherent independent functions as jurors. This is obvious from his concluding remark that, in fairness to all defendants, he “wanted” the jury to know that he had no preconceived ideas. He added: “I make that statement because I want this defendant and * * * the Government both to have a fair trial, and I do not want you to have any idea that I participate in or have any notions or am in the habit of criticizing juries about their decisions.”
As we have pointed out, to these comments no objection was made. If there was anything in any part of the comments deemed prejudicial, it was defendant’s duty to object and to call to the judge’s attention what he deemed erroneous in order that the court might rectify any error made. But the first complaint of these comments is made on appeal. Clearly, we are without right to consider or to determine the error assigned, unless we can say as a matter of law that it constituted manifest error with resulting prejudice to the rights of defendant.
It seems obvious that, despite the good intentions of the judge, it was injudicious on his part to comment upon a prior case. But he was inspired by anxiety to assure defendant of a fair trial. Any apparent inadvertent overstepping of the boundaries of the proprieties in a jury trial in the way of indiscreet remarks, we think was, in view of the complete remarks, wholly without legal significance. We cannot see that the defendant was in any wise prejudiced by what was said. The jury was selected on Jan. 5, 1954. The trial began Jan. 18, and continued intermittently until March 2, 1954. At no time did defendant complain. Considering all the circumstances, we are of the opinion that it is beyond our province to declare that prejudicial error intervened.
In this connection we observe that defendant tendered instructions fully defining the functions of the jury as the exclusive triers of the facts, which were given by the court. One was, in pertinent part, as follows: “You are instructed that the jury is the sole judge of the facts in this case * * *. And in anything that the court may say in these instructions, the court has not intended, and he does not now intend to express any opinion upon the facts of this case, on the credibility of the witnesses, or the weight to be given their testimony.” The court also approved and gave defendant’s instruction number 11 which it characterized, in colloquy with counsel, as telling the jury “it is their duty to find the defendant not guilty if they possibly can.” The effect of these and other similar instructions was to advise the jury fully and completely of their duty to ignore the court’s remarks in the course of the trial, except those as to the controlling law, and to point out clearly their exclusive function of determining where the truth lay. Having failed to object to remarks at the time they were made, defendant might, if he felt himself prejudiced, have eliminated that prejudice by asking the judge to give an express exclusionary instruction, and in case of his failure to do so, have preserved the point he now attempts to raise.
It is urged that the court erred in instructing the jury as to the essential element of guilty knowledge of the falsity of the representations made. It exhaustively instructed the jury as to the essentials of proof and the law governing the indictment and the trial. In the course of his charge, however, the judge used these words: “It is not necessary, however, for you to find that the defendant had actual knowledge of the falsity of the representations being made. That part may be inferred from the evidence.” The court had fully explained that before the defendant could be found guilty it was necessary to find, beyond all reasonable doubt, that he had knowledge of the falsity of the representations made. But, as the judge said, guilty knowledge may be inferred where its asserted lack consists of ignorance of facts which ordinary persons under similar circumstances should have known, and the defendant could not be found guilty unless the jury found from the evidence that he must have known of the falsity. Proof of knowledge of falsity of what is said is seldom susceptible of proof by direct testimony. We cannot reach into a man’s mind and pick out any tangible, physical evidence of what has transpired in his mental processes. Of necessity, recourse to proved circumstances alone must supply the answer. Consequently, the jury, considering the circumstances, was called upon to determine whether it appeared, beyond all reasonable doubt, that defendant knew or was bound to know that what he said and did was done knowingly. Such was the full import and impact of the court’s complete charge. Obviously, it was endeavoring to advise the jury that before defendant could be found guilty, the circumstances proved must justify, beyond all reasonable doubt, only an inference that the defendant knew of the untruth of what he said or wrote. Bentel v. United States 2 Cir., 13 F.2d 327. Of course, guilty knowledge must be proved beyond all reasonable doubt, as the court charged, but proof of actual existence of such knowledge is not required; scienter may always be inferred from the proved circumstances, where its asserted lack is based on ignorance of evidentiary facts which any ordinary person under similar circumstances would be bound to know. Stone v. United States, 6 Cir., 113 F.2d 70; Schwinn v. United States, 9 Cir., 112 F.2d 74, affirmed per curiam 311 U.S. 616, 61 S.Ct. 70, 85 L.Ed. 390; United States v. Sylvanus, 7 Cir., 192 F.2d 96, certiorari denied 342 U.S. 943, 72 S.Ct. 555, 96 L.Ed. 701. It being apparent that the court correctly instructed the jury in this respect, it cannot be said that plain error intervened or even that, had there been an objection, it would have raised any meritorious ground for review here. Obviously, if defendant thought the instructions were not clear, he had a right and duty to object at the time they were given in the manner provided by the rule in order that the court might have full opportunity to amend the charge if it saw fit to do so.
Defendant asserts error because a Government witness, a lawyer, was permitted on re-direct examination, to testify that, in his opinion, the securities involved came within the Securities Act. Section 77b of that Act defining securities, includes among other things, “fractional undivided interest in oil, gas, or other mineral rights”. The instruments involved were strictly within this limited category; indeed they were of the exact character defined in the quoted words. The court, in essence, instructed the jury as a matter of law that the undivided interests in oil, gas and other mineral rights which defendant was charged with having sold were within the statute. Consequently, the proof of which complaint is made, was wholly superfluous and, if objection had been made, the answer could and probably would have been excluded. But there was no error, for the reason that the witness merely testified to what the court instructed the jury was true as a matter of law. That the securities were within the statute, cannot be questioned. Not only, therefore, was there failure to object, but there was complete absence of plain error which would justify us in invoking Rule 52(b).
We have before us a case where the evidence of guilt was voluminous and convincing. Indeed defendant does not question the sufficiency of the evidence, or its overwhelming character. But, though he has desisted from raising objections to testimony of which he now complains, though he complains of the court’s comments to which he has preserved no objection, and though he attacks the court’s instructions, all of which could have been corrected if the court’s attention had been called to any possible error, at the proper time and place, he now insists that, despite his apparent original thought that none of these matters of which he complains was erroneous, they were plain prejudicial errors. We cannot subscribe to this conclusion.
Defendant asserts broadly that he was deprived of a fair trial, yet nothing in the record supports the premise. True his original counsel had an attack of laryngitis, but the court, with sympathetic appreciation of the situation, continued the cause for defendant’s opening statement and later advised the jurors, on January 26, that associate counsel had been brought in and would participate in the trial as counsel. So, after Jan. 26, until the trial was concluded on March 3, two attorneys appeared for and represented defendant, both of whom, so far as this record discloses, were competent and able. Certainly the record reflects no basis whatever for defendant’s assertions in this respect.
Nor was the judgment defective. Though cumbrously phrased, it is clear that defendant was sentenced to 5 years in the custody of the Attorney-General upon certain named counts, and placed on probation, at the expiration of that sentence, for 5 years on certain other named counts. The sentence conformed to the requirements of Title 18, Sec. 3651, U.S.C. See Weber v. Squier, 9 Cir., 124 F.2d 618, certiorari denied 315 U.S. 810, 62 S.Ct. 800, 86 L.Ed. 1209; Palmer v. Sanford, D.C., 57 F.Supp. 104, affirmed 5 Cir., 147 F.2d 549, certiorari denied 325 U.S. 878, 65 S.Ct. 1555, 89 L.Ed. 1995.
The judgment 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_respond1_1_3
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the 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.
JENSEN-SALSBERY LABORATORIES, Inc., v. O. M. FRANKLIN BLACKLEG SERUM CO.
No. 1013.
Circuit Court of Appeals, Tenth Circuit.
June 30, 1934.
.Henry FT. Ess, of Kansas City, Mo. (Thorpe & Thorpe, of Kansas City, Mo., T. M. Lillard, of Topeka, Kan., and I. FT. Watson, of Kansas City, Mo., on the brief), for appellant.
A. J. O’Brien, of Denver, Colo. (M. E. Anderson, of Denver, Colo., and Jas. E. Smith, of Topeka, Kan., on the brief), for appellee.
Before PHILLIPS, MeDERMOTT, and BRATTOFT, Circuit Judges.
PHILLIPS, Circuit Judge.
The O. M. Franklin Blackleg Serum Company, hereinafter called Franklin Company, brought this suit against the Jensen-Saisbery Laboratories, Ine., hereinafter called JensenSaisbery, to enjoin infringement of patent No. 1,511,557, issued October 14, 1934, and for an accounting.
The patent is for a process for preparing blackleg bacterin. It is a vaccine used to immunize against symptomatic anthrax or blackleg, a disease to which herbivorous animals, chiefly cattle and sheep, are subject.
The process of the patent consists of three steps:
(1) A suitable liquid medium is obtained by grinding a meat substance and extracting the broth therefrom. Salt and peptone are added. Calcium carbonate and starch inclosed in a muslin sack a,re placed in this liquid medium, and it is sterilized.
(3) The medium is then inoculated with a freshly isolated culture of Clostridium chauvei, the bacilli which cause blackleg, and the bacteria are grown in the liquid medium. After suitable growth the medium is strained through cotton or fine wire gauze to remove the coarser particles. A formalin solution is then added and the medium, maintained at a temperature of about 45° C. for several days. The bacteria are thus killed without destroying their antigenic or immunizing properties.
(3) The resultant product is then treated to obtain the micro-organisms in suitable form for use as a bacterin.
As to such treatment the specification, after describing steps one and two, states:
“After the foregoing treatment, the culture is allowed to settle, most of the organisms settling out in a short time. The product is then treated in any suitable way to obtain the organisms in a form for use as a vaccine or baeterin. * * * One method of procedure is to decant the supernatant liquid to about lyiOth of its original volume, the remaining liquid containing the organisms being' used as a vaccine. An alternative procedure is to centrifuge the organisms out of the media and dry them. The dry powder thus obtained is used for direct injection as a vaccine by suspending the same in suitable liquid suspension or, if desired, the dry powder can be made in the form of a pellet and used as a vaccine.”
Claims 1 and 2 may be regarded as typical of the claims here involved. They read as follows:
“1. The method of preparing a blackleg vaccine which consists in growing blackleg organisms in a suitable culture media, adding a reagent to kill the organisms without destroying their antigenic properties, and treating the resultant product to obtain the organisms in suitable form for immunizing use.
“2. The method of preparing a blackleg vaccine which consists in growing blackleg organisms in a suitable culture media, treating the same- after suitable growth with a formalin solution in a concentration sufficient to kill the organisms without destroying their antigenic properties, and treating the resulting product to obtain the organisms in suitable form for immunizing use.”
Claims 3 to 9, inclusive, are set out in .
The material portions of the specification are set out in .
The file wrapper discloses that original claim 2 read as follows:
“In a method of making blackleg vaccine, the steps which consist in inoculating into a suitable media a culture of blackleg organisms, treating the culture after suitable growth with a formalin solution and heating tho product to a temperature not exceeding 50° C. whereby the organisms are killed but retain immunizing properties.”
It will be noted that this claim is for a two-step process. Original claims 1, and 3 to 9, inclusive, covered a three-step process. Original claims 1 to 9 were rejected.
Claim 2 was then amended by inserting before the word “media” the word “liquid,” and following the word “media” the phrase, “substantially free from solid matter.” Like amendments were made to claims 1, and 3 to 7, inclusive, which still covered the three-step process.
A new claim 8, to take the place of original claims 8 and 9, was submitted. It read as follows:
“The method of preparing a blackleg vaccine, which consists in growing in a suitable liquid media under aerobic conditions a culture of blackleg organisms, adding to the culture after suitable growth a reagent to kill the organisms, heating the same to a lempera.ture not exceeding .j0'° 0. and treating the resultant product to obtain the organisms in suitable form Cor immunizing use.”
Amended claims 1 to 8, inclusive, were rejected. They were then canceled, and claims 1 to 9 of the patent in suit were applied for and allowed.
Jensen-Salsbery prepares blackleg bacteria by a process consisting of two steps: (1) Growing the micro -organisms in a suitable culture medium, and (2) killing the microorganisms with a reagent and heat. It does not employ any treatment to obtain the microorganisms in a suitable form for immunizing use by decanting- the supernatant liquid, or by centrifuging the micro-organisms and drying them, or any other similar treatment. It simply subjects the product resulting from the two-step process to the test required by the Department of Agriculture, and if it meets that test it places it in containers and distributes it for immunizing use.
The cause was submitted to a special master. In his report the master states:
“Does the addition of this admittedly non-essential statement and unpatentable third step in the patent, so differentiate plaintiff’s process from defendant’s process in making the same immunizing product, as to avoid infringement?”
The master states that the novelty of the invention lies in the discovery by Franklin that the micro-organisms could be killed with formalin without destroying their antigenic properties; that the third step was non-essential, and that there was no substantial or essential difference between the process of the patent and the process employed by JensenSalsbery.
He found claims 1 to 9 valid and infringed, and recommended a decree accordingly.
From a decree confirming the master’s report, adjudging claims 1 to 9 valid and infringed and directing an accounting, JensenSalsbery has appealed.
Where an applicant for a patent on a mechanical combination or a process is compelled by the rejection of his application by the Patent Office to narrow his claim by the introduction of a new element in the combination or a new step in the process, he cannot, after the issue of the patent, broaden his claim by omitting the element or step he was compelled to include in order to secure his patent. If dissatisfied with the rejection, he should appeal therefrom, and where, in order to get his patent, he accepts one with a narrower claim, he is bound by it. Whether the action of the Examiner was right or wrong, the court may not inquire. • The applicant having limited his claim by amendment and having accepted a patent with such claim, brings himself within the rules; that, if a claim to a combination is restricted to specified elements, or a claim to a process is restricted to specified steps or a series of acts, all must be regarded as material; that limitations imposed by the applicant,, especially those added by amendment after a claim has been rejected, must be construed against the inventor and regarded as disclaimers; and that the patentee is thereafter estopped to claim the benefit of the rejected claim or such a construction of his amended claim as would he equivalent thereto.
The principles above stated have been applied more frequently to patents for combinations (), but they apply equally to process patents. .
In Shepard v. Corrigan, 116 U. S. 593, 597, 6 S. Ct. 493, 495, 29 L. Ed. 723, the court said:
“Where an applicant for a patent to cover a new combination is compelled by the rejection of his application by the patent-office to narrow his claim by the introduction of a new element, he cannot after the issue of the patent broaden his claim by dropping the element which he was compelled to include in order to secure his patent.”
In Royer v. Coupe, 146 U. S. 524, 532, 13 S. Ct. 166, 169, 36 L. Ed. 1073, the court said:
“On June 10, 1373, he put in a claim to the mode of preparing rawhides by the fulling operation and the preserving mixture. That claim was rejected by the patent office, and he withdrew it on October 29,1873. Nor can he, under the present patent, claim as a new article of manufacture the rawhide thus prepared; for he made that claim on June 10> 1873; it was rejected, and he struck it out on October 9, 1873. •
“It is well settled, by numerous eases in this court, that under such circumstances a patentee cannot successfully contend that his patent shall he construed as if it still contained the claims which were so rejected and withdrawn. Roemer v. Peddie, 132 U. S. 313, 317, 10 S. Ct. 98 [33 L. Ed. 382], and cases there cited. The principle thus laid down is that where a patentee, on the rejection of his application, inserts in his specification, in consequence, limitations and restrictions, for the purpose of obtaining his patent, he cannot, after he has obtained it, claim that-it shall be construed as it would have been construed if such limitations and restrictions were not contained in it.”
Every element of a combination or step in a process claimed is conclusively presumed to be material. The omission of one element, ingredient, or step of a combination claim avoids infringement of that claim, whether or not the omitted element, ingredient, or step was essential to the combination. .
A claim of a process patent is not infringed where any one of the steps or series of acts, set forth in the claim as constituting the process, is omitted, unless some equivalent step or act is substituted for the one omitted. .
In Fay v. Cordesman, 109 U. S. 408, 420, 3 S. Ct. 230, 244, 27 L. Ed. 979, the court said:
“The claims of the patents sued on in this case are claims for combinations. In such a claim, if the patentee specifies any element as entering into the combination, either directly by the language of the claim, or by such a reference to the descriptive part of the specification as carries such element into the claim, he makes such element material to the combination, and the court cannot declare it to be immaterial. It is his province to make his own claim and his privilege to restrict it. If it be a claim to a combination, and be restricted to specified elements, all must be regarded as material, leaving open only the question whether an omitted part is supplied by an equivalent device or instrumentality”
In Hall-Mammoth Incubator Co. v. Tea-bout (C. C. A. 2) 215 F. 109, 110, the court said:
“It may be that the claim was unnecessarily specific, that elements which are unnecessary are found there and that the apparatus will operate without these elements. Concede all this and it does not aid the complainant. Hall saw fit to include in his combination all the elements found in the claim. One who does not use that combination does not infringe.”
In McClain v. Ortmayer, 141 U. S. 419, 425, 12 S. Ct. 76, 78, 35 L. Ed. 806, the court said:
“The principle announced by this court in Vance v. Campbell, 1 Black, 427 [17 L. Ed. 168], that, where a patentee declares upon a combination of elements which he asserts constitute the novelty of his invention, he cannot in his proofs abandon a part of such combination and maintain his claim to the rest, is applicable to. a ease of this kind, where a patentee has claimed more than is necessary to. the successful working of his device.”
Mr. Walker in his work on Patents (6 th Ed.) § 390, says:
“No process patent is infringed where any one of the series of acts which constitute the process is omitted by the supposed infringer, unless some equivalent act is substituted for the one omitted.”
In Kennedy v. Solar Refining Co. (C. C. Ohio) 69 F. 715, 717, the court said:
“A process patent, when involving a combination of different elements, is similar to a patent for a combination of mechanical devices. No infringement of the latter can be sustained unless every one of the constituent elements is employed.”
It follows that the third step in the process must be conclusively presumed to be essential, and that Jensen-Salsbery did not infringe unless it employed some equivalent step.
The specification and claims of a patent constitute a contract between the United States and the patentee, and they should be read and construed together, not for the purpose of limiting, contracting, or expanding the claims, but for the purpose of ascertaining from the entire agreement the actual intention of the parties. .
Counsel for the Franklin Company contend that the word “treatment” used in the claims may be construed to mean the introduction of formalin to kill the micro-organisms, and that Jensen-Salsbery employs that step. But the claims are not subject to. this construction. The second step in each claim is the addition of a reagent to kill the microorganisms, and the third step is “treating the resulting product.” The “resulting product” clearly relates to. the product after the microorganisms have been killed. A reference to the specification makes this clear. Furthermore, counsel undertake to construe the claims as though they read like claim 2 that was twice rejected. This they may not do.
Counsel for the Franklin Company further contend that the testing of the product for sterility after the second step is completed, and the placing of it in containers, is a treating of the resulting product to obtain the micro-organisms in suitable form for immunising use. The New Standard Dictionary defines “treat” as follows: “To apply a special process to.” A consideration of the specification leads to the conclusion that the word “treating” is used in that sense in the claims. Neither testing the resultant product nor placing it in containers is the application of a special process thereto; no change in the product is effected thereby.
We conclude therefore that the third step must be conclusively presumed to be an essential element in the process covered by claims 1 to 9, inclusive, that the Franklin Company is estopped from asserting that such claims should be construed as though they read like claim 2, that Jensen-Salsbery does not employ the third step or any equivalent therefor, and does not infringe such claims.
We deem it unnecessary to pass on the validity of the claims.
Reversed.
Note 1. “3. The method of preparing a blackleg vaccine which consists in growing blackleg organisms in a suitable culture media, adding a reagent to kill the organisms without destroj’ing their antigenic properties, heating the solution, and treating the resulting product to ob-' tain the organisms in suitable form for immunizing use.
“4. The method of preparing a blackleg vaccine which consists in growing blackleg organisms in a suitable culture media, treating the same after suitable growth with a formalin solution in concentration sufficient to kill the organisms without destroying their antigenic properties, heating the solution, and treating the resulting product to- obtain the organisms in suitable form for immunizing use.
“5. The method of preparing a blackleg vaccine which consists in growing blackleg organisms in a suitable culture media, adding a reagent to kill the organisms without destroying their antigenic properties, heating the solution to a temperature not exceeding 50° 0., and treating the resulting product to obtain the organisms in suitable form for immunizing use.
“6. The method of preparing a blackleg vaccine which consists in growing blackleg organisms in a suitable culture media, adding a reagent to kill the organisms without destroying- their antigenic properties, heating the solution for period from 3 to 7 days to a temperature not exceeding 50° 0. and treating the resulting product to obtain the organisms in suitable .form for immunizing use.
“7. The method of preparing blackleg vaccine which consists in growing blackleg organisms in a suitable culture media, adding thereto a formalin solution of sufficient strength to kill the organisms without destroying their antigenic properties, heating the solution for a period of from 3 to 7 days at a temperature not exceeding 50° C., and treating the resulting product to obtain the organisms in suitable form for immunizing use.
“8. The method of preparing a blackleg vaccine, which consists in growing in a suitable liquid media under aerobic conditions a culture of blackleg organisms, adding to the culture after suitable growth a reagent to kill the organisms without destroying their antigenic properties, and treating the resultant product to obtain tlie organisms in suitable form for immunizing use.
“9. The method of preparing a blackleg vaecine which consists in growing blackleg organisms in a suitable culture media, adding thereto a reagent to kill the organisms without destroying their antigenic properties, and withdrawing a portion of the liquid from the media while retaining the organisms therein, whereby a concentrated solution adapted for use as a vaccine is obtained.”
Note 2. “A suitable culture media is first prepared. This is done by grinding a quantity of suitable meat substance, preferably hog liver, and extracting the same with water, after which it is cooked and the broth pressed out of the pulp. The usual amount of peptone and salt are then added. * * * ,
“After the media is prepared as described, I place therein a cloth sack preferably made of ordinary muslin, which contains calcium carbonate and starch in suitable quantities. ' The starch acts to accelerate growth of the organisms and the calcium carbonate tends to stabilize or keep the hydrogen ion concentration near neutral and also apparently facilitates growth of the organisms. * * * The same media thus prepared is then sterilized in the usual manner.
“After the media has been prepared and sterilized as described, I inoculate the same with a purified culture of blackleg organisms. * * * After suitable growth of the organisms has taken place the media is strained through any suitable substance, such as cotton or fine wire gauze, which serves to remove therefrom the coarser solid particles. A formalin solution is then added to tho liquid containing- the culture. * * * The resulting product is then allowed to stand for several days, about 3 to 7, and during this period it is preferably kept at a temperature of approximately 45° 0. as by means of a water bath or in any other desired manner. The treatment with formalin results in killing the organisms in their vegetative and spore forms and this result is accomplished in less time and more satisfactorily if heat is employed as described. The killing of the organisms does not destroy their antigenic property. * * *
“After the foregoing treatment, the culture is allowed to settle, most of the organisms settling out in a short time. The product is then treated in any suitable way to obtain the organisms in a form for use as a vaccine or baeterin to be injected into the cattle and produce immunity from the blackleg disease. One method of procedure is to decant the supernatant liquid to about l/l0 of its original volume, the remaining liquid containing the organisms being used as a vaccine. An alternative procedure is to centrifuge the organisms out of the media and dry them. The dry powder thus obtained is used for direct injection as a vaccine by suspending the same in a suitable liquid suspension or, if desired, the dry powder can be made in the form of a pellet and used as a vaccine.”
Note 3. I. T. S. Co. v. Essex Rubber Co., 272 U. S. 429; 443, 47 S. Ct. 136, 71 L. Ed. 335; Shepard v. Corrigan, 116 U. S. 593, 597, 6 S. Ct. 493, 29 L. Ed. 723; Sutter v. Robinson, 119 U. S. 530, 541, 7 S. Ct. 376, 30 L. Ed. 492; Cimiotti Unhairing Co. v. American Fur Refining Co., 198 U. S. 399, 410, 25 S. Ct. 697, 49 L. Ed. 1100; Jesse E. Moore v. Frigidaire Corp. (C. C. A. 8) 71 F.(2d) 840, decided June 12, 1934; Dry Hand Mop Co. v. Squeez-Ezy Mop Co. (C. C. A. 5) 17 F. (2d) 465; Aleograph Co. v. Electrical Research Products (C. C. A. 5) 55 F.(2d) 106, 109; Doughnut Mach. Corp. v. Joe-Lowe Corp. (C. C. A. 4) 67 F.(2d) 135, 138; Watters v. Kny-Scheerer Corp. (C. C. A. 2) 68 F.(2d) 27, 29.
. Kennedy v. Solar Refining Co. (C. C. Ohio) 69 F. 715, 717; Royer v. Coupe, 146 U. S. 524, 532, 13 S. Ct. 166, 36 L. Ed. 1073; Walker on Patents (6th Ed.) § 399.
. Wichita Visible Gasoline Pump Co. v. Clear Vision Pump Co. (C. C. A. 8) 19 F. (2d) 435, 436, 437; Fay v. Cordesman, 109 U. S. 408, 420, 3 S. Ct 236, 27 L. Ed. 979; Sargent v. Hall Safe & Lock Co., 114 U. S. 63, 86, 5 S. Ct. 1021, 29 L. Ed. 67; Yale Lock Mfg. Co. v. Sargent, 117 U. S. 373, 378, 6 S. Ct. 931, 29 L. Ed. 950; McClain v. Ortmayer, 141 U. S. 419. 425, 12 S. Ct. 76, 35 L. Ed. 800 ; Hubbell v. United States, 179 U. S. 77, 80, 82, 21. S. Ct. 24, 45 L. Ed. 95; Hall-Mammoth Incubator Co. v. Teabout (C. C. A. 2) 215 F. 109, 110.
. Walker on Patents (6th Ed.) § 399; Kennedy v. Solar Refining Co. (C. C. Ohio) 69 F. 715, 717.
. Ottumwa Box Car Loader Co. v. Christy Box Car Loader Co. (C. C. A. 8) 215 F. 362, 373; Hudson Mfg. Co. v. Louden Mach. Co. (C. C. A. 8) 276 F. 527, 531; O’Brien-Worthen Co. v. Stempel (C. C. A. 8) 209 F. 847, 852; O. H. Jewel Filter Co. v. Jackson (C. C. A. 8) 140 F. 340; Fleischman Yeast Co. v. Federal Yeast Corp. D. C. Md.) 8 F. (2d) 186, 202.
See, also, Benoit v. Wadley Co. (C. C. A. 7) 54 F.(2d) 1041, 1044; N. O. Nelson Mfg. Co. v. F. E. Myers & Bro. Co. (C. C. A. 6) 25 F. (2d) 659, 603; Kelly Well Co. v. Kirschke Concrete Well Co. (C. C. A. 8) 14 F.(2d) 274, 276; I. T. S. Rubber Co. v. Panther Rubber Mfg. Co. (C. C. A. 1) 260 F. 934, 938.
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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songer_treat
|
G
|
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.
TRUNKLINE LNG COMPANY, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Indiana Gas Company, Inc., Panhandle Customer Group, Consumers Power Company, Michigan Consolidated Gas Company, Mississippi River Transmission Corporation, Intervenors. PANHANDLE CUSTOMER GROUP, Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent, Michigan Consolidated Gas Company, Trunkline LNG Company, Indiana Gas Company, Inc., Citizens Gas & Coke Utility, Mississippi River Transmission Corporation, Intervenors.
Nos. 89-1492, 89-1610.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 5, 1990.
Decided Dec. 14, 1990.
Raymond N. Shibley, with whom Michael F. McBride, Bruce W. Neely, and M.E. Remmenga were on the brief, for Trunk-line LNG Co., petitioner in 89-1492 and intervenor in 89-1610.
John R. Schaefgen, Jr., with whom Stephen L. Huntoon and Randall V. Griffin were on the brief, for Panhandle Customer Group, petitioner in 89-1610 and intervenor in 89-1492. Richard M. Merriman also entered an appearance.
Joel M. Cockrell, Atty., Federal Energy Regulatory Com’n, with whom William S. Seherman, General Counsel, and Joseph S. Davies, Deputy Sol., were on the brief, for respondent in 89-1492 and 89-1610. Jill Hall, Atty., Federal Energy Regulatory Com’n, also entered an appearance.
William M. Lange and Mona M. Janopaul were on the brief, for intervenor Consumers Power Co. in 89-1492.
Tom Rattray and Ronald E. Christian entered appearances, for intervenor Indiana Gas Co., Inc. in 89-1492 and 89-1610.
Jeffrey M. Petrash entered an appearance, for intervenor Michigan Consol. Gas Co. in 89-1492 and 89-1610.
John B. Rudolph, Vera Callahan Neinast, and Juanita Feigenbaum entered appearances, for intervenor Mississippi River Transmission Corp. in 89-1492 and 89-1610.
William P. Diener and Steven M. Sherman entered appearances, for intervenor Citizens Gas & Coke Utility in 89-1610.
Before SILBERMAN, HENDERSON, and RANDOLPH, Circuit Judges.
Circuit Judge Randolph, who was a member of the panel at the time the case was argued, re-cused himself from the case after oral argument.
Opinion for the Court filed PER CURIAM.
PER CURIAM:
In these consolidated cases, petitioners seek review of different aspects of two orders issued by the Federal Energy Regulatory Commission (“FERC”). Petitioner Panhandle Customer Group — an assemblage of natural gas distribution companies — challenges FERC’s decision not to rule on the prudence of Trunkline LNG’s acceptance of an amendment to a contract for importation of liquified natural gas (“LNG”). The amendment escalated the price paid for the gas. We remand this issue to FERC for further consideration. Petitioner Trunkline LNG Company seeks review of FERC’s resolution of various accounting issues. We deny this petition.
I.
We have described the gas importation project involved in these cases in a previous encounter with this subject matter, see Association of Businesses Advocating Tariff Equity v. Hanzlik, 779 F.2d 697 (D.C.Cir.1985) JABATE”), and accordingly will limit our discussion of it here. In 1973, Trunkline agreed to import LNG from a state-owned Algerian gas company. It then began constructing a facility in Lake Charles, Louisiana at which to unload the LNG, to convert it back into a gas, to store it, and ultimately to transport it to its sole purchaser. The Federal Power Commission (“FPC”), the predecessor to FERC, approved the import arrangement as well as construction of the Lake Charles facility. 58 F.P.C. 726 (1977).
On August 7, 1981, Trunkline informed the Algerians that it was ready to receive gas shipments. The Algerians, in reply, claimed that construction problems at their facility prevented immediate delivery. Trunkline ultimately secured performance from the Algerians by agreeing to a contract amendment increasing the price it would pay for the imported gas (Amendment No. 1). The parties further agreed that Amendment No. 1 would not go into effect until they obtained regulatory approval of the contract modification. In the interim, the Algerians agreed to begin deliveries of gas under the terms of the original agreement. The first shipment arrived at the Lake Charles facility on September 25, 1982.
After Trunkline announced that it would commence deliveries of gas, distributors asked the Economic Regulatory Administration (“ERA”) and FERC to suspend or revoke Trunkline’s import authorization. The price of Algerian gas had risen dramatically since the mid-1970’s, and the distributors wished to slip their obligation to purchase the Algerian gas from Trunkline. Trunkline subsequently filed applications with ERA and FERC for approval of Amendment No. 1. Both agencies declined to suspend or revoke Trunkline’s import authorization. See ABATE, 779 F.2d at 699. While they were considering Amendment No. 1, however, Trunkline suspended deliveries from Algeria in December, 1983 under the force majeure clause of the contract because of the unmarketability of the gas. This caused FERC to transfer Trunk-line’s application to ERA, which in turn refused to review Amendment No. 1 because it considered the question to have been mooted by the suspension of the parties’ contractual arrangement. See id. at 699-700. We affirmed this determination by ERA. See id. at 702.
The issues raised in this appeal stem from three separate matters which FERC ultimately consolidated for resolution. First, natural gas customers alleged (in the context of an application for a rate increase filed by Trunkline before it suspended imports) that Trunkline’s acceptance of Amendment No. 1 was imprudent. Second, the FERC staff conducted an audit of the cost of constructing the Lake Charles facility and proposed correcting entries that reduced Trunkline’s rate base. Trunkline objected to several of these correcting entries. Third, the FERC staff contended that certain shipping payments made by Trunkline to Lachmar Shipping, a 40 percent affiliate of Trunkline, were not prudent and therefore should not be part of the rate base. FERC ordered a hearing on these matters.
The AU ruled in Trunkline’s favor on the prudence of accepting Amendment No. 1, on many (but not all) of the correcting entries, and on the shipping costs. 38 FERC If 63,022 (Feb. 17, 1987) (“ALJ Opinion ”). On review, FERC declined to exercise jurisdiction over the issue of the prudence of Amendment No. 1 and ruled against Trunkline on all of the correcting entries and on the shipping costs. 45 FERC ¶ 61,256 (Nov. 22, 1988). FERC denied all requests for reconsideration. 48 FERC ¶ 61,182 (Aug. 2, 1989) (“Reconsideration Order”). Panhandle and Trunk-line have petitioned for review of these FERC orders.
II.
Panhandle challenges FERC’s decision that it does not have jurisdiction to assess the prudence of Amendment No. 1. FERC now agrees that its rationale for its finding that it lacked jurisdiction was erroneous and asks us to remand the prudence issue to it for further consideration. Trunkline nevertheless contends, on grounds different from those relied on below by FERC, that FERC has no jurisdiction over this issue and that a remand is consequently inappropriate. We believe that FERC should have the first word concerning its jurisdiction- and accordingly grant its request for a remand.
As we have recently explained in detail, jurisdiction over the regulation of imported natural gas is controlled by the Secretary of Energy, who is' free to delegate responsibilities in this area to FERC, to ERA, or to other officers or employees of the Department of Energy. See TransCanada Pipelines Ltd. v. FERC, 878 F.2d 401, 405-06 (D.C.Cir.1989). In guidelines issued in 1984, the Secretary granted ERA the authority under § 3 of the Natural Gas Act to determine whether to permit importation of natural gas as consistent with the public interest and FERC the authority under §§ 4, 5, and 7 of the Act to regulate the rates charged for imported gas. See id. at 405. The guidelines, however, limit FERC’s ratemaking jurisdiction to regulation “consistent[ ] with the determinations made by the [ERA] Administrator and the policy considerations reflected in the [ERA] authorization.” See id. (quotation omitted).
Trunkline’s principal argument focuses on this limitation. It contends that ERA already implicitly determined the prudence of Amendment No. 1 by refusing to revoke Trunkline’s import authorization and that any FERC reevaluation of the matter would be inconsistent with that determination and consequently beyond FERC’s jurisdiction.
In our view, Trunkline has presented nothing that would justify departure from the well-settled rule that agencies are generally to be given the first word in determining whether a matter falls within their jurisdiction, see, e.g., Federal Power Comm ’n v. Louisiana Power & Light Co., 406 U.S. 621, 647, 92 S.Ct. 1827, 1842, 32 L.Ed.2d 369 (1972); Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463-464, 82 L.Ed. 638 (1938). True, in TransCanada, upon which Trunk-line heavily relies, we affirmed a FERC ruling that it lacked jurisdiction to assess for ratemaking purposes the prudence of an importation decision because ERA necessarily resolved that question (or one very similar to it) when it originally authorized the importation as consistent with the public interest. See 878 F.2d at 407. But we have no confidence here — without hearing first from FERC — that ERA similarly implicitly declared Amendment No. 1 to be prudent when it refused to revoke Trunk-line’s import authorization. Indeed, it appears that ERA requires a higher showing from consumers seeking to revoke authorizations than from gas companies applying for them in the first place, see ABATE, 779 F.2d at 699, and thus it may well be that ERA would refuse to revoke an authorization even though a company’s decision to continue imports was imprudent. FERC is entitled to sort this matter out — at least initially.
III.
Trunkline seeks review of six FERC accounting rulings (on the correcting entries and the shipping costs) concerning the rate base Trunkline may employ in selling the imported gas. As Congress has delegated to FERC broad authority in rate-setting, requiring merely that the rates be “just and reasonable,” 15 U.S.C. § 717c, we play a severely limited role in reviewing a FERC ratemaking decision. We are not at liberty to mandate that FERC use “any single formula or combination of formulae in determining rates.” Federal Power Comm’n v. Hope Gas Co., 320 U.S. 591, 602, 64 S.Ct. 281, 287, 88 L.Ed. 333 (1944). Instead, “[I]f the total effect of [a] rate order cannot be said to be unjust and unreasonable,” the rate order is valid under the Natural Gas Act (and the Constitution). Id.; accord Permian Basin Area Rate Cases, 390 U.S. 747, 768, 88 S.Ct. 1344, 1360, 20 L.Ed.2d 312 (1968). The only question for us in that event is whether FERC has given reasonable explanations for its determinations — that no part of the order is “arbitrary, capricious, [or] an abuse of discretion” as the Administrative Procedure Act prohibits, 5 U.S.C. § 706(2)(A).
Trunkline has made no showing — aside from several conclusional allegations in its brief — that the accounting rulings have resulted in an unjust and unreasonable rate base taken as a whole. Accordingly, we may ask only whether FERC has offered a reasonable explanation for each ruling. We conclude that it has.
A.
FERC regulations provide that a utility may capitalize and include in its rate base the costs of financing construction (i.e., interest). 18 C.F.R. § 154.63(f). This is known as an allowance for funds used during construction, or AFUDC. A FERC accounting release, however, requires that the utility stop capitalizing the interest as AFUDC “when the facilities have been tested and are placed in or ready for service.” FERC Stat. & Reg. H 40,005, at 40,-009 (Accounting Release AR-5).
Trunkline argued before FERC that it should be permitted to capitalize the interest on construction financing of the Lake Charles facility until October 15, 1982, shortly after the first shipments of imported gas arrived at the facility. ALJ Opinion, 38 FERC H 63,022, at 65,132. FERC found that the Lake Charles facility was ready for service on August 7, 1981, although it was not tested or placed into service until October 15, 1982. 45 FERC 1161,256, at 61,779. It then held that, under Accounting Release AR-5, Trunkline could include as AFUDC only interest costs incurred by October 6, 1981, the time at which the facility was ready for service plus 60 days imputed as a reasonable testing period. Id.
Trunkline makes two basic arguments on appeal. It maintains first that FERC misapplied Accounting Release AR-5, both because the Lake Charles facility, in its view, is part of a unitary gas importation project which was not “ready for service” until the Algerians began supplying gas in late 1982 and because the Lake Charles facility, by FERC’s own admission, was not “tested” until that time. Alternatively, Trunkline contends that the Lake Charles facility itself was not ready for service, as FERC found, in August of 1981. We reject both arguments.
FERC reasonably concluded that Trunk-line’s contentions concerning Accounting Release AR-5 essentially raised the question whether the original import authorization had imposed on Trunkline the risk of project delay due to non-performance by the Algerians, 45 FERC ¶ 61,256, at 61,778. If the authorization did so, the costs associated with the delay should be borne by Trunkline even if the Lake Charles facility was part of a unitary project delayed by a breach beyond Trunkline’s control, and it would accordingly be rational to prevent inclusion in the rate base of AFUDC incurred after the project would have been ready to proceed but for the Algerians’ default. And under that hypothesis, it would be entirely reasonable for FERC to refuse to enforce the literal terms of Accounting Release AR-5, which would permit inclusion in the rate base of AFUDC up until the time of the testing delayed solely by the non-delivery of the gas. As FERC explained, “it would be improper to apply the guideline literally” because it “clearly contemplates that performance testing will commence immediately after construction activity ceases.” Id.
Although we might conclude otherwise were we reviewing the matter de novo, we defer to FERC’s conclusion that the import authorization did in fact place the risk of project delay on Trunkline. The opinion authorizing the project noted that
[m]any of the factors in this LNG import undertaking will not be subject to Trunk-line control, such as operation of [the Algerian state-owned gas company’s] li-quefation [sic] plant and the transportation of the LNG from the Algerian port.
- [U]pon consideration of the unprecedented nature and inherent risks of this LNG import program, it is concluded that ... [Trunkline be allowed to receive] additional returns ... designed to account for the additional risk involved....
58 F.P.C. at 782. FERC reasonably read this ruling as granting Trunkline a higher rate of return in exchange for its assumption of the risk of Algerian non-performance. Trunkline argues that neither the quoted passage nor anything else in the import authorization opinion expressly placed the risk of project delay on it, and points to language in the opinion on rehearing of the import authorization question explicitly assigning it the risk of project failure, 58 F.P.C. 2935, 2946 (1977), as creating an inference that the silence on project delay meant that the costs of delay were to be borne by its customers. But in light of the increased rate of return awarded Trunkline and the stress in the import authorization opinion on the riskiness of the project, this inference — while possible — is not powerful enough to offset the substantial deference we are bound to give to FERC’s interpretation of its own prior order. See, e.g., City of Angels Broadcasting, Inc. v. FCC, 745 F.2d 656, 661 (D.C.Cir.1984).
Finally, FERC’s conclusion that the Lake Charles facility was “ready for service” in August, 1981 is supported by substantial evidence. Trunkline sent correspondence to Algeria indicating that the Lake Charles facility would be ready to receive deliveries as of August 7, 1981. J.A. 911; see also Reconsideration Order, 48 FERC H 61,182, at 61,669. FERC also referred to an admission by Trunkline that start-up after receipt of initial gas deliveries could have occurred three to six weeks after August 7. 45 FERC ¶ 61,256, at 61,-777.
B.
In constructing the Lake Charles facility, Trunkline paid interest on construction loans and sales and use taxes on construction materials. At the time Trunk-line incurred these costs (1977-1979), the Internal Revenue Code permitted natural gas companies either to deduct or to depreciate such expenses for tax accounting purposes. ALJ Opinion, 38 FERC 11 63,022, at 65,136. Trunkline opted to deduct the tax and interest costs from an affiliated company’s tax return. This decision to deduct rather than to depreciate had the effect of deferring taxes incurred during the construction period, which of course was favorable to Trunkline because it permitted Trunkline and its shareholders to use the money in the interim (a benefit termed the “time value” of deferred taxes). Deferral of taxes also had the effect of making Trunkline’s later taxes—those paid during operation of the facility—higher than if it had spaced the tax benefit over time through depreciation. This, in turn, placed an additional burden on the ratepayers, who assume such costs in the prices they pay for natural gas.
The parties agree that the ratepayers are entitled to a reduction in the rate base by the amount of “deferred taxes,” which represents the difference between the amount of taxes paid in a given year in which a deduction was taken and the amount of taxes that the company would have paid in that year if it instead elected to depreciate. The parties do not agree, however, on whether the rate base should also be reduced by the time value benefit of these deferred taxes. FERC held that the rate base should be so reduced, reasoning that as the ratepayers bear the burden of construction costs in the form of higher gas prices, they should receive the entire tax benefit resulting from construction. 45 FERC K 61,256, at 61,782.
Trunkline argues that this ruling was arbitrary and capricious because FERC awarded the time value of deferred taxes to shareholders in the one previous order squarely addressing this issue. See Northern Border Pipeline Company, 23 FERC ¶ 61,213 (1983). In the ruling below, FERC distinguished Northern Border as a “sui generis ” case requiring special regulatory treatment. 45 FERC ¶ 61,256, at 61,782. Trunkline contends that this is an insufficient explanation.
An agency cannot typically abandon an earlier position simply by subsequently terming the case in which it was applied “sui generis,” but is instead “obligated to supply a reasoned analysis for the change.” Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Ins. Co., 463 U.S. 29, 42, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). In this instance, however, we think FERC’s explanation for not following its earlier ruling is adequate. In Northern Border, FERC indicated that it ordinarily would require companies to pass through to ratepayers the time value benefit of deferred taxes. 23 FERC ¶ 61,213, at 61,441. It declined to apply the general policy in that case only because of a congressionally-recognized “need to facilitate financing of the [Alaska Natural Gas Transportation System],” expressly noting that it would “not require a reduction [of rate base] in this case” because of “the sui generis status of [the Alaska natural gas] project.” Id. As FERC indicated its general pro-ratepayer inclination on this question in the previous opinion and specifically confined its decision in that case to special limiting factors, we believe that FERC did not thereby establish a new general policy of awarding the time value to shareholders.
C.
Expenses of a business generally become due before payment for services rendered are received, and reserves therefore must be kept at hand (and remained unused) to meet these expenses. To permit a gas company to recover the lost opportunity cost of this idle capital, the Natural Gas Act allows it to include in its rate base “a cash allowance to permit it to meet current obligations as they arise.” Boroughs of Ellwood City v. FERC, 731 F.2d 959, 963 (D.C.Cir.1984). This cash allowance is termed “cash working capital.”
In order to determine how much capital a 'company is forced to reserve, and thus to calculate the amount of cash working capital the company may include in its rate base, FERC performs a “lead-lag” study. This study has two parts: it “measures the differences in the time frames between (1) the time services are rendered until the revenues for that service are received [the revenue lag] and (2) the time that labor, materials, etc., used in providing services are incurred and recorded until they are paid for [the expense lag].” At COUNTING FOR PUBLIC UTILITIES § 5.06 (1989). If its revenue lag exceeds its expense lag, a company will need to keep capital on hand—there will be a certain number of days where the company has to pay expenses incurred in providing a service but has not yet received payment from the customers who received the service. The amount of cash working capital added to rate base is a function of this number of days.
Trunkline and FERC first disagree on the number of days that should be considered in calculating the cash working capital allowance. They agree that Trunk-line’s revenue lag is 40.280 days, which represents the time between Trunkline’s delivery of gas to its customer and the date that payment is due to it. They reach different conclusions, however, as to the expense lag enjoyed by Trunkline. Trunk-line argued before FERC, and repeats here, that its expense lag was only 3.26 days, which represents the amount of time between Trunkline’s delivery of gas to its customer and its payment to the Algerians for the gas. The FERC rejected this method of calculation as incorrectly focusing on the date of Trunkline’s sale of gas to its customer as opposed to the date of its receipt of the gas; FERC instead thought that the expense lag calculation should be based on the difference between the date of Trunkline’s receipt of the gas from the Algerians (the date on which Trunkline incurred the expense) and the date of its payment to them, an equation which yields an expense lag of 22.32 days. Reconsideration Order, 48 FERC ¶ 61,182, at 61,677.
We think that FERC’s view is plainly reasonable. As explained above, the entire reason for calculating the expense lag is to determine the number of days in which a company retains in its possession capital to which it ultimately has no right. This figure is then offset by the revenue lag—the number of days in which a company does not possess money to which it ultimately has a right—to determine whether, on net, the company has a need for idle cash and is entitled to a cash working capital addition to rate base. In light of this, FERC’s decision to measure the expense lag in reference to the time between the date when a company incurs an expense (and presumably receives the corresponding benefit) and when it pays the expense seems manifestly rational.
Trunkline’s argument appears to be that it derives no economic benefit from the gas until it passes the gas along to its customer because the intervening period between receipt from the Algerians and sale in the United States is simply used for shipping. It contends that this shipping period therefore is not properly part of the expense lag. This argument, however, is contradicted by the record, which shows that the gas becomes the property of Trunkline once it is loaded onto the tankers in the Mediterranean. J.A. 230 (contract of sale). It seems to us that having a property interest in gas confers some economic benefit on Trunk-line at all times—Trunkline, for example, may use the gas as collateral or may sell the gas for immediate payment even while it is at sea. We therefore sustain FERC’s decision on this point.
FERC and Trunkline disagree on another lead-lag issue as well. FERC regulations permit a company to include in its rate base a return for non-liquid natural gas stored underground. ALJ Opinion, 38 FERC ¶ 63,022, at 65,143. Based on this, Trunkline excluded from its lead-lag study and placed directly in the rate base the costs of storing gas necessary to maintain cryogenic (low temperature) conditions in the tanks.
The parties agreed that liquid natural gas which was maintained in storage tanks for cryogenic purposes “is analogous to the ... non-LNG stored underground” and therefore “includable in the rate base....” 45 FERC ¶ 61,256, at 61,791. According to FERC, they also agreed that only stored gas necessary for cryogenic purposes could be included in the rate base. Id. The parties held different views, however, about how much gas was in fact needed to maintain cryogenic conditions. Trunkline argued that it was entitled to include in the rate base the average balance of gas continuously held in storage during a billing period. FERC noted that this average balance proved nothing about the amount of gas necessary to maintain cryogenic conditions and, as Trunkline submitted nothing showing the amount required for that purpose, held that Trunkline had failed to meet its burden of proving that any gas had to be held. Reconsideration Order, 48 FERC ¶ 61,182, at 61,678. Accordingly, it required a refund to the ratepayers.
We again think FERC’s conclusion reasonable. It fully explained why Trunk-line’s evidence on the average balance of gas continuously held in storage was not sufficient to show the amount of gas needed for cryogenic purposes: “[cjlearly, the level of LNG in the storage tanks fluctuated. If the tanks could be safely operated with a quantum of [gas] less than the average volume on any given day, then it can hardly be said that the average (and, necessarily, higher) volume of [gas] was needed for cooling.” Reconsideration Order, 48 FERC ¶ 61,182, at 61,678.
Trunkline now argues that FERC misinterpreted its position. It maintains that its contention below was not simply that gas necessary to maintain cryogenic conditions should be included directly in the rate base, but rather that it is entitled to include the average balance of gas continuously held in storage for other necessary functions as well. The record, however, is not clear on the position taken by Trunkline below, and the briefs in this case certainly did not enlighten us in this regard. True, the ALJ may have cryptically implied that Trunkline believed that gas stored for cryogenic purposes was the strongest but not the only case for rate base treatment. ALJ Opinion, 38 FERC ¶ 63,022, at 65,143. But Trunkline offers no evidence of its position below except for this unrevealing reference in the ALJ’s initial decision.
D.
In 1977, when the FPC approved construction of the Lake Charles facility and authorized gas imports from Algeria, it set Trunkline’s straight-line rate of depreciation at 5 percent. 58 F.P.C. at 743. Trunkline asked FERC for a decrease in this rate. FERC declined to reach this request because Trunkline had not raised the issue before the AU, “thus improperly depriving opposing parties of a full opportunity to contest the issue.” 45 FERC ¶ 61,256, at 61,795. It accordingly held that Trunkline had to initiate a new proceeding to obtain a change in the depreciation rate. Id.
Trunkline argues that the Commission should have addressed its request. It asserts that FERC had a full record on which to make a decision and contends that, under Minneapolis Gas Co. v. Federal Power Comm ’n, 294 F.2d 212 (D.C.Cir.1961), FERC therefore had to reach the depreciation issue. We disagree. In Minneapolis Gas, the FPC terminated a proceeding without rendering a decision even though it had set an issue for hearing, collected all evidence, and concluded the hearing itself. See id. at 215. Here, by contrast, a hearing was never held on the depreciation issue—Trunkline did not propose a change in its depreciation rate when it first filed a proposed tariff for review by the ALJ, when it presented its direct case, or when it introduced reply testimony. ALJ Opinion, 38 FERC If 63,022, at 65,144. FERC acted well within its broad discretion to structure its own proceedings in ruling that Trunk-line could not under these circumstances obtain a change in its depreciation rate without unduly jeopardizing the opportunity of all interested parties to challenge Trunkline’s proposals.
E.
When it approved Trunkline’s project in 1977, the FPC held that the prudence of Trunkline’s shipping rates could be reviewed in future rate proceedings. The FPC explained that rates would be deemed prudent if the costs of shipping were “reasonable when considered in the context of the customs and practices of the shipping industry.” 58 F.P.C. at 739.
Under the shipping contract between Trunkline and its 40 percent affiliate, Lach-mar, shipping rates were a function of estimated or budgeted costs instead of actual costs. To reconcile these estimated costs with the actual cost of shipment, the contract annually adjusted shipping rates for the next year by the amount that Trunkline overpaid or underpaid in the previous year. In the year prior to the termination of imports due to the force majeure situation, Trunkline had paid Lachmar approximately $14.5 million more than actual shipping costs. As operations had ceased, Trunkline obviously could not obtain a refund in the form of lower costs the next year, and ratepayers absorbed this cost.
FERC ruled that Trunkline’s payment of these costs was imprudent and that the ratepayers therefore should not be responsible for covering the $14.5 million loss. It held that Trunkline possessed the burden of producing evidence that this contractual arrangement was consistent with industry practice, reasoning that the presumption of management prudence was rebutted because Trunkline paid an affiliate for “costs” that Trunkline never incurred. 45 FERC ¶ 61,256, at 61,803. It then determined that Trunkline had not carried this burden, as it “failed to allege or establish that payment by shipping consignees of contractual costs not actually incurred by providers of ocean transportation service is consistent with industry practice.” Id.
Trunkline contends that FERC illegitimately focused on the unfortunate and unanticipated results of the contractual arrangement in this case rather than on whether that arrangement was consistent with industry practice. It argues that it conclusively demonstrated its prudence—as defined in the original FPC opinion—by showing that an arrangement basing payments on estimated rather than actual costs is typically (or even occasionally) employed in the industry, and it insists that FERC therefore had to allow its payment of the “costs” without regard to whether Lachmar actually earned them or to Trunk-line’s inability to obtain a refund in the succeeding year.
Again in light of our limited scope of review, we affirm FERC’s ruling. FERC’s opinion can be read as focusing not simply on the consequences of the contractual arrangement but on Trunkline’s failure to ensure that some mechanism existed in the contractual arrangement by which it could recoup any overpayment in the previous year in the event the project collapsed, and then as holding Trunkline imprudent because it did not produce evidence that the absence of such a mechanism is consistent with industry practice.
FERC also explained its disallowance of the $14.6 million cost overpayment based upon a careful and reasonable reading the FPC’s 1977 opinion. While the FPC stated that shipping charges should be reviewed with reference to industry practice, FERC pointed out that the FPC also limited recovery to “actually incurred and prudent expenses” and “necessary and proper charges.” 45 FERC 1161,256, at 61,802-03. Based on this language, it was not unreasonable for the FERC to prevent Trunkline from recovering through the rate base payments which overestimated the financial burden.
•k * * * * *
It may well be that FERC, by reversing the ALJ on many of the accounting issues, was really apportioning (roughly) the costs of this ill-fated transaction between the shareholders and the ratepayers—without deciding whether Trunkline’s acceptance of Amendment No. 1 was prudent. But we have no firm basis in the record for con-eluding that, and we must afford FERC substantial deference on these sorts of issues. FERC’s explanations for its positions are on their face reasonable, so we have no warrant to quarrel with this part of its decision.
Accordingly, we remand 89-1610 to FERC for proceedings not inconsistent with this opinion. We deny Trunkline’s petition for review in 89-1492 and affirm the orders in that case issued by FERC.
. The Secretary subsequently transferred ERA’S authority to the Assistant Secretary for Fossil Energy; he did not, however, expand FERC’s jurisdiction, and FERC accordingly may not now contradict any decision of the Assistant Secretary. See id. at 406.
. Trunkline also contends that FERC is barred from addressing the prudence issue because it decided previously that gas imported by Trunk-line after the execution of Amendment No. 1 would be marketable and because the consumer groups failed directly to raise the issue in prior proceedings before it and ERA. We think it plain, however, that the issue and claim preclu-sive effects of prior FERC proceedings are matters which FERC should consider in the first instance, although it may well turn out that Panhandle’s claims do run afoul of one or both of these doctrines.
. Of course, mere ownership of LNG in transit from Algeria does not necessarily confer upon Trunkline the full economic value of that LNG, so nothing we say should be taken to prejudice any possible claim by Trunkline that its rate base should include a component for the cost of the average volume of gas in transit from Algeria.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
songer_geniss
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
NORTH BEACH AMUSEMENT COMPANY, Inc., a Body Corporate, Claimant, Appellant, v. UNITED STATES of America, Appellee.
No. 7225.
United States Court of Appeals Fourth Circuit.
Argued Nov. 8, 1956.
Decided Jan. 7, 1957.
Eldridge Hood Young, Baltimore, Md., for appellant.
Walter E. Black, Jr., U. S. Atty., Baltimore, Md., for appellee.
Before PARKER, Chief Judge, and SOPER and SOBELOFP, Circuit Judges.
SOBELOFF, Circuit Judge.
The subject matter of this appeal is a number of gambling devices of the slot machine variety, seized in Prince George’s County, Maryland, under a libel instituted by the Government. The appellant intervened as claimant and, the facts being undisputed, the Government’s motion for summary judgment was granted. Thereupon, the Marshal was ordered to deliver the machines to the Attorney General for destruction, and this appeal followed.
Title 15 U.S.C. § 1172, 15 U.S.C.A. § 1172, enacted on January 2, 1951, makes it “unlawful knowingly to transport any gambling device to any place in a State, the District of Columbia, or a possession of the United States from any place outside of such State, the District of Columbia, or possession,” but exempts from its provisions transportation into any state or subdivision thereof “which has enacted a law providing for the exemption of such State [or subdivision] from the provisions of this section * * By Section 1177, any gambling device transported or used in violation of the Act shall be seized and forfeited to the United States. The statute is popularly known as the Johnson Act.
The appellant operates slot machines in its amusement park in Calvert County, Maryland, which county is exempt from the Maryland statutory prohibition against use of such gambling devices. Maryland Code of Public Local Laws, Art. 5, Secs. 176-177C. On March 4, 1954, forty-two such machines were delivered to the farm of one of its officers in Prince George’s County, Maryland. Concededly, this county (unlike Calvert County) is subject to the Maryland statute prohibiting the use of gambling devices. Md.Code Annot. 1951, Art. 27, §§ 303-330. The following day, appellant purchased the machines. Although the appellant’s officers say they thought the machines were being sent from Cumberland, Maryland, they were in fact transported from Parkersburg, West Virginia. The machines were thereafter stored at the farm in Prince George’s County awaiting future use, but two of them were taken sixteen months later, to the amusement park in Calvert County. The other forty never left Prince George’s County until they were seized by the agents of the Federal Bureau of Investigation, eighteen months later, on September 8, 1955. At the same time, the two machines which had been taken to the amusement park in Calvert County two months earlier were brought back to Prince George’s County at the instance of the Government agents.
The United States then filed its libel in the District Court, seeking forfeiture of the machines under Section 1177. The appellant intervened as claimant and resisted the forfeiture. The individuals who had transported the machines from West Virginia were brought to trial and convicted under Section 1172 prior to the hearing of this case in the District Court.
The appellant’s primary contention is that the machines are not subject to forfeiture under Section 1177 because the Maryland Legislature, by permitting the use of gambling devices in Calvert County, thereby exempted that county from the prohibition of Section 1172. We think this contention cannot avail the appellant for two reasons: First, because the Maryland statute regarding Calvert County is not effective to create an exemption of that county from the provisions of the Johnson Act; second, because, in any event, these machines were transported into Prince George’s County and remained there from sixteen to eighteen months. There is no basis whatever for claiming an exemption of Prince George’s County from any Maryland legislation against gambling and gambling devices.
The Maryland Act sanctioning the use of gambling devices in Calvert County was originally passed in 1948, prior to the Johnson Act, and although re-enacted in 1951 subsequent to the Johnson Act, it makes no reference to the Congressional enactment. Nor does it state explicitly or in substance that interstate shipment of gambling machines into Calvert County shall not be unlawful. The Act merely immunizes that county from the general statute of the State of Maryland which outlaws gambling machines. While the United States contends that the legislature’s failure to refer to the Johnson Act prevents us from according to Calvert County the exemption permitted by Section 1172, the appellant insists that reference to the federal statute is not required. Appellant’s reasoning is that since Section 1172 is phrased in the “past” tense, it meant to include in the exemption from the Johnson Act any state or subdivision which “has enacted” a statute prior to the passage of the Johnson Act. The appellant further says that as such state statutes obviously could not have made reference to a federal statute not yet in existence, a fair interpretation of the proviso is that the purpose of Section 1172 was to implement existing state legislation relating to gambling by exempting from the prohibitions of the Johnson Act any area where the state permitted gambling.
Our reading of the statute, however, is different. If the exception permitted by Section 1172 were for state statutes allowing the use of gambling machines, then the words “has enacted” could fairly include prior state legislation, such as the law making gambling permissible in Calvert County. But the exception of Section 1172 is far narrower than this. It authorizes a state to exempt itself from the particular restriction of the statute which makes importation of such machines criminal, and not their mere use. Indeed, a state might condone the use of gambling machines within its borders and yet acquiesce in the federal prohibition of their importation from beyond the state’s borders. Since no state could possibly exempt itself from the prohibition of the Johnson Act before its passage, the words “has enacted” cannot reasonably be deemed to have contemplated prior existing state legislation. Consequently, the only rational interpretation of the words “has enacted” is that the tense of the verb is designed to refer to state statutes enacted prior to the commission of the offense of transporting across state lines. Hence, there is no force in the appellant’s argument. We hold that to avoid the special prohibition of the Johnson Act, namely, the importation of gambling devices, a state law must in substance exempt itself or its subdivision therefrom. The Maryland statute does not do so.
Even were we to hold that the Maryland law regarding Calvert County satisfies the exemption provision of Section 1172, we do not perceive how it could comfort appellant. This is not a case where goods destined for one jurisdiction have merely passed through another jurisdiction en route because of geographical necessity. Nor did the property have a merely temporary situs in Prince George’s County while in transit. In such cases, it might be contended that the law in the place of ultimate destination affords protection. In this case it is undisputed that the machines libeled came to rest in Prince George’s County. Forty of them remained there- for eighteen months without ever being taken to Calvert County, and the remaining two were stored in Prince George’s County for sixteen months. By reposing for many months in Prince George’s County after being shipped from West Virginia, the two machines also became clearly subject to the right of the United States to libel them.
Lastly, the appellant contends that since it had no knowledge that the machines were transported in interstate commerce, forfeiture is not permissible. But scienter of the owner is not a material fact in an in rem action against the machines under Section 1177. J. W. Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505, 41 S.Ct. 189, 65 L.Ed. 376; Busic v. United States, 4 Cir., 149 F.2d 794. It is sufficient for forfeiture that the machines were the subject of a violation of Section 1172, which forbids their transportation in interstate commerce “knowingly,” that is to say, on the part of the transporter. This knowledge is not disputed.
The District Judge, it may be observed parenthetically, noted that he did not find as a fact that the owners were without such knowledge, but he held that such knowledge on their part (as distinguished from that of the importers) is immaterial. We agree. Assuming that the purchaser acted in good faith, this has no real bearing on the issue, for “the forfeiture becomes absolute at the commission of the prohibited acts.” Henderson’s Distilled Spirits, 14 Wall. 44, 57, 81 U.S. 44, 57, 20 L.Ed. 815.
The District Court’s order is therefore 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_judrev
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court conclude the decision was subject to judicial review?" While questions of fact are subject to limited review, questions of law are subject to full review. The problem becomes determining which are clear questions of law or fact as they are often "mixed". 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".
SCANWELL LABORATORIES, INC., Appellant, v. John H. SHAFFER, Administrator (Acting) of The Federal Aviation Administration, et al.
No. 22863.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 3, 1969.
Decided Feb. 13, 1970.
Petition for Rehearing Denied May 7, 1970.
Mr. John M. Calimafde, New York City, of the bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Messrs. Paul H. Blaustein, New York City, and James W. Dent, Washington, D. C., were on the brief, for appellant.
Mr. Michael C. Farrar, Atty., Dept, of Justice, with whom Messrs. Thomas A. Flannery, U. S. Atty., and Alan S. Rosen-thal, Atty., Dept, of Justice, were on the brief, for government appellees. Mr. David G. Bress, U. S. Atty., at the time the record was filed, and Mrs. Ellen Lee Park, Asst. U. S. Atty., also entered appearances for government appellees.
Mr. David V. Anthony, Washington, D. C., for appellee, Cutler-Hammer, Inc.
Before BAZELON, Chief Judge, and TAMM and MacKINNON Circuit Judges.
Judge MacKinnon did not participate in the disposition of this case.
TAMM, Circuit Judge:
This is an appeal from an order entered in the district court dismissing the appellant’s complaint for lack of jurisdiction. The district court was mislead by precepts which on careful examination are more rhetorical than guiding. The suit was dismissed on the ground that plaintiff lacked standing to sue; this appeal raises important questions concerning that concept.
The transaction involved resulted from the issuance by the Federal Aviation Administration of an invitation for bids (IFB) for instrument landing systems to be installed at airports to guide aircraft along a predetermined path to a landing approach. Such systems are designed to make the approach of aircraft to airports safer, a result which the FAA sought to attain by carefully circumscribing the criteria for bids in such a way as to preclude bids from producers who did not already have operational systems installed and tested in at least one location.
When the bids for the instrument landing systems were opened, it was discovered that appellant’s was the second lowest bid. The lowest bid was entered by Airborne Instrument Laboratory, a division of Cutler-Hammer, Inc. Appellant alleged in the district court that appellee Cutler-Hammer’s bid was non-responsive to the IFB in that Cutler-Hammer did not have a system installed in one location, nor did it have a certificate of performance based on an FAA flight check. Appellant therefore sought to have the action of the FAA in granting the contract to defendant Cutler-Hammer de-dared null and void as a violation of statutory provisions controlling government contracts and the regulations promulgated thereunder.
The Code of Federal Regulations provides :
To be considered for award, a bid must comply in all material respects with the invitation for bids so that, both as to the method and timeliness of submission and as to the substance of any resulting contract, all bidders may stand on an equal footing and the integrity of the formal advertising system may be maintained.
41 C.F.R. § 1-2.301 (a) (1969) (emphasis added). The regulations go on to state that:
Any bid which fails to conform to the essential requirements of the invitation for bids, such as specifications, delivery schedule or permissible alternates thereto, shall be rejected as non-responsive.
41 C.F.R. § l-2.404-2(a) (1969) (emphasis added).
Appellant urges that it can seek review of a contract award which is in violation of the regulations governing the issuance thereof by virtue of section 10 of the Administrative Procedure Act, 5 U.S.C. § 702 (Supp. IV 1965-68), which provides :
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.
Appellant asserts that the action of the FAA in granting this contract to an allegedly non-responsive bidder is arbitrary, capricious and a violation of the statutory provisions governing contracting, and that it can therefore be set aside under section 10(e) of the Administrative Procedure Act, 5 U.S.C. § 706 (Supp. IV 1965-68).
I. STANDING TO SUE
Whether a frustrated bidder for a government contract has standing to sue, alleging illegality in the manner in which the contract was let, is a question of major importance and can be dealt with only on the basis of a thorough review of the law of standing. Much that can be easily recognized in this area cannot be defined except with the greatest difficulty.
Standing has been called one of the most amorphous concepts in the entire domain of the public law. That this statement is undoubtedly true is evidenced by the mental gymnastics through which the courts have passed in determining standing issues. Professor Davis describes the circuity of reasoning which surrounds these issues as follows:
A plaintiff who seeks to challenge governmental action always has standing if a legal right of the plaintiff is at stake. When a legal right of the plaintiff is not at stake, a plaintiff sometimes has standing and sometimes lacks standing. Circular reasoning is very common, for one of the questions asked in order to determine whether a plaintiff has standing is whether the plaintiff has a legal right, but the question whether the plaintiff has a legal right is the final conclusion, for if the plaintiff has standing his interest is a legally-protected interest, and that is what is meant by a legal right.
The law of standing as developed by the Supreme Court has become an area of incredible complexity. Much that the Court has written appears to have been designed to supply retrospective satisfaction rather than future guidance. The Court has itself characterized its law of standing as a “complicated specialty of federal jurisdiction.” United States ex rel. Chapman v. FPC, 345 U.S. 153, 156, 73 S.Ct. 609, 97 L.Ed. 918 (1953). One cannot help asking why this should be true. Is there something innately different about the standing questions which arise in the state courts which makes them easier of solution than their federal counterparts? Or is it true, as Professor Davis has stated, that “[t]he difference is that the federal courts have invented a law of standing that is too complex for the federal courts to apply consistently, whereas the state courts, relatively speaking, have perceived the merits of the simple proposition that those who are in fact adversely affected should be allowed to challenge”?
In order to answer the question whether there is a valid basis for the complexities surrounding the federal standing criteria, it will be useful to consider the early landmark cases in this area.
A. The Early Cases
The most famous early cases denying standing were the companion cases of Massachusetts v. Mellon and Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), in which the Court said that the Commonwealth could not sue because its own rights were not involved, and that the individual taxpayer could not sue because the interests of the taxpayer are so “comparatively minute and indeterminable” and that the taxpayer’s contentions, even if proved, would have too “remote, fluctuating and uncertain" an effect on payments out of the Treasury. 262 U.S. 487, 43 S.Ct. 597, 67 L.Ed. 1078. (The overruling of Frothingham in Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968), will be discussed infra.) Thus the initial criterion for establishing standing to sue was a showing that a legal right of the plaintiff was violated. As the Court pointed out in Edward Hines Yellow Pine Trustees v. United States, 263 U.S. 143, 148, 44 S.Ct. 72, 68 L.Ed. 216 (1923), the plaintiff “must show also that the order alleged to be void subjects them to legal injury, actual or threatened.”
A subsequent opinion by Mr. Justice Brandéis which clarified that criterion was written the following year in The Chicago Junction Case, 264 U.S. 258, 44 S.Ct. 317, 68 L.Ed. 667 (1924). Standing was upheld therein for six competitors to challenge the validity of an Interstate Commerce Commission decision allowing the New York Central Railroad to acquire an independent terminal railroad in Chicago. The decision was attacked on the ground that there was no evidence to support a finding that the acquisition would be in the public interest as required by the statute. The Court distinguished its prior decision by stating that:
This loss is not the incident of more effective competition. Compare Edward Hines [Yellow Pine] Trustees v. United States, 263 U.S. 143, 148 [44 S.Ct. 72, 68 L.Ed. 216]. It is injury inflicted by denying to the plaintiffs equality of treatment * * *. By reason of [the Interstate Commerce Act] the plaintiffs, being competitors of the New York Central and users of the terminal railroads theretofore neutral, have a special interest in the proposal to transfer the control to that company.
264 U.S. at 267, 44 S.Ct. at 320. Professor Jaffe has construed this case to mean that:
Standing * * * is made to rest on a determination that an interest intended by statute to be protected has been denied that protection. It should be stated somewhat more sharply just what this did and did not mean in the context. It did not mean that there was a right that competition not be diminished. The plaintiff could not win simply by showing such diminution. It did mean that the agency was required by the statute to have regard to competition as one factor in its decision; that it must, if it disregards the effect on competition, give a reasoned explanation. It is in this sense that the “legal right” criterion is most appropriately applied as a generalizing concept to administrative law.
A clear statement of the bases of this principle is found in the Court’s subsequent opinion in Tennessee Elec. Power Co. v. TVA, 306 U.S. 118, 137-138, 59 S.Ct. 366, 83 L.Ed. 543 (1939):
The appellants invoke the doctrine that one threatened with direct and special injury by the act of an agent of the government which, but for the statutory authority for its performance, would be a violation of his legal rights, may challenge the validity of the statute in a suit against the agent. The principle is without application unless the right invaded is a legal right, — one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege. (Emphasis added.)
This case held that a private electric producer did not have standing to challenge governmental subsidy of competition. This line of cases securely entrenched the legal right doctrine in the federal law of standing. Inconsistencies resulting from this doctrine are readily apparent.
The need for a broader criterion was met by the decision of the Court in FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 60 S.Ct. 693, 84 L.Ed. 869 (1940), which is the leading case on the “person aggrieved” criterion for standing to sue. With this case the broader concept of standing gained tremendous ground. In Sanders the Court granted standing to a plaintiff who could not demonstrate an infringement of a legally protected right. This the Court did through its interpretation of the Communications Act of 1934, saying of section 402(b) (2) thereof:
[Congress] may have been of the opinion that one likely to be financially injured by the issue of a license would be the only person having a sufficient interest to bring to the attention of the appellate court errors of law in the action of the Commission in granting the license. It is within the power of Congress to confer such standing to prosecute an appeal.
309 U.S. at 477, 60 S.Ct. at 698.
The only apparent difference between Tennessee Electric Power and Sanders is that in Tennessee Electric there was no statutory provision granting judicial review to the courts, whereas in the latter case there was such an express provision. If this is true, the “legal right” doctrine is certainly dead wherever there is express “person aggrieved” language in the relevant statute, and there is a strong argument for the proposition that the same result should obtain when section 10 of the Administrative Procedure Act applies.
At this point in the development of the law of standing the Court evidently perceived the need to promulgate a standard which would provide redress for legitimate grievances in cases in which the plaintiff asserted a position which protected a public rather than a specific private interest; for this purpose it was recognized that the legal right doctrine was needlessly harsh and restrictive. Thus the Court made clear in Scripps-Howard Radio, Inc. v. FCC, 316 U.S. 4, 14, 62 S.Ct. 875, 86 L.Ed. 1229 (1942), that “these private litigants have standing only as representatives of the public interest.” In using these words to find that a radio station which would in all probability suffer economic injury if the FCC granted a rival license was a person aggrieved under the statute, the Court opened the door to the next logical step, which Judge Frank took the following year.
In Associated Industries of New York State, Inc. v. Ickes, 134 F.2d 694, 704 (2d Cir.), vacated as moot, 320 U.S. 707, 64 S.Ct. 74, 88 L.Ed. 414 (1943), Judge Frank, after emphasizing the above-quoted language from Scripps-Howard, said:
[W]e believe that the usual “standing to sue” cases can be reconciled with the Sanders and Scripps-Howard cases, as follows: While Congress can constitutionally authorize no one, in the absence of an actual justiciable controversy, to bring a suit for the judicial determination either of the constitutionality of a statute or the scope of powers conferred by a statute upon government officers, it can constitutionally authorize one of its own officials, such as the Attorney General, to bring a proceeding to prevent another official from acting in violation of his statutory powers; for then an actual controversy exists, and the Attorney General can properly be vested with authority, in such a controversy, to vindicate the interest of the public or the government. Instead of designating the Attorney General, or some other public officer, to bring such proceedings, Congress can constitutionally enact a statute conferring on any non-official person, or on a designated group of non-official persons, authority to bring a suit to prevent action by an officer in violation of his statutory powers; for then, in like manner, there is an actual controversy, and there is nothing constitutionally prohibiting Congress from empowering any person, official or not, to institute a proceeding involving such a controversy, even if the sole purpose is to vindicate the public interest. Such persons, so authorized, are, so to speak, private Attorney Generals. (Emphasis added.)
This court has read the above language with approbation. In National Coal Ass'n v. FPC, 89 U.S.App.D.C. 135, 191 F.2d 462 (1951), Judge Bazelon, speaking for the court, said:
We agree with the rationale which [the Ickes] case draws from the Supreme Court’s decisions in the Sanders and Scripps-Howard cases: “ * * * one threatened with financial loss through increased competition resulting from a Commission’s order is ‘aggrieved.’ * * * The “ ‘person aggrieved’ review provision [is] a constitutionally valid statute authorizing a class of ‘persons aggrieved’ to bring suit in a Court of Appeals to prevent alleged unlawful official action in order to vindicate the public interest, although no personal substantive interest of such persons had been or would be invaded. * * * ”
89 U.S.App.D.C. 137, 191 F.2d 464-465.
In essence this is precisely what the appellant sought to do in the case at bar; there is no right in Seanwell to have the contract awarded to it in the event the district court finds illegality in the award of the contract to Cutler-Hammer. Thus the essential thrust of appellant’s claim on the merits is to satisfy the pub-lie interest in having agencies follow the regulations which control government contracting. The public interest in preventing the granting of contracts through arbitrary or capricious action can properly be vindicated through a suit brought by one who suffers injury as a result of the illegal activity, but the suit itself is brought in the public interest by one acting essentially as a “private attorney general.”
For this reason one of the things implicit in Judge Frank’s statement strikes us as being of the utmost importance: When the Congress has laid down guidelines to be followed in carrying out its mandate in a specific area, there should be some procedure whereby those who are injured by the arbitrary or capricious action of a governmental agency or official in ignoring those procedures can vindicate their very real interests, while at the same time furthering the public interest. These are the people who will really have the incentive to bring suit against illegal government action, and they are precisely the plaintiffs to insure a genuine adversary case or controversy. As the Supreme Court has recently said, the need is for parties with “such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for the illumination” of complex legal issues. Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).
B. The Administrative Procedure Act
The law of standing was greatly modified by the passage of the Administrative Procedure Act, 5 U.S.C. §§ 551-706 (Supp. IY 1965-68), section 10 of which states that:
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.
5 U.S.C. § 702 (Supp. IV 1965-68).
It has been forcefully argued that the legislative history of this section can be reasonably interpreted to support the “aggrieved in fact” theory because that language appears in the reports of both the Senate and House committees; in each the statement is found that “[tjhis subsection confers a right of review upon any person adversely affected in fact by agency action or aggrieved within the meaning of any statute.” This language did not appear in the statute itself, however, and the Attorney General stated that the provision was reflective of existing law.
In order to meet the objections of various parties to language in the statute, the Senate Report which accompanied the Act stated that:
(1) One agency objects to the recognition of a right of review in public contract and other cases where Congress has not specifically provided for judicial review. But * * * the so-called nonstatutory or common-law type of review was recognized by the Attorney General’s Committee as properly obtaining wherever special statutory review is not provided by Congress and legislation does not indicate that judicial review is precluded or withdrawn. The exceptions stated in the introductory clause of section 10 appear to set forth the proper type of issues not subject to judicial review. If a party can show that he is “suffering legal wrong” as provided in subsection (a), he should have some means of judicial redress.
S. Doc. No.248, 79th Cong., 2d Sess. 37-38 (1946) (emphasis added).
The view that the Act was reflective of existing law was supported by the opinion of this court in Kansas City Power & Light Co. v. McKay, 96 U.S.App.D.C. 273, 225 F.2d 924 (D.C.Cir.), cert. denied, 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780 (1955), in which Judge Washington stated that the section was declaratory of existing law. The weight of that decision has been greatly reduced, however, by the decision of the Supreme Court in Hardin v. Kentucky Utilities Co., 390 U.S. 1, 7, 88 S.Ct. 651, 19 L.Ed.2d 787 (1968), in which the Court held that there was no requirement for a specific statutory grant of standing in actions by competitors to enforce statutes protecting competitive interests. The interpretation of the McKay case is further weakened by the language of the Supreme Court in Abbott Laboratories v. Gardner, 387 U.S. 136, 140-141, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), in which Mr. Justice Harlan said for the Court:
[A] survey of our cases shows that judicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress. * * * Early cases in which this type of judicial review was entertained, e. g., Shields v. Utah Idaho Central R. Co., 305 U.S. 177 [59 S.Ct. 160, 83 L.Ed. 111]; Stark v. Wickard, 321 U.S. 288, [64 S.Ct. 559, 88 L.Ed. 733], have been reinforced by the enactment of the Administrative Procedure Act, which embodies the basic presumption of judicial review to one “suffering legal wrong because of agency action * * The legislative material elucidating that seminal act manifests a congressional intention that it cover a broad spectrum of administrative actions, and this Court has echoed that theme by noting that the Administrative Procedure Act’s “generous review provisions” must be given a “hospitable” interpretation. * * * [I]n Rusk v. Cort, [369 U.S. 367, 82 S.Ct. 787, at 794, 7 L.Ed.2d 809 (1962)] * * * at 379-380, the Court held that only upon a showing of “clear and convincing evidence” of a contrary legislative intent should the courts restrict access to judicial review. (Emphasis added.)
There is no evidence of a contrary legislative intent which affects the appellant’s position in the current case. If anything, the legislative intent with respect to the field of government contracting in general seems to run in precisely the opposite direction, that is, in favor of review.
Appellee makes much of the Supreme Court’s decision in Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108 (1940), in which the Public Contracts Act was interpreted to be an enactment for the protection of the government rather than for those contracting with the government. The plaintiff in that case was therefore denied standing to secure review of wage determinations allegedly arrived at as a result of erroneous statutory interpretation.
It must be remembered that Perkins was decided during the heyday of the legal right doctrine, and before the passage of the Administrative Procedure Act. The Court therefore followed the reasoning of its earlier cases in declaring :
We are of opinion that no legal rights of respondents were shown to have been invaded or threatened in the complaint upon which the injunction * * * was based * * * Respondents, to have standing in court, must show an injury or threat to a particular right of their own, as distinguished from the public’s interest in the administration of the law.
310 U.S. at 125, 60 S.Ct. at 875. Professor Davis has very discerningly seen the fallacy of the Court’s thinking in this decision and has devised a more logical and more consistent basis for viewing such situations:
What the court did not inquire into in the Lukens opinion is why the companies which are adversely affected by the asserted misinterpretation of the statute should not be enlisted as natural law enforcers, whether or not a legal right of the companies is violated. The opinion was written in terms of what “the Government” may do in making contracts; a more refined view would be that government officers were making contracts on behalf of the government, that Congress is also a participant in the exercise of the government’s proprietary functions, and that the most practicable way to keep the government’s contracting officers within their statutory powers is by letting complainants like those in the Lukens case obtain judicial review of the officers’ action.
This is a powerful argument for allowing the plaintiff in the current case the requisite standing to challenge the governmental action of which it complains. Regardless of the merits of plaintiff’s case, it should be granted the right, if possible, to make a prima facie showing that the government’s agents did in fact ignore the Congressional guidelines in the manner in which they handled the granting of the contracts. If there is arbitrary or capricious action on the part of any contracting official, who is going to complain about it, if not the party denied a contract as a result of the alleged illegal activity? It seems to us that it will be a very healthy cheek on governmental action to allow such suits, at least until or unless this country adopts the ombudsman system used so successfully as a watchdog of government activity elsewhere.
Appellee’s reliance on Perkjns is ill founded. In 1952 the Walsh-Healy Public Contracts Act was amended; during floor debate on the Fulbright Amendment, 66 Stat. 308, 41 U.S.C. § 43a (1964), its proponent said;
Mr. FULBRIGHT. * * * There has been no reasonable means by which interpretations might be challenged. It was tried in the Lukens steel case, in which it was held that the parties seeking to challenge the interpretation had no standing in court to do so._ It is our purpose, by this amendment, to overturn that decision.
Mr. SALTONSTALL. So, the amendment of the Senator from Arkansas, we hope, will provide a fairer procedure than the procedure now in effect.
Mr. FULBRIGHT. That is correct. That is the intention. It is simply intended to give a judicial review of the questions referred to by the Senator from Rhode Island, and others which may arise.
******
Mr. PASTORE. I was hoping that the author of this amendment would really give a liberal construction as to what might be meant by “an aggrieved person.” I think I understand the Senator correctly, that anyone who feels himself aggrieved, even though he may not be directly connected with the particular case, might go to court and have the question determined by the court upon review.
Mr. FULBRIGHT. The Senator gets into a very technical question, there, as to whether there is a controversy involved, under the Constitution. I do not think that I could shed much light upon that. But that matter would be submitted to the court for decision as to whether there was a sufficient set of circumstances to support a case.
98 Cong. Rec. 6531 (1952) (emphasis added). This somewheat lengthy excerpt from the Congressional Record is made both to show that the basic approach of the Supreme Court in the Perkins case has been legislatively reversed by the Congress and to demonstrate the Congressional intent that certain matters arising under the Public Contracts Act will be given specific judicial review by Congressional fiat. Given this statement of intent on the part of the Congress, can it be said that to grant standing to the plaintiffs in the current cases would go against the will of the Congress? Does not this phraseology constitute a liberation from the bonds of stare decisis? We hardly think a contrary argument can stand in the face of the quoted language. Clearly the Congress favors review for those who are likely to be injured by illegal agency action in the context of government contracting.
This court had occasion to review the amendments to the Walsh-Healy act in Wirtz v. Baldor Elec. Co., 119 U.S.App.D.C. 122, 337 F.2d 518 (1963), in which it was said:
It is clear that the statutory language saying that persons adversely affected shall be deemed to include “any manufacturer”, et cetera, was inserted for the purpose of specifically negating the Supreme Court’s holding in Perkins v. Lukens Steel, [310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108] * * * and was not intended to confer standing upon every manufacturer or dealer in an industry, whether or not he was adversely affected * * *. Thus, the amendment was intended to bestow litigable rights upon those who need “protection against arbitrary actions,” i. e., as the statute says, those adversely affected or aggrieved. Manufacturers and sup pliers were specifically mentioned in the statute in order to reject clearly the Supreme Court’s holding that notwithstanding an adverse effect the parties had no litigable rights.
119 U.S.App.D.C. at 136-137, 337 F.2d at 532-533 (emphasis added).
The court found this to be the purpose of the amendment largely on the basis of Senator Fulbright’s statement that:
The second part of my amendment provides for judicial review * * * as a protection against arbitrary actions of the Secretary of Labor. It is made necessary by the decision of the Supreme Court in the Lukens Steel case. This case held that courts have no jurisdiction since no rights of the contractors were involved — doing business with the Government was a privilege and not a right.
98 Cong. Rec. 6246 (1952).
This portion of the legislative history of the amendments to the Public Contracts Act shows without question that there is not only no Congressional intent to limit review under that Act but rather that there is actually an affirmative intent of the legislature to grant review in circumstances which warrant it. Indeed, one of the primary effects of the Fulbright Amendment was to make the Administrative Procedure Act specifically applicable.
The trend of cases, both in this Circuit and in the Supreme Court, indicates that allegations of illegality such as those made by the appellant in the current case are a sufficient basis for standing. This court had occasion to review the application of the Public Contracts Act in Friend v. Lee, 95 U.S.App.D.C. 224, 221 F.2d 96 (1955), and delimited standing under its provisions in the following terms:
Plaintiff contends that the contract between the defendants and Avis is illegal on the ground that it was entered into without previous advertising for proposals, as 41 U.S.C.A. § 5 requires. But assuming arguendo that the statute is applicable and may have been violated, plaintiff, nevertheless, has no standing to sue to invalidate the contract. Statutes regulating the contracting procedures of officers of the Federal Government are enacted solely for the benefit of the Government and confer no enforceable rights upon persons dealing with it. Perkins v. Lukens Steel Co., 1940, [310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108] * * * In consequence, plaintiff cannot contest the award of the contract to Avis, either as a bidder or in his capacity as a citizen generally. * * *
******
* * * Contracting officers of the Federal Government have the duty to select the contract most advantageous to the Government, and advantage is not measured exclusively in terms of price; it includes other factors such as judgment, skill, ability, capacity and integrity. * * * The final selection of a contractor involves discretion and is not subject to review by the judicial branch of the Government. * * * Since plaintiff has alleged no facts which tend to show that defendants have through conspiracy, fraud, malice or coercion abused their discretion in awarding the contract, Alabama Power Co. v. Ickes, 1938, [302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374] * * * does not suggest a different conclusion. * * *
******
We do not need to determine for the purposes of the instant case whether plaintiff has standing to sue under Section 10 of the Administrative Procedure Act * * * as a person suffering a legal wrong, i. e., the arbitrary destruction of his business, or whether the court may proceed in the exercise of its general equitable powers. Suffice it to say, that where, as here, there is a prima facie showing of arbitrariness on the part of Government officials in regulatory action taken by them, sufficient to threaten substantial injury to the party af fected, the injured party is entitled to be heard.
95 U.S.App.D.C. at 227-229, 221 F.2d at 100-102 (emphasis added). This case is clearly on point and, contrary to ap-pellees’ arguments, supports in very explicit terms the position of the appellant.
It is indisputable that the ultimate grant of a contract must be left to the discretion of a government agency; the courts will not make contracts for the ^parties. It is also incontestible that that discretion may not be abused. Surely there are criteria to be taken into consideration other than price; contracting officers may properly evaluate those criteria and base their final decisions upon the result of their analysis. They may not base decisions on arbitrary or capricious abuses of discretion, however,.and..our holding here is that one who makes a prima facie showing alleging such action on the part of an agency or contracting officer has standing to sue under section 10 of the Administrative Procedure Act.
We recently held that a party who submitted a sealed bid for the purchase of oil leases could challenge the grant of the leases to a bidder whose documents were not signed. Superior Oil Co. v. Udall, 133 U.S.App.D.C. 198, 409 F.2d 1115 (1969). It is noted in that case that the Comptroller General has said that:
“ * * * when a bid is nonrespon-sive in a material respect, it cannot be corrected even though the nonrespon-siveness may be due to mistake or oversight."
(133 U.S.App.D.C. at 203, 409 F.2d at 1120; emphasis in original.) In allowing that suit without denying standing to Superior Oil because it was a competitive bidder for a government contract, the court impliedly held that such persons have standing to sue in the event the contract is illegally awarded. This case is clearly on point and materially assists the appellant’s case. More recent statements of this court which specifically relate to the standing issue are also relevant.
Subsequent to the Superior Oil decision this court had the opportunity to review important questions of standing in National Ass’n of Securities Dealers, Inc. v. SEC, 136 U.S.App.D.C. 241, 420 F.2d 83 (1969), petition for cert. filed. 38 U.S.L.W. 3185 (Nov. 18, 1969). Although the court could not agree in that case on the precise basis for granting standing to the plaintiffs it stated in the' brief per curiam portion of the opinion that “[wjhile a majority of the court has reservations about standing, these doubts have been resolved in favor of reaching the merits in cases of this consequence.” 136 U.S.App.D.C. at 242, 420 F.2d at 84. Here again is a statement, this time by this very court, which indicates that the criteria for standing in the federal system are so amorphous that even the judges of the United States Courts of Appeals are in doubt as to the proper guidelines to be followed. We think it time that such doubts were resolved in favor of hearing cases in which the public interest demands a hearing on the merits. As Chief Judge Bazelon said in his concurring opinion (136 U.S.App.D.C. at 254, 420 F.2d at 96):
the basic justification for entertaining competitors’ suits to challenge administrative action as statutory aggrieved parties, intended beneficiaries, or licensees is to vindicate a public interest, and not a private right. The absence of a statutory aid to standing in this case is adventitious, and I would grant appellants standing to assert the public interest without it.
The issue of standing to sue was next raised in this court in Air Reduction Co., Inc. v. Hickel, 137 U.S.App.D.C. 24, 420 F.2d 592 (1969). In that case the court specifically met the contention that the regulations of the Secretary of the Interior are beyond challenge even if not Congressionally authorized, and granted standing to a competitor to protest regulations applicable
Question: Did the court conclude the decision was subject to judicial review? While questions of fact are subject to limited review, questions of law are subject to full review. The problem becomes determining which are clear questions of law or fact as they are often "mixed".
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_appel2_1_2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the 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".
COMPOSITE TECHNOLOGY, INC. and E. Keith Harvey, Appellees, v. UNDERWRITERS AT LLOYD’S, LONDON, Guardian Royal Exchange Assurance, LTD., La Concorde Compagnie D’Assurances S.A. (No. 1 account), La Concorde Compagnie D’Assurances S.A. (No. 2 account), Norwich “Trust” Account, Minster Insurance Company, LTD., Sphere Insurance Company, LTD. (No. 2 account), Drake Insurance Company, LTD. (No. 2 account), Compagnie D’Assurances, Maritimes, Aeriennes and Terestres, S.A., Assurances Generales De France, Gan Incendie Accidents Compagnie Francaise D’Assurances et de Reassurances, Scottish Land Insurance LTD., Andrew Weir Insurance Company, LTD., British Reserve Insurance Company, LTD., British Law Insurance Company, LTD. (No. 2 account), Lombard Insurance Company (U.K.) LTD. (No. 2 account) Road Transport and General Insurance Company, LTD. (“G” account), Appellants.
No. 84-1589.
United States Court of Appeals, Eighth Circuit.
Submitted Jan. 18, 1985.
Decided May 21, 1985.
Thomas C. Walsh, St. Louis, Mo., for appellants.
Larry O’Neal, Kansas City, Mo., for appellees.
Before ARNOLD, Circuit Judge, HENLEY, Senior Circuit Judge, and BOWMAN, Circuit Judge.
BOWMAN, Circuit Judge.
The issue in this case is whether the word “sales” in the liability insurance policy here involved is sufficiently precise and unambiguous to allow for summary judgment based strictly on the language of the policy, without consideration of any extrinsic evidence. The District Court ruled that it was, and granted summary judgment in favor of the insured. We reverse and remand.
I.
A military helicopter crashed near Passaic, Missouri on June 11, 1982. Six members of the United States Air Force were killed. The accident involved a helicopter rotor blade that allegedly had been repaired by Composite Technology, Inc. (CTI). Following the crash, several lawsuits were filed naming CTI, among others, as a defendant and claiming that CTI had negligently performed repairs to the rotor blade of the doomed helicopter.
CTI gave its liability insurance carriers (the Underwriters) timely notice of the crash, and requested that they assume CTI’s defense of the lawsuits arising therefrom and that they provide coverage for any damages awarded. Relying on an exclusion in the policy for “sales to military organizations,” the Underwriters denied any obligation to defend or to provide coverage.
CTI and its president and principal stockholder E. Keith Harvey then filed the present action against the Underwriters to obtain a declaratory judgment of coverage and duty to defend. The Underwriters subsequently agreed to assume the defense of the underlying lawsuits subject to a reservation of rights.
Less than a month after the Underwriters filed their answer to the complaint, CTI moved for summary judgment, arguing that the insurance policy issued to it by the Underwriters unambiguously provides for coverage of any improper repairs by CTI to military helicopters. At the time CTI filed its motion, there had been no discovery.
Denying that the policy affords coverage for liability arising out of repairs performed by CTI for the military, the Underwriters sought to engage in discovery for the purpose of gathering evidence that would shed light upon the language of the policy. They also submitted the insurance application and several affidavits for the same purpose. The District Court, however, concluded that the issues raised by the motion for summary judgment could be resolved within the four corners of the policy. Having thus foreclosed consideration of any extrinsic evidence, the District Court took into account only the language of the policy, and found that “[a] reasonable reading of the pertinent portions of the policy leads to the conclusion that coverage is afforded for liabilities arising out of repairs performed by CTI for military organizations.” Composite Technology, Inc. v. Underwriters at Lloyd’s, London, No. 83-0671, mem. op. at 4 (W.D.Mo. April 2, 1984). Noting that the lawsuits against CTI arising out of the crash of the Air Force helicopter are based on the theory that CTI negligently performed repairs, the District Court granted CTI’s motion for summary judgment. This appeal has followed.
II.
The Underwriters contend that the District Court erred in granting summary judgment in favor of CTI on the basis of the policy language alone, without consideration of the evidence proffered by the Underwriters to show the scope of the policy’s coverage. Where a written contract is ambiguous, resort to parol evidence — evidence extrinsic to the four corners of the instrument — is proper to resolve the ambiguity. See J.E. Hathman, Inc. v. Sigma Alpha Epsilon Club, 491 S.W.2d 261, 264 (Mo.1973). “The meaning of an ambiguous contract is determined in light of the extrinsic circumstances.” Penney v. White, 594 S.W.2d 632, 638 (Mo.App.1980). The question, then, is whether the policy is free from ambiguity. We believe it is not.
The key provision here at issue is paragraph 3 of the schedule attached to the policy:
THE NATURE OF THE ASSURED’S BUSINESS OR OPERATION IN RESPECT OF WHICH THE POLICY IS EFFECTED IS:—
Rotor Blade Repairers operating at Stockton, California and Dallas, Texas in respect of Civil Operations only excluding any liabilities in respect of sales to military organisations, if any[.]
Appendix at 406. This language, hand-tailored for the CTI policy and typewritten on what appears to be a pre-printed form, immediately tells us that the policy covers CTI’s business as “Rotor Blade Repairers,” and that coverage is afforded “in respect of Civil Operations only.” The latter phrase would appear to rule out any coverage whatsoever for military operations, as distinguished from repair services rendered in the civilian sector. Doubt creeps in, however, because of the phrase “excluding any liabilities in respect of sales to military organisations, if any[.]” What is meant by the word “sales”? Was it intended simply to confirm, somewhat redundantly, the apparent total exclusion with respect to military operations, or was it intended to narrow the scope of that exclusion? CTI argues, and the District Court agreed, that “sales” as here used should be read narrowly as meaning only “sales of goods,” resulting in the conclusion that the policy excludes from coverage only sales of goods by CTI to military organizations. The Underwriters argue that “sales” was intended to encompass all transactions with the military, i.e., sales of repair services as well as sales of goods. The word “sales” is quite capable of bearing either meaning and the question is which of the ascribed meanings is in accord with the intention of the parties as of the time they entered the contract. The ambiguity is facially apparent, and is not cured by resort to other provisions of the policy, which provisions, unlike the clause under discussion, consist mostly of boilerplate language. We therefore hold that the District Court erred in determining that the word “sales” was free from ambiguity and therefore also erred in limiting its inquiry to the four corners of the contract. It follows that the order of the District Court granting summary judgment in favor of CTI must be vacated.
Having examined the insurance policy with some care, we wish to emphasize our belief that the boilerplate or standard provisions of the policy are of little help in determining the meaning that should be given to the exclusionary language in issue. The clause in question is a negotiated term. It is the only provision that deals directly with the all-important question of to what extent the policy excludes CTI’s military operations from coverage. Further, this clause gives the appearance of having been written in some haste and without a great deal of care — in striking contrast to the standard provisions of the policy, which obviously are the product of skilled and careful draftsmanship. Thus, we are of the view that the District Court’s reliance on a distinction made in the standard provisions between “sales” and “repairs” is misplaced, and that resort to extrinsic evidence is required to determine whether any such distinction is to be read into the non-standard language in question. For similar reasons, we are not convinced that this is an appropriate case for applying the rule that ambiguous policy language is to be construed against the insurer. In any event, that rule would seem to be singularly inappropriate in this case if on remand the District Court finds, as asserted by the Underwriters, that the exclusionary clause was drafted by CTI’s agent.
Our conclusion that the policy is facially ambiguous with respect to the scope of coverage is dispositive of the arguments of both CTI and the Underwriters for entitlement to summary judgment based on the policy language alone. Because the policy is ambiguous, the intention of the parties can best be determined with the aid of evidence from outside the policy.
The Underwriters invite us to consider the policy, CTI’s insurance application, and the affidavits that were submitted to the District Court and, based thereon, to enter summary judgment in their favor. We decline this invitation. Although the Underwriters’ evidence and arguments in support of their version of the scope of the coverage provided by the policy are not without persuasive force, we believe that the effect of the policy language, the insurance application, and the other evidence should be determined in the first instance by the District Court. Additionally, we note that CTI based its motion for summary judgment on the theory that the policy is free from ambiguity. Consequently, CTI thus far has relied exclusively on the language of the policy, and has not presented affidavits or other extrinsic evidence concerning the scope-of-coverage issue. Moreover, the Underwriters did not request the District Court to enter summary judgment in their favor. In these circumstances, it would be manifestly unfair not to give CTI an opportunity to develop and present extrinsic evidence in support of its position on the coverage issue.
III.
For the reasons set forth above, we reverse the District Court’s order granting summary judgment in favor of CTI, and remand this case for further proceedings consistent with this opinion.
So ordered.
. The two plaintiffs are referred to collectively throughout this opinion as CTI.
. CTI’s claims against the Underwriters for attorneys’ fees and for damages for breach of the duty of good faith and fair dealing have been dismissed with prejudice. CTI’s claim that any punitive damages that may be assessed against it in the underlying lawsuits are within the coverage provided by the Underwriters has been dismissed, without prejudice, as premature.
. The jurisdiction of this Court was invoked in the present appeal under 28 U.S.C. § 1291, which provides that the "courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States.”
Fed.R.Civ.P. 58 provides in part as follows:
Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79(a).
In this case the District Court failed to set forth the judgment on a separate document as required by Rule 58. During the oral argument of this appeal, we raised with counsel the question of whether the decision of the District Court was "final" for the purposes of § 1291, since the judgment was not set forth on a separate document as required by Rule 58. Counsel for both sides indicated their desire to waive the separate-judgment requirement of Rule 58. It further is apparent from the record that the District Court intended the opinion and order from which the appeal was taken to be its final decision in the case. Accordingly, we find that there has been a waiver of the separate-judgment requirement in this appeal and that we properly can assume appellate jurisdiction under 28 U.S.C. § 1291. See Bankers Trust Co. v. Mallis, 435 U.S. 381, 98 S.Ct. 1117, 55 L.Ed.2d 357 (1978). District judges are reminded, however, that the separate-judgment rule is mandatory, and that it plays' an important role in making a judgment "final" and in determining when the time for filing a notice of appeal starts to run.
. We note that in today's service-oriented economy it is commonplace to speak of sales of services as well as of sales of goods. A standard dictionary defines the word “sales" as meaning "operations and activities involved in promoting and selling goods or services," and, alternatively, as "gross receipts." Webster's Third New International Dictionary, p. 2003 (defining the plural of the noun “sale") (1981).
. The Underwriters contend that the District Court erred in failing to consider CTI’s application for insurance (which specifically advised the Underwriters: "military coverage not needed”) as part of the policy. We need not decide whether that contention is correct, for even if we assume it is, we believe our proper course is to remand the case. On remand the District Court should consider the policy language in light of the application, the affidavits already submitted by the Underwriters, and any other relevant evidence the parties may submit.
. Patent ambiguity here being the predicate for the consideration of extrinsic evidence, we need not pursue the interesting question of whether, under Missouri law, extrinsic evidence may be considered to shed light on the meaning of a contractual term that is not facially ambiguous. We do note, however, that Cure v. City of Jefferson, 380 S.W.2d 305 (Mo.1964), and Spychalski v. MFA Life Ins. Co., 620 S.W.2d 388 (Mo.App.1981), support the view that “a court — quite apart from ambiguity or nonambiguity — is entitled to look at more than only the words of undertaking.” Id. at 394.
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:
|
songer_appel1_1_4
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant.
LUMBERMENS MUTUAL CASUALTY COMPANY, Appellant, v. The CONNECTICUT BANK & TRUST CO., N.A., Raymark Corporation, Raymark Industries, Inc., and Raymark Formed Products Company, Appellees.
No. 213, Docket 86-7593.
United States Court of Appeals, Second Circuit.
Argued Sept. 19, 1986.
Decided Dec. 3, 1986.
Wilson M. Brown, III, New York City (Drinker Biddle & Reath, New York City, J. Portis Hicks, Stewart Dalzell, Stephen P. Chawaga, of counsel, Thompson, Weir & Barclay, New Haven, Conn., Robert N. Schmalz, J. Philip Smyth, of counsel), for appellant.
Larry L. Thompson, Chicago, Ill. (Bell, Boyd & Lloyd, Chicago, Ill., Frank K. Heap, Joan S. Kato, of counsel, Anderson, Russell, Kill & Olick, P.C., New York City, Randy Paar, of counsel), for appellees.
Before LUMBARD, OAKES, and MINER, Circuit Judges.
OAKES, Circuit Judge:
Lumbermens Mutual Casualty Company (“Lumbermens”), an insurance company headquartered in Illinois, appeals the stay of its declaratory judgment action against Raymark Industries, Inc., and its related corporations (“Raymark”) in the United States District Court for the District of Connecticut, Ellen Bree Bums, Judge. Stay was granted in favor of a pending state court action in Illinois brought by Zurich Insurance Company (“Zurich”) against Raymark and some of its other insurers in the circuit court of Cook County, Illinois, presenting identical insurance coverage issues. The district court reasoned that because this was a declaratory judgment action it had discretion to stay under Brillhart v. Excess Insurance Company of America, 316 U.S. 491, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942), and did not have to follow the strictures of Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), and Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), which speak of the federal courts’ “virtually unflagging obligation” to exercise its jurisdiction. The court also held that even if Colorado River and Moses H. Cone did apply, the present case involved “exceptional circumstances” warranting a stay because all of Ray-mark’s primary and excess insurers, including Lumbermens, have been joined in the Illinois action. We affirm the stay, although we believe that Colorado River and Moses H. Cone apply.
Raymark is a manufacturer of products containing asbestos and has been named as a defendant in over 30,000 asbestos-related bodily injury lawsuits in which the plaintiffs claim they suffered injury or their decedents died due to exposure to Ray-mark’s products. Since at least 1941 Ray-mark has purchased numerous primary policies of comprehensive liability insurance as well as varying amounts of additional “layers” of excess coverage. See Zurich Insurance Co. v. Raymark Industries, Inc., 144 Ill.App.3d 943, 944, 98 Ill.Dec. 508, 509, 494 N.E.2d 630, 631 (App.Ct.1986); Zurich Insurance Co. v. Northbrook Excess & Surplus Insurance Co., 145 Ill.App.3d 175, 180, 98 Ill.Dec. 512, 515-16, 494 N.E.2d 634, 637-38 (App.Ct.1986).
Lumbermens is a “second-layer” excess insurer of Raymark, its policies being excess to primary coverage provided by Zurich and first-layer excess coverage provided by American Home Insurance Company (“American Home”). Lumbermens’ policies covered a period of only two out of the forty-two years for which Raymark purchased liability insurance and represent only $10,000,000 of Raymark’s total of nearly $400,000,000 of liability insurance coverage.
Over eight years ago Zurich filed an action in Illinois for a declaratory judgment as to when bodily injury triggers coverage under comprehensive general liability policies, naming as defendants Raymark’s other primary insurers. Zurich contended, like Lumbermens in the instant action, that injury triggering coverage occurs at the time of a claimant’s exposure to asbestos while certain other of Raymark’s primary insurers contended that injury triggering coverage occurs only at the time of the claimant’s manifestation of symptoms of an asbestos-related disease. As the First Circuit pointed out in Liberty Mutual Insurance Co. v. Foremost-McKesson, Inc., 751 F.2d 475, 477 (1st Cir.1985), if these two actions were to proceed concurrently there is the real possibility that the two courts might interpret the same standard policy language differently. The First Circuit compared Eagle-Picher Industries, Inc. v. Liberty Mutual Insurance Co., 682 F.2d 12, 19 (1st Cir.1982) (asbestosis “results” when it is manifested), cert. denied, 460 U.S. 1028, 103 S.Ct. 1279, 75 L.Ed.2d 500 (1983), with Keene Corp. v. Insurance Co. of North America, 667 F.2d 1034, 1046 (D.C.Cir.1981) (asbestos causes “injury” at time of exposure), cert. denied, 455 U.S. 1007, 102 S.Ct. 1644, 71 L.Ed.2d 875 (1982).
On September 29, 1983, the Illinois court issued an order relating to triggers of coverage for the primary insurance policies. Three other of Raymark’s first-layer excess insurers were later joined in the Illinois action, see Zurich Insurance Co. v. Raymark Industries, Inc., supra, and on May 6, 1986, Raymark was given leave to join its remaining excess insurers, including Lumbermens, so as to adjudicate the entire coverage dispute in one comprehensive action.
Lumbermens brought this declaratory judgment action in federal court in Connecticut in March 1984. Raymark’s first motion to dismiss or stay the Connecticut action was denied on September 30, 1985, because Lumbermens had not yet been made a party to the Illinois action. Lum-bermens has now been joined in the Illinois action and the district court, on July 17, 1986, granted a renewed motion to stay, giving its reasons in an opinion dated August 4, 1986. We note that Lumbermens did not join the underlying insurers Zurich or American Home in this action, even though it agreed in its policies “[t]o indemnify the insured for such loss as would have been payable under all of the terms of the underlying policy(ies) ... provided the company’s obligation hereunder shall apply only to the ultimate net loss in excess of such underlying insurance.”
We agree with Lumbermens that the district court should have considered Colorado River and Moses H. Cone applicable even though this was a declaratory judgment action. We have applied these cases in a declaratory judgment action, Giardina v. Fontana, 733 F.2d 1047, 1052-53 (2d Cir.1984), as have other courts of appeals, see Mobil Oil Corp. v. City of Long Beach, 772 F.2d 534, 540-42 (9th Cir.1985) (applying Colorado River in diversity case for injunctive and declaratory relief); Liberty Mutual Insurance Co. v. Foremost-McKesson, Inc., 751 F.2d at 476-77 (declaratory judgment as to rights and obligations under liability insurance policies in Massachusetts district court stayed in favor of California state court proceedings under Colorado River and Moses H. Cone). It is true that Justice Brennan’s dissenting opinion in Will v. Calvert Fire Insurance Co., 437 U.S. 655, 670-72, 98 S.Ct. 2552, 2561-62, 57 L.Ed.2d 504 (1978), delineated the unique nature of declaratory judgment actions as he responded to what he perceived to be Justice Rehnquist’s overly broad statement in the plurality opinion that courts are under no compulsion to exercise their jurisdiction and that ultimately “the decision whether to defer to the concurrent jurisdiction of a state court is ... a matter committed to the district court’s discretion.” 437 U.S. at 664, 98 S.Ct. at 2558. In disagreeing with the plurality, Justice Brennan thought that neither the logic nor the holding of Brillhart, a suit for a declaratory judgment, was pertinent in Calvert where federal jurisdiction was nondiscretionary. But as we say, our Giardina case, also a declaratory judgment action, used Colorado River analysis in holding that the district court erred by abstaining from exercising jurisdiction where the plaintiff was being whipsawed by a claim in New York that the federal court should dismiss under the probate exception to federal subject matter jurisdiction while simultaneously the claim was made in the Florida probate court that it lacked subject matter jurisdiction. See 733 F.2d at 1053. In addition, the First Circuit applied Colorado River analysis in the opinion by Judge Timbers, sitting by designation, in Liberty Mutual Insurance Co., a case as close to this one as it possibly can be.
Even under strict application of the “exceptional circumstances test” urged by Lumbermens and following Colorado River and Moses H. Cone, however, on balance we agree with the district court’s granting a stay in this action. The factors that Moses H. Cone requires us carefully to weigh include, first, which court first assumed jurisdiction over any res or property involved in the action; second, the inconvenience of the forum; third, the desirability of avoiding piecemeal litigation; and, fourth, the order in which the courts obtained jurisdiction. 460 U.S. at 15, 103 S.Ct. at 936. The first factor is irrelevant here and, as regards the second, there plainly is no inconvenience to Lumbermens in forcing it to litigate in Illinois, its home state. It is true that the order in which the courts obtained jurisdiction over Lumbermens weighs against a stay, although the other primary and excess insurance companies had been involved in the Illinois litigation for some time. The critical factor to us, however, is the desirability of avoiding piecemeal litigation and the possibility of two interpretations of the same policy language in different courts, leaving the insured possibly with insufficient coverage from the insurers after years of paying premiums. See Liberty Mutual Insurance Co., 751 F.2d at 477. As the First Circuit said in Fuller Co. v. Ramon I. Gil, Inc., 782 F.2d 306, 309-10 (1st Cir.1986), citing Moses H. Cone, the avoidance of piecemeal litigation should be given great weight in the context of declaratory judgment actions because such litigation would complicate and fragment the trial of cases and cause friction between state and federal courts.
Lumbermens looks for support in Bethlehem Contracting Co. v. Lehrer/McGovern, Inc., 800 F.2d 325 (2d Cir.1986), which used Colorado River analysis to reverse dismissal of a diversity action on the basis that “ ‘the balance [of factors is] heavily weighted in favor of the exercise of jurisdiction.’ ” Id. at 327 (emphasis omitted) (quoting Moses H. Cone, 460 U.S. at 16, 103 S.Ct. at 937). But in Bethlehem Contracting, “allowing the federal action to proceed [did] not necessarily create piecemeal litigation.” Id. at 328. That case is thus quite distinguishable.
Lumbermens’ suggestion that the Connecticut action constitutes “the entire controversy” does not detract from the fact that the determination of Raymark’s coverage dispute with any particular insurer necessarily impacts upon the timing of the obligations of the other insurers. Lumbermens’ policies must be considered as part of an inclusive controversy most appropriately decided in a single forum. Cf. Lumen Construction, Inc. v. Brant Construction Co., 780 F.2d 691, 695-96 (7th Cir.1986) (stay proper where “state court litigation [would] probably eliminate the need for any further proceedings in federal court”); Cannady v. Valentin, 768 F.2d 501, 503 (2d Cir.1985) (per curiam) (affirming stay in action concerning emergency shelter for the homeless in favor of ongoing state proceedings). We agree with Raymark that inconsistent judgments as to the respective obligations of Raymark’s excess insurers would make the allocation of indemnity and defense costs and the handling and administration of over 30,000 asbestos-related claims against Raymark absolutely impossible.
Moreover, American Home, whose policies immediately underlie Lumbermens’, is a party in the Illinois action, and Lumbermens’ policies follow the form and specifically incorporate by reference the terms and conditions of the American Home policies. In an insurance coverage dispute such as is here involved, the interest of an insured in binding as many of its insurers as possible to a single adjudication is a factor strongly weighing in favor of maintenance of an inclusive action. See American Motorists Insurance Co. v. Philip Carey Corp., 482 F.Supp. 711 (S.D.N.Y.1980) (federal declaratory judgment action initiated by insurer against insured and two other primary carriers stayed in favor of later-filed state action against fourteen primary and excess carriers).
Lumbermens also argues that considerable progress has been made in the Connecticut action, but such progress wholly relates to discovery consisting of the exchange of requested documents and partial answers to interrogatories. No depositions have been taken and numerous discovery disputes remain. In addition, any discovery taken in the Connecticut action can be utilized, concededly without objection from Raymark, in the Illinois action. It is true that Lumbermens recently has filed a motion for partial summary judgment in Connecticut, but the motion has not even heen fully briefed. The “considerable progress” that Lumbermens claims is strictly illusory.
Finally, Lumbermens argues that Connecticut law may govern its policies, notwithstanding that the policies were issued in New York City, follow the form of policies governed by Illinois law, and cover liabilities of Raymark worldwide. The issue as to which law applies has not been determined nor do we know if Illinois and Connecticut law differ. In any event, state law supplies the rule of decision on the merits and although the presence of state law issues rarely weighs in favor of the surrender of federal jurisdiction, there is nevertheless nothing to indicate that the Illinois state court is incapable of making the appropriate choice of law determination and applying Connecticut law if the court determines that that law governs.
The district court was concerned, as we are, that Lumbermens’ rights will not be adequately protected in the Illinois action, but issues regarding allocation of costs among Raymark’s primary insurers and all issues regarding excess policies have been reserved by the Illinois circuit court judge. The Illinois judge, indeed, has not bound Lumbermens to any interim funding order even though other of Raymark’s second-layer excess insurers have been required to provide interim funding. We note further that the Connecticut federal court action was not dismissed but rather was stayed. Thus, if Lumbermens’ fears of inadequate treatment in Illinois are realized, Lumber-mens can return to the district court, which has retained jurisdiction.
For the reasons above stated, we affirm the district court’s granting of the stay.
. The Bethlehem Contracting court went on to say:
Although there is similarity of parties, Mil-stein is named as an individual defendent only in the federal suit, while eleven of the fourteen defendants in state court are unique to that action. And although the disputes in both the state and federal forums stem from the Bank of America Plaza construction project, Bethlehem's federal suit raises a cause of action in tort against Milstein that has no counterpart in the state litigation.
800 F.2d at 328.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant?
A. bank
B. insurance
C. savings and loan
D. credit union
E. other pension fund
F. other financial institution or investment company
G. unclear
Answer:
|
songer_r_bus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
626 F.2d 1022
In re FTC LINE OF BUSINESS REPORT LITIGATION. Appeal of AMERICAN CYANAMID CO. et al. In re FTC CORPORATE PATTERNS LITIGATION.
Nos. 77-2099, 77-2100.
United States Court of Appeals, District of Columbia Circuit.
Argued Dec. 4, 1978.
Decided May 1, 1980.
William Simon, Washington, D. C., with whom Stuart H. Harris, Harold F. Baker and John DeQ. Briggs, Washington, D. C., were on the brief, for appellants.
John M. Wood, Washington, D. C., for appellee.
Before ROBINSON and MacKINNON, Circuit Judges, and PRATT, United States District Judge for the District of Columbia.
Sitting by designation pursuant to 28 U.S.C. § 292(a) (1976).
Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.
SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
Two law firms dispute the amount that one is owed as reimbursement in its role as liaison counsel in complex litigation over the Federal Trade Commission’s Line of Business Report (LB) and Corporate Patterns Report (CPR) programs. The District Court, without a hearing, ordered one, Howrey & Simon, to pay the other, Reed Smith Shaw & McClay (Reed Smith), sums in excess of $42,000, and Howrey & Simon appeals. We find the court’s disposition informationally inadequate for full appellate review, and accordingly remand the record for additional explanation.
I. BACKGROUND
The series of events giving rise to the instant contest began in 1975 when a number of corporations filed civil actions in the District Courts for the Southern District of New York and the District of Delaware challenging the LB and CPR programs. Responsively to recommendations set forth in the Manual for Complex Litigation, the Delaware District Court elected the expedient of liaison counsel to avoid needless duplication of effort in the cases pending before it. So, in 1976, the court entered an order appointing Reed Smith, the plaintiffs’ nominee, in that capacity on terms negotiated by them.
The order authorized Reed Smith to receive and distribute to counsel for other plaintiffs documents from the court and from defendants, to coordinate appearances of counsel at hearings and court conferences, to call meetings among plaintiffs’ counsel for various purposes, and to perform other administrative functions “expressly authorized by further Order of the Court.” The order also included this further provision:
For the foregoing administrative duties and functions, as liaison counsel shall perform pursuant to Order of the Court, liaison counsel shall be reimbursed periodically, not less often than quarterly, by plaintiffs, per capita, for the expense and time involved in preparation, duplication and distribution of court orders, notices, and other papers designated for distribution by liaison counsel to plaintiffs and for other administrative services rendered, pursuant to paragraphs 1 through 4 above or other Order or direction of the Court.
Reed Smith issued its first statement under this provision about two months later, covering February-April, 1976, and Howrey & Simon promptly paid its $7,110 share without apparent objection. On August 30,1976, Reed Smith sent Howrey & Simon a second statement, this time showing $11,-791.70 due, and the latter immediately requested an itemized breakdown. After-wards, as relations between them began to deteriorate, Howrey & Simon refused to pay anything unless and until Reed Smith deleted reimbursement for items that, in the opinion of Howrey & Simon, were not within the scope of the Delaware court’s order. This Reed Smith would not do, and the two firms, lawyerly negotiating skills notwithstanding, found themselves at an impasse.
Meanwhile, the amount in dispute continued to grow. By April of 1976, all of the LB and CPR litigation in Delaware and the Southern District of New York had been transferred to the District Court for the District of Columbia. Like its predecessor in Delaware, the District of Columbia court felt a need for liaison counsel, and it too asked the. plaintiffs to draft a proposed order. Ultimately, the court entered orders appointing Reed Smith as coordinating counsel in both cases and, over Howrey & Simon’s objection, incorporating the identical reimbursement provision that had appeared in the Delaware order. As might have been predicted, wrangling over billings continued after the new order, and neither correspondence nor face-to-face discussions succeeded in resolving the conflict.
Finally, in July, 1977, Reed Smith moved the District Court for an order directing Howrey & Simon to pay all amounts allegedly due. Both parties filed lengthy memoranda and voluminous documentation in support of their respective positions. Howrey & Simon requested a hearing on Reed Smith’s motion and raised essentially three objections: that the District Court should have allocated reimbursement on a per-firm rather than a per-client basis, that a substantial portion of the reimbursement sought was for activities beyond the compass of the court’s order, and that much of what was authorized by the order had been billed at disproportionately high rates. In particular, Howrey & Simon urged that amounts billed at Reed Smith’s usual commercial rates were actually attorney’s fees, and as such were not properly awardable.
The District Court reached its decision without a hearing. In a memorandum opinion, the court held that it was empowered to require reimbursement, and in the proportions previously set, and that it was “readily apparent that [Reed Smith’s] services and disbursements were well within the scope of the authority granted by [its earlier] order.” The court also noted that Howrey & Simon was the only firm that had not paid its allocated share of liaison counsel’s claimed expenses. Resultantly, Howrey & Simon was directed to pay most of Reed Smith’s charges, which aggregated more than $42,000.
II. THE OBJECTIONS
Howrey & Simon presses here essentially the same arguments it previously advanced in the District Court. We turn now to address each in turn, and that, we find, we can do with relative brevity.
A. The District Court's Power
We have no doubt as to the District Court’s authority to order reimbursement of liaison counsel on appropriate items or to allocate the responsibility for reimbursement in any reasonable manner. Courts are inherently empowered to control their dockets, and to that end to appoint liaison counsel and to assure that counsel will be reimbursed for his financial outlay. To the extent that objection is registered to raw judicial power in these areas, we find it wholly unavailing.
B. The Manner of Reimbursement
The District Court’s decision to require reimbursement on a per-client rather than a per-firm basis was also well within its authority. Howrey & Simon contends that because liaison counsel’s services were rendered directly to law firms, this method of allocation is unfair. True it is that because Howrey & Simon has more clients than any other firm involved in the litigation, the combined assessments against its group of clients are greater than the aggregate levy on clients of any other firm. But every client pays the same amount, and the District Court’s paramount concern— surely immune to condemnation — was fairness to the litigants. Since the economic burden of reimbursement is the client’s and not the attorney’s, no apparent harm to Howrey & Simon flows from the court’s scheme. We do not say that the court could not have adopted a different plan. We do say, however, that the method of allocation chosen by the court was reasonable and within the ambit of its discretion.
C. The Amounts Charged
This leaves only the question whether Reed Smith’s reimbursement items emanated from activities within the scope of the appointment orders and, if so, the further question whether the amounts requested were reasonable. The District Court expressly held that the bulk of the charges were both authorized and fair. The court did not, however, make factual findings or articulate reasons with sufficient particularity to enable suitable review of its holding.
The problem thus confronting us is similar to another which we addressed in the recent past. In Evans v. Sheraton Park Hotel, discussing an award of attorney’s fees by the District Court, we said:
We believe that a meaningful review requires a record that elucidates the factors that contributed to the fee decision and upon which it was based. Certainly it is not conducive to appropriate appellate review where, as here, the reviewing tribunal is completely in the dark as to what the trial judge found concerning the time and labor involved, the rate of compensation, and the aspects he may have deemed of significance.
In the case before us, the District Court’s brief discussion of Howrey & Simon’s claims of ultra vires and unreasonableness leaves us in much the same difficulty. The court’s opinion quoted a recent Third Circuit decision for the proposition that courts should not “ ‘become enmeshed in a meticulous analysis of every detailed facet of the professional representation.’ ” The District Court then proclaimed that “in fact, because it is concerned only with administrative matters and not professional representation, the court’s review will be even more limited.” Concluding at this point, the court merely stated that Reed Smith had sufficiently itemized its expenses, and ordered Howrey & Simon to pay its allotted share.
This exposition explains neither the analysis nor the synthesis underlying the court’s ruling. It thus does not afford an adequate foundation for appellate review on whether the activities for which reimbursement is claimed were within the scope of the appointment orders and, if so, the reasonableness of the amounts claimed. We therefore remand the record for more explicit findings of fact and conclusions on these two issues.
So ordered.
. We explain our use of “reimbursement” in note 14 infra.
. Section 1.90 of the Manual for Complex Litigation (West ed. 1977) provides in pertinent part:
When there are several parties on one or both sides of the case represented by different counsel, the court is confronted with a problem in communicating with counsel and in securing responses from counsel on procedural questions. If these circumstances appear at the preliminary pretrial conference, the court should consider requesting counsel for the parties on each side to select one or more of their number as liaison counsel.
. The Commission’s LB and CPR surveys, undertaken pursuant to 15 U.S.C. § 46(b) (1970), extended from 1972 through 1976. They were an ambitious endeavor to assemble statistical information on the internal workings of several hundred large American corporations. The surveys met with persistent opposition, and the result has been a steady stream of litigation. Our opinion in Appeal of FTC Line of Business Report Litigation, 193 U.S.App.D.C. 300, 595 F.2d 685, cert. denied, 439 U.S. 958, 99 S.Ct. 362, 58 L.Ed.2d 351 (1978), and the Third Circuit’s in A. O. Smith Corp. v. FTC, 530 F.2d 515 (3d Cir. 1976), delineate the background and procedural history of the struggle.
. FTC Corporate Patterns Report Litigation, Misc. No. 76-126 (D.D.C. Oct. 20, 1977) (memorandum and order), Joint Appendix (J. App.) 68 [hereinafter cited as Memorandum and Order].
. See note 2 supra.
. Affidavit of Lee A. Rau ¶¶ 8-10, J. App. 182-183. Rau, an attorney with Reed Smith, was the individual who actually served as coordinator under both the Delaware and District of Columbia orders hereinafter described.
. A. O. Smith Corp. v. FTC, C.A. No. 75-15 (D.Del. Mar. 3, 1976) (order appointing liaison counsel), J. App. 187. See Affidavit of Lee A. Rau [Í 8, J. App. 182. The order also appointed as local liaison counsel the firm of Potter, Anderson & Corroon, which is not involved in the instant controversy.
. A. O. Smith Corp. v. FTC, supra note 7 (order appointing liaison counsel). The text of the order is almost a verbatim copy of the form recommended in the Manual for Complex Litigation, supra note 2, at 178. Such differences in duties of liaison counsel as there are between the form and the order are not germane to this appeal.
. Id. This paragraph likewise was a near-verbatim reproduction of the Manual model, with the notable omission of additional language there suggested:
Liaison counsel shall report to the Court periodically, not less often than_, his time and expenses expended in performing the duties imposed on him by Order of the Court, and, upon approval by the Court, he shall report his accounts to all with notice to each plaintiff of its pro rata share of the cost.
Manual for Complex Litigation, supra note 2, at 178. The order entered made no provision whatsoever for judicial approval of liaison counsel’s charges prior to billing, and had it done so the imbroglio before us might never have occurred. We heartily recommend consideration of inclusion in further liaison-counsel appointment orders of such a provision, for the extra burden thus imposed might well be far outweighed by avoidance of litigation over reasonableness of the charges.
. Letter, Edward T. Tait to Stuart H. Harris, May 28, 1976, J. App. 190, and enclosure, J. App. 191.
. Letter, Stuart H. Harris to Edward T. Tait, June 3, 1976, J. App. 192. Cf. Letter, Stuart H. Harris to Richard F. Corroon, June 28, 1976, J. App. 193 (making payment, similarly without objection, to local liaison counsel).
. Statement of August 30, 1976, J. App. 196.
. Letter, Harold F. Baker to Edward T. Tait, Sept. 9, 1976, J. App. 197.
. We recognize that the word “reimburse” in its usual sense contemplates a repayment of costs incurred — actual out-of-pocket expenses — and ordinarily does not include any element of profit. One of Howrey & Simon’s contentions is that in some items Reed Smith sought compensation — more than simply costs — instead of reimbursement. Since we do not reach that issue at this time, see note 28 infra and accompanying text, throughout this opinion we speak in terms of reimbursement, but that is not to be taken as necessarily an accurate characterization or as a judicial endorsement of any of Reed Smith’s claims, and most certainly not as the intimation of a view on the propriety of compensation to liaison counsel.
. See, e. g., Letter, Harold F. Baker to Lee A. Rau, Oct. 5, 1976, J. App. 198-199 (“I suggest that you make the appropriate adjustments . . . and send us a new statement”); Letter, John DeQ. Briggs to Lee A. Rau, Nov. 22, 1976, J. App. 200-201 (summary of Howrey & Simon’s position).
. Letter, Lee A. Rau to John DeQ. Briggs, Nov. 24, 1976, J. App. 202-204 (“[i]n sum, we continue to believe that the final Delaware liaison bill as finally stated is proper”). That letter also warned that unless the parties resolved the matter by the end of November, 1976, Reed Smith would likely seek judicial enforcement of its demand for payment. Id. at 3, J. App. at 204.
. See Civil Docket, In re FTC Corporate Patterns Report Litigation, Misc. No. 76-0126, at cover page, J. App. 1; Civil Docket, In re FTC Line of Business Report Litigation, Misc. No. 76-0127, at cover page, J. App. 36.
. FTC v. Air Prods. & Chem., Inc., Misc. No. 76-64 (D.D.C. July 14, 1976) (memorandum order), J. App. 281.
. In re FTC Line of Business Report Litigation, Civ. No. 76-835 (D.D.C. July 30; 1976) (pretrial order), at ¶ 14, J. App. 236-238; In re FTC Corporate Patterns Report Litigation, Civ. No. 76-842 (D.D.C. July 30, 1976) (pretrial order), at ¶ 14, J. App. 239-241. See text supra at note 9. The cited paragraphs of the two orders are identical.
Howrey & Simon had two basic objections to the orders:
First, we submit the proposed formula for reimbursement is inequitable. There can be no justification for requiring . . that a law firm representing six corporate parties bear six times the expense of a firm representing one corporate party, although each firm would receive but one copy of the same communication.
Secondly, [the order language] is imprecise to the extent it might require coordinating counsel to seek reimbursement for duties other than those ministerial duties described in paragraph A. For example, paragraph B provides for reimbursement for “time” spent by coordinating counsel in “preparation” and distribution of “other papers designated by coordinating counsel” and “for other administrative services rendered.”
Letter, Howrey & Simon by J. Wallace Adair to Hon. Thomas A. Flannery, July 27, 1976, at 2, J. App. 206 (footnotes omitted). This letter was sent before any dispute arose between Howrey & Simon and Reed Smith over amounts charged under these orders, but it was undeniably a precursor of future disagreements.
. On December 21, 1976, Reed Smith’s bill to Howrey & Simon exceeded $10,000 for the LB litigation and $7,000 for the CPR litigation. Exhibits T & U, J. App. 218, 219. On March 4, 1977, Reed Smith billed an additional $7,848 for the LB litigation and $5,468 for the CPR litigation. Exhibits V & W, J. App. 220, 221. Howrey & Simon declined to pay for the same reasons advanced for nonpayment of the final billing in the Delaware litigation. See, e. g.. Letter, Harold F. Baker to Lee A. Rau, Mar. 29, 1977, at 2, J. App. 223 (“[w]e simply cannot believe that the Court envisioned fees in the order of magnitude which you want to levy on our clients”); Letter, Lee A. Rau to Harold F. Baker, May 6, 1977, at 3, J. App. 227 (“such an inference [that Reed Smith had overcharged] is both unwarranted and erroneous”); Letter, Harold F. Baker to Lee A. Rau, May 23, 1977, at 1, J. App. 233 (“[w]e have received your letter of May 6 and regret that nothing stated therein serves to change our views”).
. See Civil Docket, In re FTC Corporate Patterns Report Litigation, supra note 17, at 25, J. App. 28; Civil Docket, In re FTC Line of Business Report Litigation, supra note 17, at 21, J. App. 60.
. Reed Smith suggests that Howrey & Simon “failed to comply with the procedural requirements for requesting ... a hearing.” Brief for Appellees at 29-30. We disagree. Rule l-9(f) of the District Court in pertinent part provides that “a party may in his motion or opposition, specifically request an oral hearing. . . .” In its opposition to Reed Smith’s motion to enforce payment, Howrey & Simon declared at the outset that “[u]nder the law prevailing in this Circuit and elsewhere, a reasonably specific accounting is required, as is an evidentiary hearing and the opportunity for cross-examination, if necessary.” Opposition to Motion to Enforce Order Appointing Liaison Counsel and Orders Appointing Coordinating Counsel, Aug. 15, 1977, at 2, J. App. 101. In the argument section of its memorandum, Howrey & Simon reiterated, “[i]n no event can Reed Smith’s motion be granted on this record, and until an opportunity for an evidentiary hearing has been accorded.” Id. at 14, J. App. 113. And finally, in the conclusion of the memorandum, Howrey & Simon stated that “a hearing may be required upon the completion of discovery, which should be completed within the next month unless such discovery is resisted by movant.” Id. at 28, J. App. 127. Although a more explicit demand for a hearing might be preferable, these requests satisfied the requirements of Local Rule l-9(f).
. Id.
. Id. at 19-26, I. App. 118-125.
. Memorandum and Order, supra note 4, at 4, J. App. 71.
. Id. at 2, J. App. 69.
. Id at 4-5, J. App. 71-72.
. Howrey & Simon points to several decisions on attorney’s fee awards and argues that they limit judicial power to order reimbursement of liaison counsel. Brief for Appellants at 12-19. These cases are relevant only if the District Court has approved charges properly classifiable as compensation rather than expense items, something we cannot ascertain on the present record, see Part 11(C) infra. It is argued that reimbursement items are attorney’s fees, and as such are impermissible, when they represent services performed by an attorney and are billed at the same hourly rate that any legal work done for a paying client would be. But Howrey & Simon offers no authority to support this position, and it certainly seems logical that the nature of the work performed, and not the amount demanded for it, determines whether a given charge is properly to be denominated an attorney’s fee. We need not explore the concept of attorney’s fees now, see Part 11(C) infra, but we note that the cases Howrey & Simon cites involved no more than adjudications over amounts due for professional representation or legal advice — in short, for peculiarly legal services. We leave it to the District Court on remand to explain whether its order encompasses payment for legal as well as administrative activities. If, as appears from the order under review, the tasks assigned Reed Smith under the liaison counsel order were wholly administrative in nature, see text infra at note 39, it follows that to the extent that Howrey & Simon complains that Reed Smith has billed for legal rather than administrative services, the only proper objection is that the activity billed was outside of the scope of the District Court’s appointment order. See notes 33-39 infra and accompanying text.
. As the Supreme Court observed in Landis v. North American Co., 299 U.S. 248, 254-255, 57 S.Ct. 163, 166, 81 L.Ed. 153, 158 (1936), there is “power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. How this can best be done calls for the exercise of judgment, which must weigh competing interests and maintain an even balance.” See Dellinger v. Mitchell, 143 U.S.App.D.C. 60, 64, 442 F.2d 782, 786 (1971).
. Indeed, the commonly stated judicial rationale for the appointment of liaison counsel is the necessity for proper and efficient management of the court’s docket. See, e. g., Vincent v. Hughes Air West, Inc., 557 F.2d 759, 774-775 (9th Cir. 1977); MacAlister v. Guterma, 263 F.2d 65, 67-69 (2d Cir. 1958).
. Brief for Appellants at 42-44.
. In its brief, Howrey & Simon states that it represents 35 and 39 corporate clients in the LB and CPR proceedings, respectively. Brief for Appellants at 7. According to a letter accompanying Reed Smith’s initial reimbursement statement, Howrey & Simon represented 40 of the 88 corporations in the LB and CPR litigation. Letter from Edward T. Tait to Stuart H. Harris, supra note 10. In any event, it is clear that Howrey & Simon’s group of complaining corporations was larger than that of any other law firm involved.
Reed Smith’s practice of combined billing for the LB and CPR proceedings was another subject of the bickering. See, e. g., Brief for Appellants at 41-42. Since we will remand for additional findings and reasons, we have no cause to examine the contentions that this sort of billing was improper.
. Memorandum and Order, supra note 4, at 2, 4, J. App. 69, 71.
. “Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b).” Fed.R.Civ.P. 52(a). Nevertheless, a statement of the factual findings on which the court based its decision often is helpful to appellate review. See, e. g., Tygrett v. Washington, 177 U.S.App.D.C. 355, 359 n.17, 543 F.2d 840, 844 n.17 (1974). Moreover, “regardless of what the rule in terms requires, whenever decision of a matter requires the court to resolve conflicting versions of the facts, findings are desirable and ought to be made.” 9 C. Wright & A. Miller, Federal Practice § 2575, at 649 (1971). See Von der Heydt v. Rogers, 102 U.S.App.D.C. 114, 115, 251 F.2d 17, 18 (1958) (“[a]bsent specific findings to be reviewed in light of the evidence, we cannot make an adequate assessment of [the] issue”). Though findings are not normally required, then, we may properly remand for further elucidation when review would be substantially hindered without them. See text infra at note 36. Indeed, that has long been standard practice in this circuit.
. 164 U.S.App.D.C. 86, 503 F.2d 177 (1974).
. Id. at 97, 503 F.2d at 198.
. Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976). This case is usually referred to as Lindy II. Lindy I, an earlier decision on attorney’s fees in the same multidistrict proceeding, is reported at 487 F.2d 161 (3d Cir. 1973).
. Memorandum and Order, supra note 4, at 4, J. App. 71 (quoting Lindy II, supra note 37, at 116). It is important to evaluate the quoted passage in its full context:
We find it necessary also to observe that we did not [in Lindy I] and do not intend that a district court, in setting an attorneys’ fee, become enmeshed in a meticulous analysis of every detailed facet of the professional representation. . . . Once the district court determines the reasonable hourly rates to be applied, for example, it need not conduct a minute evaluation of each phase or category of counsel’s work.
Lindy II, supra note 37, at 116 (emphasis added). It thus becomes evident that the Third Circuit was not advocating a total hands-off attitude in evaluating the reasonableness of fees charged by counsel. Moreover, taken as a whole, the Lindy decision attests to the judicial feeling that a court conducting a review of fees should put considerable effort into determining the accuracy of the billing and even the quality of the attorney’s work. See, e. g., id. at 117 (“the court should appraise the manner in which counsel discharged his or her professional responsibilities”); id. at 118 (“[i]f . . the court is persuaded that an increase or decrease ... is warranted, it should identify those factors supporting its conclusions, state the specific amount by which the basic fee should be altered . . . , and give a brief statement of the reasons therefor”).
. Memorandum and Order, supra note 4, at 4, J. App. 71. The problem with this approach is that the most serious question raised by Howrey & Simon was whether the billing was for administrative activities and thus was within the purview of the order appointing liaison counsel, or rather was for legal services and thus was beyond its contemplation. Only after stating that judicial review would be limited was it “readily apparent” to the District Court that the charges were for activities authorized by the appointment order. That conclusion cannot acceptably be based on the premise stated, for the premise incorporates the conclusion.
. The District Court will, of course, retain full authority to convene a hearing as a possible aid to achieving the objectives of our remand. That we leave to its decision in the first instance. Manifestly, no useful purpose can be served by considering at this stage the hearing issue, see note 22 supra and accompanying text, raised by Howrey & Simon.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
sc_respondent
|
117
|
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.
SCHWEIKER, SECRETARY OF HEALTH AND HUMAN SERVICES v. HANSEN
No. 80-1162.
Decided April 6, 1981
Per Curiam.
On June 12, 1974, respondent met for about 15 minutes with Don Connelly, a field representative of the Social Security Administration (SSA), and orally inquired of him whether she was eligible for “mother’s insurance benefits” under § 202 (g) of the Social Security Act (Act), 64 Stat. 485, as amended, 42 U. S. C. § 402 (g). Connelly erroneously told her that she was not, and she left the SSA office without having filed a written application. By the Act’s terms, such benefits are available only to one who, among other qualifications, “has filed application.” 42 U. S. C. §402 (g)(1)(D). By a regulation promulgated pursuant to the Act, only written applications satisfy the “filed application” requirement. 20 CFR §404.601 (1974). The SSA’s Claims Manual, an internal Administration handbook, instructs field representatives to advise applicants of the advantages of filing written applications and to recommend to applicants who are uncertain about their eligibility that they file written applications. Connelly, however, did not recommend to respondent that she file a written application; nor did he advise her of the advantages of doing so. The question is whether Connelly’s erroneous statement and neglect of the Claims Manual estop petitioner, the Secretary of Health and Human Services, from denying retroactive benefits to respondent for a period in which she was eligible for benefits but had not filed a written application.
Respondent eventually filed a written application after learning in May 1975 that in fact she was eligible. She then began receiving benefits. Pursuant to § 202 (j) (1) of the Act, she also received retroactive benefits for the preceding 12 months, which was the maximum retroactive benefit allowed by the Act. Respondent contended, however, that she should receive retroactive benefits for the 12 months preceding her June 1974 interview with Connelly. An Administrative Law Judge rejected this claim, concluding that Connelly’s erroneous statement and neglect of the Claims Manual did not estop petitioner from determining respondent’s eligibility for benefits only as of the date of respondent’s written application. The Social Security Appeals Council affirmed.
Respondent then brought this lawsuit in the District Court for the District of Vermont, which held that the written-application requirement was “unreasonably restrictive” as applied to the facts of this case. A divided panel of the Court of Appeals for the Second Circuit affirmed. 619 F. 2d 942 (1980). It agreed with petitioner as an initial matter that the regulation requiring a written application is valid and that the Claims Manual has no legally binding effect. But it considered the written-application requirement a mere “procedural requirement” of lesser import than the fact that respondent in June 1974 had been “substantively eligible” for the benefits. Id., at 948. In such circumstances, the majority held, “misinformation provided by a Government official combined with a showing of misconduct (even if it does not rise to the level of a violation of a legally binding rule) should be sufficient to require estoppel.” Ibid. In summarizing its holding, the majority stated that the Government may be estopped “where (a) a procedural not a substantive requirement is involved and (b) an internal procedural manual or guide or some other source of objective standards of conduct exists and supports an inference of misconduct by a Government employee.” Id., at 949.
Judge Friendly dissented. He argued that the majority’s conclusion is irreconcilable with decisions of this Court, e. g., Federal Crop Insurance Corp. v. Merrill, 332 U. S. 380 (1947); Montana v. Kennedy, 366 U. S. 308 (1961); INS v. Hibi, 414 U. S. 5 (1973) (per curiam), and with decisions of other Courts of Appeals, Leimbach v. Califano, 596 F. 2d 300 (CA8 1979); Cheers v. Secretary of HEW, 610 F. 2d 463 (CA7 1979).
We agree with the dissent. This Court has never decided what type of conduct by a Government employee will estop the Government from insisting upon compliance with valid regulations governing the distribution of welfare benefits. In two cases involving denial of citizenship, the Court has declined to decide whether even "affirmative misconduct” would estop the Government from denying citizenship, for in neither case was “affirmative misconduct” involved. INS v. Hibi, supra, at 8-9; Montana v. Kennedy, supra, at 314-315. The Court has recognized, however, “the duty of all courts to observe the conditions defined by Congress for charging the public treasury.” Federal Crop Insurance Corp. v. Merrill, supra, at 385. Lower federal courts have recognized that duty also, and consistently have relied on Merrill in refusing to estop the Government where an eligible applicant has lost Social Security benefits because of possibly erroneous replies to oral inquiries. See Leimbach v. Califano, supra, at 304-305; Cheers v. Secretary of HEW, supra, at 468-469; Goldberg v. Weinberger, 546 F. 2d 477, 481 (CA2 1976), cert. denied. 431 U. S. 937 (1977); Simon v. Califano, 593 F. 2d 121, 123 (CA9 1979); Parker v. Finch, 327 F. Supp. 193, 195 (ND Ga. 1971); Flamm v. Ribicoff, 203 F. Supp. 507, 510 (SDNY 1961). This is another in that line of cases, for we are convinced that Connelly’s conduct' — which the majority conceded to be less than “affirmative misconduct,” 619 F. 2d, at 948 — does not justify the abnegation of that duty.
Connelly erred in telling respondent that she was ineligible for the benefit she sought. It may be that Connelly erred because he was unfamiliar with a recent amendment which afforded benefits to respondent. Id., at 947. Or it may be that respondent gave Connelly too little information for him to know that he was in error. Id., at 955 (Friendly, J., dissenting). But at worst, Connelly’s conduct did not cause respondent to take action, cf. Federal Crop Insurance Corp. v. Merrill, supra, or fail to take action, cf. Montana v. Kennedy, supra, that respondent could not correct at any time.
Similarly, there is no doubt that Connelly failed to follow the Claims Manual in neglecting to recommend that respondent file a written application and in neglecting to advise her of the advantages of a written application. But the Claims Manual is not a regulation. It has no legal force, and it does not bind the SSA. Rather, it is a 13-volume handbook for internal use by thousands of SSA employees, including the hundreds of employees who receive untold numbers of oral inquiries like respondent’s each year. If Connelly’s minor breach of such a manual suffices to estop petitioner, then the Government is put “at risk that every alleged failure by an agent to follow instructions to the last detail in one of a thousand cases will deprive it of the benefit of the written application requirement which experience has taught to be essential to the honest and effective administration of the Social Security Laws.” 619 F. 2d, at 956 (Friendly, J., dissenting). See United States v. Caceres, 440 U. S. 741, 755-756 (1979).
Finally, the majority’s distinction between respondent’s “substantival eligibTility]” and her failure to satisfy a “procedural requirement” does not justify estopping petitioner in this case. Congress expressly provided in the Act that only one who “has filed application” for benefits may receive them, and it delegated to petitioner the task of providing by regulation the requisite manner of application. A court is no more authorized to overlook the valid regulation requiring that applications be in writing than it is to overlook any other valid requirement for the receipt of benefits.
In sum, Connelly’s errors “faipj far short” of conduct which would raise a serious question whether petitioner is estopped from insisting upon compliance with the valid regulation. Montana v. Kennedy, supra, at 314. Accordingly, we grant the motion of respondent for leave to proceed in forma pauperis and the petition for certiorari and reverse the judgment of the Court of Appeals.
It is so ordered.
This regulation has been recodified and now appears at 20 CFR §§404.602-404.614 (1980).
This section provides, in pertinent part:
“An individual who would have been entitled to a benefit under subsec-tio[n] . . . (g) ... of this section for any month after August 1950 had he filed application therefor prior to the end of such month shall be entitled to such benefit for such month if he files application therefor prior to the end of the twelfth month immediately succeeding such month. . . .” 42 U. S. C. §402 (i)(D-
Judicial review of final decisions by the Secretary is authorized by 42 U. S. C. §405 (g).
Justice Marshall cites several cases in which federal courts have applied estoppel against the Government. Post, at 791. In some of the eases, the Government had entered into written agreements which supported the claim of estoppel. E. g., United States v. Lazy FC Ranch, 481 F. 2d 985, 990 (CA9 1973); Walsonavich v. United States, 335 F. 2d 96, 100-101 (CA3 1964). In others, estoppel did not threaten the public fisc as estoppel does here. E. g.. Semaan v. Mumford, 118 U. S. App. D. C. 282, 284, and n. 6, 335 F. 2d 704, 706, and n. 6 (1964). In another, a bank claiming estoppel had erred in certain applications because it had to file before the Government would provide it with necessary information. United States v. Fox Lake State Bank, 366 F. 2d 962 (CA7 1966). We need not consider the correctness of these cases. We do think that they are easily distinguishable from the type of situation presented in this case and the line of cases we rely upon above.
The contention was made in Caceres that a violation of an internal IRS regulation concerning electronic eavesdropping should result in exclusion from trial of the evidence obtained by such eavesdropping. In rejecting this contention, we noted that such a per se rule “would take away from the Executive Department the primary responsibility for fashioning the appropriate remedy for the violation of its regulations. But since the content, and indeed the existence, of the regulations would remain within the Executive's sole authority, the result might well be fewer and less protective regulations. In the long run, it is far better to have rules like those contained in the IRS Manual, and to tolerate occasional erroneous administration of the kind displayed by this record, than either to have no rules except those mandated by statute, or to have them framed in a mere precatory form.” 440 U. S., at 755-756.
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_genresp2
|
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 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.
The HISPANIC SOCIETY OF the NEW YORK CITY POLICE DEPARTMENT INC., Luis A. Salgado, William Morales, Manuel Torres, Valentin Neves, Jr., Individually and on behalf of all those similarly situated, the Guardians Association of the Police Department of the City of New York Inc., Gregory S. Williams, Robert McNair, Timothy Pearson, Individually and on behalf of all those similarly situated, Plaintiffs-Appellees, v. The NEW YORK CITY POLICE DEPARTMENT, Department of Personnel of the City of New York and the City of New York, Defendants-Appellees, Robert Hyman, Dennis Gallagher, Thomas Biscione, Timothy McCarthy, David Kondrup, Thomas Cody, Anthony Tesu, James Latuda, Richard Milla, Emerald Society of the Police Dept. of the City of New York Inc., Columbia Association of the Police Dept. of the City of New York Inc., Shomrim Society of the New York City Police Department Inc., St. Paul Society of the New York City Police Department Inc., Steuben Association of the Police Dept. of the City of New York Inc., Francis Shields, Michael Ward, Helene Rinaldi, Ferdinand Guerra and Peter Mahon, as President of Sergeants Benevolent Association and Sergeants Benevolent Association, Defendants-Intervenors-Appellees, v. Wayne COSTELLO, John Lanigan, Barbara Pichler, Christopher Matejov, Alan Fisher, Ron Mazone, Thomas Collins, Thomas McManus, William Lucas, Mary Donnelly, Gennaro J. Aiello, Anthony M. Lombardo, John Galvin, Phillip McNer-ney, James Muranelli, Richard Wojno, Guliano Schiozzi, Thomas E. Quinn, Dennis Casavillo, Charles Hart, David Veraja, John Houston, Patrick Castoro, James Collins, Lawrence Praino, Michael Siedel, Richard Frick, James Healy, Frank Gaetani, James Lien, Mark Eisenberg, William Moen, Wilson Padilla, Evelyn Marino, Arthur J. Rotella, Thomas Ruskin, John Russo, Patrick Russo, Barney Ryan, Thomas J. Ryan, Michael Ryder, Warren Sam, John Sassano, Mel Schwartz, Herbert Seigal, James Smith, Ann Sowinski, William Spisak, Stanley Tatar, Dennis Terminello, Jill Tomczak, Charles Tora-no, Catherine Volpe, Walter P. Voss, Robert Wagner, William J. Zazeckie, Thomas Moss, Theodore McHugh, Joseph Nicolo-si, Kenneth Otten, Louis Pioli, Tadgh D. McNamee, Terrance McCabe, David Pan-etta, Christopher Haggerty, James G. Schneider, Thomas P. Kelly, Florence Ci-affone, Kevin Sweeney, Howard Allen, Gary Berman, Steven Cairo, Joseph Concannon, Michael Conolly, Maurice Devito, Arthur Flynn, Raymond Gallagher, Kevin Grassing, James C. Kelly, Kevin Kubick, Robert B. Langer, Henry Mahncke, John Marcone, John Mazzoc-chi, Patrick McGinnis, Sergio Mikulus, Kenneth Nilsen, Alan R. Ostoits, Henry Palayo, Anthony Reitano, Robert A. Sow-inski, Joseph Torragrosa, Richard Severi, Rubin Rivera, Alan May, Marc Wolf, William Saunier, Anthony P. Contento, Dominick Petrucelli, Frederick Termini, Kevin Ryan, Morton Adler, Richard J. Ang-ley, Robert Als, Albert Ascolese, Pompeo J. Basile, Lawrence G. Blumenthal, Kevin Boshell, Keith Brinkmann, Daniel Buckley, John J. Carney, Joseph Casella, Harvey Charym, Robert Chille, Gerald Chirico, John Connolly, Frank Corselli, Gary Davis, Edmond J. Decio, Alexander A. DeFrancis, Nicholas Dimuro, James Do-nohue, William Erdogan, Nathan Fishman, Philip Franchina, Calire Gallagher, Carl Gandolfo, John P. Gerrish, Daniel Graser, Ronald V. Greco, Geoffrey Hart, John Holze, Richard Hoover, Robert Iovi-no, John Johnson, Craig Judge, Kevin Kaufman, Kieran Kelly, Daniel Kelly, Timothy Kelly, Patrick J. Kenny, Kevin Kirby, Fran Kripinski, Francis X. La-velle, Anthony Longhitano, James Luon-go, Dennis McCabe, John J. McCann, Kevin L. McDonald, Thomas McDonald, Stanley Meltzer, Ralph Marchitelli, Evelyn Mooney, George Moran, James Mor-eink, Kevin Mullen, Michael D. Nemoy-ten, Daniel P. O’Neill, Joseph Oppromala, Frank R. Paganucci, Edmund Pederson, Joseph Picarello, Ronald Polis, Gerald Pope, Alan Prescott, Robert Pyetel, Ronald W. Rodman, William Romano, John E. Rivers, George S. Reynolds, Samuel P. Reiver, Eileen Regan, Angelo Graniero, Robert Edwards, Thomas J. Gulotta, Ricky Carpen, Kevin Keenan, David Chong, William Dwyer, Edward Harvey, Benjamin Conforto, Anthony Pauline, Gary M. Katz, George J. Meyer, Barry Goldblatt, Robert Tobuck, James Martin, Frank Mandile, Mary Maruffi, James O’Reilly, Gilbert Eaton, Thomas Kennedy, Ellen Hale, Daniel Boylan, Richard Miltenberg, Kevin O’Keefe, Robin Birn-baum, Frank Forte, Michael Pasuale, Martin Roddini, Anthony Celano, Charles Martin, Salvatore Buscemi, Robert Ahern, Stephen Broady, Chris Athanaso-polos, Billie Rivera, Michael Demarfio, Karen Robino, Raymond Mardiney, John Holub, John Toledo, John Wynne, Michael Fiscina, Robert Spitzer, Kenneth Roberts, Richard E. Lagrua, Victor Galante, Brendan Dolan, Fred Schwartz, Robert Mulligan, Walter O’Keefe, Brian O’Reilly, Kevin Fitzpatrick, James Morris, Richard Baebler, Michael McGarvey, Michael Arcardi, Joseph Averso, Angela Amato, Gennaro Aiello, Frank Bergstol, Joseph Balnck, Joseph Brousseau, Joseph Buffolino, William Buryk, Nicholas Bul-zomi, Ronald Bradley, Douglas Brandt, Christopher Buckley, Ronald Betterly, Edward Brajczewski, Nicholas Battista, Diane Broccoli, Darryl Berger, Domenick Canale, Paul Calandro, Thomas Callahan, Roland Capuano, Robert Clancy, William Casey, Martin Connolly, Louis Curcuru-to, A.P. Casano, James Curry, Francis Cush, Michael Campbell, Daniel Collins, Guy Castellano, William Coyne, James Ciaccia, James Christopher, Jr., Timothy Connolly, Robert Dean, Raymond Du-fresne, Brian Dailey, Douglas Brandt, Norman Donoghue, William Dunphy, John English, Mark Eisenberg, Harvey Feit, Dennis Emperor, John Feeney, Todd Fisher, Andrew Foppiano, Stephen Fajfer, John Fitzgerald, Vincent Giam-musso, Richard Gwillym, Harvey Grape, Vincent Giantasio, Fr. Michael Glasser, John Geary, Joseph Giacoppo, Michael Giacoppi, Henry Gross, John Gurtowski, Karl Garbrielsen, Brien Hogan, Thomas Hatch, Thomas Iacopelli, Geoffry Jahn, David Kaiser, Michael Kelly, Stephen Kurz, Edward Kulesa, Richard Kleiner, George Koehler, Daniel Kornblum, John Kloepping, Arthur Kaplan, William Kinz-ler, Nicholas Limoncelli, Robert Lynch, Christine Legrottaglie, Edith Linn, Anthony Lombardo, James Mood, Thomas Moss, John Melillo, Thomas McGovern, Michael R. McGovern, William McNamara, Edward Paroulek, Arthur Peaslee, Roy Popple, Robert Peters, Robert Peyer, Frank Panareese, Joseph Pastorino, Harold Robinson, Robert Renolds, Connie Phelan, Michael Pasquale, Edward Scola-vino, John Scolaro, Donald Skuza, Edward Solomonik, Ronald Shindel, Andrew Sovia, Edward Smith, Jerry Salzman, Joseph Stabile, William Seyc-hell, Michael Trimis, Robert Tarigo, Robert Toohey, Gari Tibaldi, Louis Vingelli, Bernard Wahlen, Jerry Wojcik, Robert Willmarth, Theodore Wess, John Yuknes, John Murphy, Joseph K. Monahan, Warren Molino, Randall Mayer, Peter Malva-sio, Robert Napolitano, John Nickels, Stephen Epstein, Louis Greco, Appellants.
No. 220, Docket 86-7507.
United States Court of Appeals, Second Circuit.
Argued Oct. 16, 1986.
Decided Dec. 8, 1986.
Ronald Podolsky, New York City, for appellants.
Kenneth Kimberling, New York City (Linda Flores, Puerto Rican Legal Defense & Education Fund, Inc., New York City, of counsel), for plaintiffs-appellees Hispanic Society.
Robert David Goodstein, Goodstein and West, New Rochelle, N.Y., of counsel, for plaintiffs-appellees Guardians Ass’n.
Frederick A.O. Schwarz, Jr., Corp. Counsel, June A. Witterschein, Elizabeth Dvor-kin, New York City, of counsel, for defendants-appellees.
Richard K. Walker, Bishop, Lieberman, Cook, Purcell & Reynolds, Washington, D.C., of counsel, for defendants-inter-venors-appellees.
Before FEINBERG, Chief Judge, and WINTER and MAHONEY, Circuit Judges.
WINTER, Circuit Judge:
This appeal is from an order approving the settlement of a classwide claim of employment discrimination. It was argued at the same time as a companion case, Marino v. Ortiz, 806 F.2d 1144 (2d Cir.1986), which has also been decided this day. The underlying action, brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2 et seq. (1982), challenged a sergeants’ examination administered by defendant-appellee New York City Police Department (“NYCPD”). The plaintiffs alleged that the examination had a disparate impact upon black and Hispanic candidates for promotion to the position of sergeant. The settlement approved by the district court called for the successive promotion of blacks and Hispanics who had taken the examination until the alleged disparate impact was eliminated. The appellants, who challenge the settlement as a violation of the fourteenth amendment, are said to be police officers who did not score high enough to be eligible for promotion but did as well or better than the blacks and Hispanics who have been promoted pursuant to the consent decree. Because the appellants are not parties to this litigation, we dismiss their appeal.
BACKGROUND
During June 1983 and April 1984, the NYCPD administered Civil Service Examination No. 2548 to 11,899 candidates for promotion to the rank of sergeant. After scoring the exam, the NYCPD set a cut-off point that produced a list of 1,041 police officers eligible for promotion. The racial/ethnic composition of the group taking the exam was 79.0% white, 12.3% black, and 8.7% Hispanic; the breakdown of the eligible list derived from the test scores was 93.47% white, 2.31% black, and 4.23% Hispanic.
In late 1984, the Hispanic Society, representing Hispanic police officers, and the Guardians Association, representing black officers, filed separate actions in the Southern District against NYCPD and various city officials, alleging employment discrimination in violation of Title VII and other provisions. The complaints alleged that the examination had a disparate impact on black and Hispanic applicants and was not job related. Three groups were permitted to intervene in both cases as codefendants: the Sergeants Benevolent Association (“SBA”), representing over 500 officers on the eligible list who had obtained provisional appointments as sergeants; the Sergeants Eligibles Association (“SEA”), representing officers who were on the eligible list but had not received provisional appointments; and various white ethnic societies and other individual officers (the “Schneider Intervenors”). On June 14, 1985, the district court certified plaintiffs in Hispanic Society as representatives of a class of all Hispanic candidates who had taken Examination No. 2548, pursuant to Fed.R.Civ.P. 239(a) and (b)(2).
After discovery, the parties began several months of settlement negotiations. A proposed settlement agreed to by the plaintiffs, the defendants, SEA, and SBA was submitted to the district court on February 7, 1986. The settlement provided that at least 1,000 police officers on the eligible list would be promoted to sergeant. Black and Hispanic police candidates not on the list were to be added until the racial/ethnic composition of the group of newly promoted sergeants was approximately the same as the racial/ethnic composition of the group of candidates taking the test. Additional black and Hispanic officers would be promoted in rank order on the basis of their raw scores on the technical knowledge portion of the exam.
The settlement also proposed consolidation of the Hispanic Society and Guardians Association actions and the certification of three additional classes: (1) the plaintiffs in Guardians Association as representatives of a class of all black candidates who had taken the examination; (2) SBA as the representative of a class of all officers on the eligible list who had been provisionally appointed to the rank of sergeant; and (3) SEA as the representative of all other officers on the eligible list.
The settlement was conditionally approved on February 7, 1986, and a hearing was scheduled for April 17, 1986. Notice of the proposed settlement and the hearing date was sent to all plaintiffs and inter-venors, and posted in all precinct stations. The Schneider Intervenors, who had not signed the proposed agreement, were the only parties to the action to oppose the settlement.
Objections were also filed by officers who were not on the original eligible list but who claimed to have received scores equal to or higher than the black and Hispanic officers to be promoted pursuant to the settlement. The same counsel who represents the appellants in the instant case was allowed to speak at the hearing and argued that the proposed settlement violated the rights of such officers to equal protection of the laws. He filed a “Request for Modification” on behalf of his clients seeking to have the consent decree modified to provide that they be put on the eligible list and promoted.
Judge Carter approved the settlement on June 16, 1986, specifically rejecting the argument made by appellants’ counsel. Hispanic Society of the New York City Police Dep’t v. New York City Police Dep’t, 40 Empl.Prac.Dec. (CCH) ¶ 36,385, at 43,654-55 (S.D.N.Y.1986). The Schneider Intervenors filed notices of appeal. Approximately 350 other officers (a considerably larger group than filed objections), also filed notices of appeal. The Schneider Intervenors withdrew their appeal, however, leaving the appeal of the 350 officers as the only remaining challenge to the settlement of the case.
DISCUSSION
Appellants, the 350 officers, argue that the settlement agreement violates the fourteenth amendment because it requires the promotion of minorities over nonminorities who achieved the same or better scores on the sergeants’ examination. We cannot consider this argument on the merits, however. Because appellants never moved to intervene in these proceedings, they are not parties to this litigation, and their appeal must be dismissed.
As a general rule, only a party of record in a lawsuit has standing to appeal from a judgment of the district court. United States ex rel. Louisiana v. Jack, 244 U.S. 397, 402, 37 S.Ct. 605, 607, 61 L.Ed. 1222 (1917); Martin-Trigona v. Shiff, 702 F.2d 380, 385 (2d Cir.1983); United States v. McFaddin Express, Inc., 310 F.2d 799, 801 (2d Cir.1962). Parties of record include the original parties and those who have become parties by intervention, substitution, or third-party practice. 9 J. Moore, Moore’s Federal Practice ¶ 203.06, at 3-20 (1986).
There are exceptions to this general rule, but none is relevant to the present matter. The primary exception is when the nonparty has an interest that is affected by the trial court’s judgment. E. g., Martin-Trigona v. Shiff, 702 F.2d at 385-86 (permitting nonparty trustee to appeal from order granting debtor’s habeas corpus petition against bankruptcy judge.) See also United States v. LTV Corp., 746 F.2d 51, 53-54 & nn.5-6 (D.C.Cir.1984); 9 Moore’s Federal Practice ¶ 203.06, at 3-23. In this case, appellants were not on the original eligible list, they have no right to promotion under state law, and they do not allege that the examination discriminated against them. Even if the settlement were invalidated, therefore, they would not be entitled to promotion. Accordingly, they cannot appeal from the settlement as non-parties with an interest in the order below.
Appellants claim to have standing as parties, and to that end point to a “Definition” in the settlement agreement. That definition states:
The “New York City defendants” shall mean and refer to the City of New York, the New York City Police Department, the New York City Department of Personnel, and all officers, employees or agents, whether elected or appointed, of the City of New York, but not including the Hispanic Society plaintiffs, the Guardians Association plaintiffs, the in-tervenor-defendants or any individuals or groups represented by the Hispanic Society plaintiffs, the Guardians Association plaintiffs, or intervenor-defendants.
Appellants assert that they fall within this definition because they are police officers employed by the City of New York. However, the definitions in the settlement, by their very terms, delineate the parties to the agreement, not the parties to the litigation. For example, the settlement defines “intervenor-defendants” to mean the SBA and the SEA. By appellants’ logic, the Schneider Intervenors would be divested of party status because they are not included in that definition. Yet, the Schneider Inter-venors are intervenor-defendants, and were omitted from the settlement definition because they were not signatories to the settlement. Just as the settlement cannot divest a plaintiff or defendant of party status in the litigation, it cannot confer party status on a nonparty.
Further, viewed in context, the definition of “New York City defendants” does not make appellants either parties to the settlement or parties defendant in their individual capacities. This provision of the settlement simply binds them to comply with its terms in their official capacities as employees of the defendants, and does not give them standing to raise their current objections to the settlement as violative of their individual rights.
In Bender v. Williamsport Area School District, — U.S. -, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986), the Supreme Court rejected on jurisdictional grounds a similar attempt to appeal. In that case, high school students brought an action against a school district, members of the school board, and school administrators, challenging certain restrictions on the use of public school premises under the first amendment. The trial court found in favor of the plaintiffs, but granted no relief against any of the school board members in their individual capacities. When the school district decided not to appeal the adverse decision, board member Youngman decided to prosecute the appeal himself. The Supreme Court, acting sua sponte, held that because the judgment was against Youngman only in his official capacity, he had no standing to appeal in his individual capacity. Id. 106 S.Ct. at 1332 (citing Kentucky v. Graham, 473 U.S. 159, 105 S.Ct. 3099, 3106 n. 14, 87 L.Ed.2d 114 (1985); Brandon v. Holt, 469 U.S. 464, 105 S.Ct. 873, 877, 83 L.Ed.2d 878 (1985)). Moreover, Youngman’s status as a board member did not “permit him to ‘step into the shoes of the Board’ and invoke its right to appeal.” Bender, 106 S.Ct. at 1333. The Court also denied Youngman’s claim that he could prosecute the appeal based on his status as a parent, stating, “Since Mr. Youngman was not sued as a parent in the District Court, he had no right to participate in the proceedings in that court in that capacity without first filing an appropriate motion or pleading setting forth the claim or defense that he desired to assert.” Id. at 1335 (footnote omitted).
The lack of jurisdiction is even more obvious in the present case because, unlike Youngman, appellants were never parties in the district court in any capacity. They were included only in the settlement agreement, along with all other employees of the City of New York, merely to ensure that they would be bound by its terms in their official capacities. See Bender, 106 S.Ct. at 1332; Brandon, 105 S.Ct. at 877 (“The course of proceedings ... make[s] it abundantly clear that the action against [defendant] was in his official capacity and only in that capacity.”). See also Alexander v. Todman, 361 F.2d 744, 746 (3d Cir.1966) (“A person who sues or is sued in his official capacity is, in contemplation of law, regarded as a person distinct from the same person in his individual capacity and is a stranger to his rights or liabilities as an individual.”). Appellants’ argument that the settlement agreement made them parties defendant in their individual capacities is thus without merit.
Appellants also claim that filing written objections to the settlement and appearing at the hearing gave them status as parties to the litigation. The fact that appellants were permitted to object to the settlement in the district court does not make them parties, or enable them to appeal from the approval of the settlement. See United States v. LTV Corp., 746 F.2d at 53; Moten v. Bricklayers, Masons & Plasterers International Union, 543 F.2d 224, 227 (D.C.Cir.1976).
Appellants’ predicament results from their steadfast refusal to comply with the requirements for intervention set forth in Fed.R.Civ.P. 24. In dismissing the appeal in Bender, the Supreme Court emphasized the importance of this rule:
Because his status as a parent was obviously different from his official status as a member of the Board, in order to participate as a parent in the District Court litigation it was incumbent upon Mr. Youngman under Rule 24 of the Federal Rules of Civil Procedure to make “timely application” by an appropriate motion “statpng] the grounds” for intervention and “setting forth the claim or defense for which intervention is sought.” Fed. Rule Civ.Proc. 24(a), (c). No such pleading was filed in either of the courts below. It is particularly important to observe these requirements in cases in which the interest of the litigant seeking to appeal diverges from the interest of the party to the suit.
106 S.Ct. at 1335 n. 9 (emphasis added). The need for formal intervention is thus as great as the need for named plaintiffs or defendants to state a well-pleaded claim or defense. See Sanders v. John Nuveen & Co., 463 F.2d 1075, 1082 (7th Cir.) (pleading that accompanies intervention motion must satisfy Fed.R.Civ.P. 7(a) so that “all parties understand the position, claims and nature of relief sought by the prospective intervenors”), cert. denied, 409 U.S. 1009, 93 S.Ct. 443, 34 L.Ed.2d 302 (1972); 3B Moore’s Federal Practice ¶ 24.14.
The present appeal, however, is based on factual assertions that are nowhere set forth in sworn pleading. Although approximately 350 appellants are named, the record contains no affidavits or other sworn allegations describing their individual status as police officers or as candidates for sergeant. (We note that a considerably smaller number filed objections to the settlement.) Because the requirements for intervention as a party have been ignored, the people pursuing this appeal have no more standing than individuals selected at random from a telephone book. Cf. Kentucky Home Mutual Life Insurance Co. v. Duling, 190 F.2d 797, 803 (6th Cir.1951) (holding intervention petition insufficient under Rule 24(c) when it did not state cause of action against defendant but merely stated that intervenors had insurance under the group policy in question). Other individual police officers and white ethnic societies, the Schneider Inter-venors, intervened as parties and vigorously pursued their interests. We perceive no reason why appellants could not have done the same.
Consequently, appellants lack standing to prosecute this appeal, and we have no jurisdiction. We therefore dismiss the appeal. We deny appellees’ motion for sanctions under Fed.R.App.P. 38. We note, however, that any doubt as to the means by which objectors to class settlements should proceed in the future has been eliminated by this opinion.
. The case filed by the Hispanic Society was Hispanic Society v. New York City Police Dep't, No. 84-6628 (S.D.N.Y. filed Sept. 14, 1984), and the action filed by the Guardians Association was Guardians Ass'n. v. New York City Police Dep’t, No. 84-8504 (S.D.N.Y. filed Nov. 26, 1984). The two actions were consolidated in 1986 when the court approved the settlement. See infra.
. The examination had two components, a written technical knowledge test and a video job sample test. The entire exam could not be used to rank the minority candidates because video equipment had been defective at some testing locations.
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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sc_casesourcestate
|
06
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed.
CALIFORNIA v. ACEVEDO
No. 89-1690.
Argued January 8, 1991
Decided May 30, 1991
Blackmun, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’ConnoR, Kennedy, and Souter, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, post, p. 581. White, J., filed a dissenting opinion, post, p. 585. Stevens, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 585.
Robert M. Foster, Supervising Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assistant Attorney General, Harley D. Mayfield, Senior Assistant Attorney General, and Frederick R. Millar, Supervising Deputy Attorney General.
Frederick Westcott Anderson argued the cause for respondent. With him on the brief was Jan Walls Anderson.
Justice Blackmun
delivered the opinion of the Court.
This case requires us once again to consider the so-called “automobile exception” to the warrant requirement of the Fourth Amendment and its application to the search of a closed container in the trunk of a car.
I
On October 28, 1987, Officer Coleman of the Santa Ana, Cal., Police Department received a telephone call from a federal drug enforcement agent in Hawaii. The agent informed Coleman that he had seized a package containing marijuana which was to have been delivered to the Federal Express Office in Santa Ana and which was addressed to J. R. Daza at 805 West Stevens Avenue in that city. The agent arranged to send the package to Coleman instead. Coleman then was to take the package to the Federal Express office and arrest the person who arrived to claim it.
Coleman received the package on October 29, verified its contents, and took it to the Senior Operations Manager at the Federal Express office. At about 10:30 a.m. on October 30, a man, who identified himself as Jamie Daza, arrived to claim the package. He accepted it and drove to his apartment on West Stevens. He carried the package into the apartment.
At 11:45 a.m., officers observed Daza leave the apartment and drop the box and paper that had contained the marijuana into a trash bin. Coleman at that point left the scene to get a search warrant. About 12:05 p.m., the officers saw Richard St. George leave the apartment carrying a blue knapsack which appeared to be half full. The officers stopped him as he was driving off, searched the knapsack, and found 114 pounds of marijuana.
At 12:30 p.m., respondent Charles Steven Acevedo arrived. He entered Daza’s apartment, stayed for about 10 minutes, and reappeared carrying a brown paper bag that looked full. The officers noticed that the bag was the size of one of the wrapped marijuana packages sent from Hawaii. Acevedo walked to a silver Honda in the parking lot. He placed the bag in the trunk of the car and started to drive away. Fearing the loss of evidence, officers in a marked police car stopped him. They opened the trunk and the bag, and found marijuana.
Respondent was charged in state court with possession of marijuana for sale, in violation of Cal. Health & Safety Code Ann. § 11359 (West Supp. 1991). App. 2. He moved to suppress the marijuana found in the car. The motion was denied. He then pleaded guilty but appealed the denial of the suppression motion.
The California Court of Appeal, Fourth District, concluded that the marijuana found in the paper bag in the car’s trunk should have been suppressed. 216 Cal. App. 3d 586, 265 Cal. Rptr. 23 (1990). The court concluded that the officers had probable cause to believe that the paper bag contained drugs but lacked probable cause to suspect that Acevedo’s car, itself, otherwise contained contraband. Because the officers’ probable cause was directed specifically at the bag, the court held that the case was controlled by United States v. Chadwick, 433 U. S. 1 (1977), rather than by United States v. Ross, 456 U. S. 798 (1982). Although the court agreed that the officers could seize the paper bag, it held that, under Chadwick, they could not open the bag without first obtaining a warrant for that purpose. The court then recognized “the anomalous nature” of the dichotomy between the rule in Chadwick and the rule in Ross. 216 Cal. App. 3d, at 592, 265 Cal. Rptr., at 27. That dichotomy dictates that if there is probable cause to search a car, then the entire car—including any closed container found therein—may be searched without a warrant, but if there is probable cause only as to a container in the car, the container may be held but not searched until a warrant is obtained.
The Supreme Court of California denied the State’s petition for review. App. E to Pet. for Cert. 33. On May 14, 1990, Justice O’Connor stayed enforcement of the Court of Appeal’s judgment pending the disposition of the State’s petition for certiorari, and, if that petition were granted, the issuance of the mandate of this Court.
We granted certiorari, 498 U. S. 807 (1990), to reexamine the law applicable to a closed container in an automobile, a subject that has troubled courts and law enforcement officers since it was first considered in Chadwick.
h-i 1 — 1
The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Contemporaneously with the adoption of the Fourth Amendment, the First Congress, and, later, the Second and Fourth Congresses, distinguished between the need for a warrant to search for contraband concealed in “a dwelling house or similar place” and the need for a warrant to search for contraband concealed in a movable vessel. See Carroll v. United States, 267 U. S. 132, 151 (1925). See also Boyd v. United States, 116 U. S. 616, 623-624 (1886). In Carroll, this Court established an exception to the warrant requirement for moving vehicles, for it recognized
“a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” 267 U. S., at 153.
It therefore held that a warrantless search of an automobile, based upon probable cause to believe that the vehicle contained evidence of crime in the light of an exigency arising out of the likely disappearance of the vehicle, did not contravene the Warrant Clause of the Fourth Amendment. See id., at 158-159.
The Court refined the exigency requirement in Chambers v. Maroney, 399 U. S. 42 (1970), when it held that the existence of exigent circumstances was to be determined at the time the automobile is seized. The car search at issue in Chambers took place at the police station, where the vehicle was immobilized, some time after the driver had been arrested. Given probable cause and exigent circumstances at the time the vehicle was first stopped, the Court held that the later warrantless search at the station passed constitutional muster. The validity of the later search derived from the ruling in Carroll that an immediate search without a warrant at the moment of seizure would have been permissible. See Chambers, 399 U. S., at 51. The Court reasoned in Chambers that the police could search later whenever they could have searched earlier, had they so chosen. Id., at 51-52. Following Chambers, if the police have probable cause to justify a warrantless seizure of an automobile on a public roadway, they may conduct either an immediate or a delayed search of the vehicle.
In United States v. Ross, 456 U. S. 798, decided in 1982, we held that a warrantless search of an automobile under the CaiToll doctrine could include a search of a container or package found inside the car when such a search was supported by probable cause. The warrantless search of Ross’ car occurred after an informant told the police that he had seen Ross complete a drug transaction using drugs stored in the trunk of his car. The police stopped the car, searched it, and discovered in the trunk a brown paper bag containing drugs. We decided that the search of Ross’ car was not unreasonable under the Fourth Amendment: “The scope of a warrantless search based on probable cause is no narrower — and no broader — than the scope of a search authorized by a warrant supported by probable cause.” Id., at 823. Thus, “[i]f probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.”' Id., at 825. In Ross, therefore, we clarified the scope of the Carroll doctrine as properly including a “probing search” of compartments and containers within the automobile so long as the search is supported by probable cause. Id., at 800.
In addition to this clarification, Ross distinguished the Carroll doctrine from the separate rule that governed the search of closed containers. See 456 U. S., at 817. The Court had announced this separate rule, unique to luggage and other closed packages, bags, and containers, in United States v. Chadwick, 433 U. S. 1 (1977). In Chadwick, federal narcotics agents had probable cause to believe that a 200-pound double-locked footlocker contained marijuana. The agents tracked the locker as the defendants removed it from a train and carried it through the station to a waiting car. As soon as the defendants lifted the locker into the trunk of the car, the agents arrested them, seized the locker, and searched it. In this Court, the United States did not contend that the locker’s brief contact with the automobile’s trunk sufficed to make the Carroll doctrine applicable. Rather, the United States urged that the search of movable luggage could be considered analogous to the search of an automobile. 433 U. S., at 11-12.
The Court rejected this argument because, it reasoned, a person expects more privacy in his luggage and personal effects than he does in his automobile. Id., at 13. Moreover, it concluded that as “may often not be the case when automobiles are seized,” secure storage facilities are usually available when the police seize luggage. Id., at 13, n. 7.
In Arkansas v. Sanders, 442 U. S. 753 (1979), the Court extended Chadwick’s, rule to apply to a suitcase actually being transported in the trunk of a car. In Sanders, the police had probable cause to believe a suitcase contained marijuana. They watched as the defendant placed the suitcase in the trunk of a taxi and was driven away. The police pursued the taxi for several blocks, stopped it, found the suitcase in the trunk, and searched it. Although the Court had applied the Carroll doctrine to searches of integral parts of the automobile itself, (indeed, in Carroll, contraband whiskey was in the upholstery of the seats, see 267 U. S., at 136), it did not extend the doctrine to the warrantless search of personal luggage “merely because it was located in an automobile lawfully stopped by the police.” 442 U. S., at 765. Again, the Sanders majority stressed the heightened privacy expectation in personal luggage and concluded that the presence of luggage in an automobile did not diminish the owner’s expectation of privacy in his personal items. Id., at 764-765. Cf. California v. Carney, 471 U. S. 386 (1985).
In Ross, the Court endeavored to distinguish between Carroll, which governed the Ross automobile search, and Chad-tuick, which governed the Sanders automobile search. It held that the Carroll doctrine covered searches of automobiles when the police had probable cause to search an entire vehicle, but that the Chadwick doctrine governed searches of luggage when the officers had probable cause to search only a container within the vehicle. Thus, in a Ross situation, the police could conduct a reasonable search under the Fourth Amendment without obtaining a warrant, whereas in a Sanders situation, the police had to obtain a warrant before they searched.
Justice Stevens is correct, of course, that Ross involved the scope of an automobile search. See post, at 592. Ross held that closed containers encountered by the police during a warrantless search of a car pursuant to the automobile exception could also be searched. Thus, this Court in Ross took the critical step of saying that closed containers in cars could be searched without a warrant because of their presence within the automobile. Despite the protection that Sanders purported to extend to closed containers, the privacy interest in those closed containers yielded to the broad scope of an automobile search.
h-i 1 — 1 I — l
The facts m this case closely resemble the facts m Ross. In Ross, the police had probable cause to believe that drugs were stored in the trunk of a particular car. See 456 U. S., at 800. Here, the California Court of Appeal concluded that the police had probable cause to believe that respondent was carrying marijuana in a bag in his car’s trunk. 216 Cal. App. 3d, at 590, 265 Cal. Rptr., at 25. Furthermore, for what it is worth, in Ross, as here, the drugs in the trunk were contained in a brown paper bag.
This Court in Ross rejected Chadwick’s distinction between containers and cars. It concluded that the expectation of privacy in one’s vehicle is equal to one’s expectation of privacy in the container, and noted that “the privacy interests in a car’s trunk or glove compartment may be no less than those in a movable container.” 456 U. S., at 823. It also recognized that it was arguable that the same exigent circumstances that permit a warrantless search of an automobile would justify the warrantless search of a movable container. Id., at 809. In deference to the rule of Chadwick and Sanders, however, the Court put that question to one side. Id., at 809-810. It concluded that the time and expense of the warrant process would be misdirected if the police could search every cubic inch of an automobile until they discovered a paper sack, at which point the Fourth Amendment required them to take the sack to a magistrate for permission to look inside. We now must decide the question deferred in Ross: whether the Fourth Amendment requires the police to obtain a warrant to open the sack in a movable vehicle simply because they lack probable cause to search the entire car. We conclude that it does not.
IV
Dissenters in Ross asked why the suitcase in Sanders was “more private, less difficult for police to seize and store, or in any other relevant respect more properly subject to the warrant requirement, than a container that police discover iñ a probable-cause search of an entire automobile?” Id., at 839-840. We now agree that a container found after a general search of the automobile and a container found in a car after a limited search for the container are equally easy for the police to store and for the suspect to hide or destroy. In fact, we see no principled distinction in terms of either the privacy expectation or the exigent circumstances between the paper bag found by the police in Ross and the paper bag found by the police here. Furthermore, by attempting to distinguish between a container for which the police are specifically searching and a container which they come across in a car, we have provided only minimal protection for privacy and have impeded effective law enforcement.
The line between probable cause to search a vehicle and probable cause to search a package in that vehicle is not always clear, and separate rules that govern the two objects to be searched may enable the police to broaden their power to make warrantless searches and disserve privacy interests. We noted this in Ross in the context of a search of an entire vehicle. Recognizing that under Carroll, the “entire vehicle itself . . . could be searched without a warrant,” we concluded that “prohibiting police from opening immediately a container in which the object of the search is most likely to be found and instead forcing them first to comb the entire vehicle would actually exacerbate the intrusion on privacy interests.” 456 U. S., at 821, n. 28. At the moment when officers stop an automobile, it may be less than clear whether they suspect with a high degree of certainty that the vehicle contains drugs in a bag or simply contains drugs. If the police know that they may open a bag only if they are actually searching the entire car, they may search more extensively than they otherwise would in order to establish the general probable cause required by Ross.
Such a situation is not farfetched. In United States v. Johns, 469 U. S. 478 (1985), Customs agents saw two trucks drive to a private airstrip and approach two small planes. The agents drew near the trucks, smelled marijuana, and then saw in the backs of the trucks packages wrapped in a manner that marijuana smugglers customarily employed. The agents took the trucks to headquarters and searched the packages without a warrant. Id., at 481. Relying on Chadwick, the defendants argued that the search was unlawful. Id., at 482. The defendants contended that Ross was inapplicable because the agents lacked probable cause to search anything but the packages themselves and supported this contention by noting that a search of the entire vehicle never occurred. Id., at 483. We rejected that argument and found Chadwick and Sanders inapposite because the agents had probable cause to search the entire body of each truck, although they had chosen not to do so. Id., at 482-483. We cannot see the benefit of a rule that requires law enforcement officers to conduct a more intrusive search in order to justify a less intrusive one.
To the extent that the Chadwick-Sanders rule protects privacy, its protection is minimal. Law enforcement officers may seize a container and hold it until they obtain a search warrant. Chadwick, 433 U. S., at 13. “Since the police, by hypothesis, have probable cause to seize the property, we can assume that a warrant will be routinely forthcoming in the overwhelming majority of cases. ” Sanders, 442 U. S., at 770 (dissenting opinion). And the police often will be able to search containers without a warrant, despite the Chadwick-Sanders rule, as a search incident to a lawful arrest. In New York v. Belton, 453 U. S. 454 (1981), the Court said:
“[W]e hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.
“It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment.” Id., at 460 (footnote omitted).
Under Belton, the same probable cause to believe that a container holds drugs will allow the police to arrest the person transporting the container and search it.
Finally, the search of a paper bag intrudes far less on individual privacy than does the incursion sanctioned long ago in Carroll. In that case, prohibition agents slashed the upholstery of the automobile. This Court nonetheless found their search to be reasonable under the Fourth Amendment. If destroying the interior of an automobile is not unreasonable, we cannot conclude that looking inside a closed container is. In light of the minimal protection to privacy afforded by the Chadwick-Sanders rule, and our serious doubt whether that rule substantially serves privacy interests, we now hold that the Fourth Amendment does not compel separate treatment for an automobile search that extends only to a container within the vehicle.
V
The Chadwick-Sanders rule not only has failed to protect privacy but also has confused courts and police officers and impeded effective law enforcement. The conflict between the Carroll doctrine cases and the Chadwick-Sanders line has been criticized in academic commentary. See, e. g., Gardner, Searches and Seizures of Automobiles and Their Contents: Fourth Amendment Considerations in a Post-Ross World, 62 Neb. L. Rev. 1 (1983); Latzer, Searching Cars and Their Contents: United States v. Ross, 18 Crim. L. Bull. 381 (1982); Kamisar, The “Automobile Search” Cases: The Court Does Little to Clarify the “Labyrinth” of Judicial Uncertainty, in 3 The Supreme Court: Trends and Developments 1980-1981, p. 69 (D. Opperman ed. 1982). One leading authority on the Fourth Amendment, after comparing Chadwick and Sanders with Carroll and its progeny, observed: “These two lines of authority cannot be completely reconciled, and thus how one comes out in the container-in-the-car situation depends upon which line of authority is used as a point of departure.” 3 W. LaFave, Search and Seizure 63 (2d ed. 1987).
The discrepancy between the two rules has led to confusion for law enforcement officers. For example, when an officer, who has developed probable cause to believe that a vehicle contains drugs, begins to search the vehicle and immediately discovers a closed container, which rule applies? The defendant will argue that the fact that the officer first chose to search the container indicates that his probable cause extended only to the container and that Chadtvick and Sanders therefore require a warrant. On the other hand, the fact that the officer first chose to search in the most obvious location should not restrict the propriety of the search. The Chadwick rule, as applied in Sanders, has devolved into an anomaly such that the more likely the police are to discover drugs in a container, the less authority they have to search it. We have noted the virtue of providing “‘“clear and unequivocal” guidelines to the law enforcement profession.’” Minnick v. Mississippi, 498 U. S. 146, 151 (1990), quoting Arizona v. Roberson, 486 U. S. 676, 682 (1988). The Chadwick-Sanders rule is the antithesis of a “ ‘clear and unequivocal’ guideline.”
Justice Stevens argues that the decisions of this Court evince a lack of confusion about the automobile exception. See post, at 594. The first case cited by the dissent, United States v. Place, 462 U. S. 696 (1983), however, did not involve an automobile at all. We considered in Place the temporary detention of luggage in an airport. Not only was no automobile involved, but the defendant, Place, was waiting at the airport to board his plane rather than preparing to leave the airport in a car. Any similarity to Sanders, in which the defendant was leaving the airport in a car, is remote at best. Place had nothing to do with the automobile exception and is inapposite.
Nor does Justice Stevens’ citation of Oklahoma v. Castleberry, 471 U. S. 146 (1985), support his contention. Cas-tleberry presented the same question about the application of the automobile exception to the search of a closed container that we face here. In Castleberry, we affirmed by an equally divided court. That result illustrates this Court’s continued struggle with the scope of the automobile exception rather than the absence of confusion in applying it.
Justice Stevens also argues that law enforcement has not been impeded because the Court has decided 29 Fourth Amendment cases since Ross in favor of the government. See post, at 600. In each of these cases, the government appeared as the petitioner. The dissent fails to explain how the loss of 29 cases below, not to mention the many others which this Court did not hear, did not interfere with law enforcement. The fact that the state courts and the Federal Courts of Appeals have been reversed in their Fourth Amendment holdings 29 times since 1982 further demonstrates the extent to which our Fourth Amendment jurisprudence has confused the courts.
Most important, with the exception of United States v. Johns, 469 U. S. 478 (1985), and Texas v. Brown, 460 U. S. 730 (1983), the Fourth Amendment cases cited by the dissent do not concern automobiles or the automobile exception. From Carroll through Ross, this Court has explained that automobile searches differ from other searches. The dissent fails to acknowledge this basic principle and so misconstrues and misapplies our Fourth Amendment case law.
The Chadwick dissenters predicted that the container rule would have “the perverse result of allowing fortuitous circumstances to control the outcome” of various searches. 433 U. S., at 22. The rule also was so confusing that within two years after Chadwick, this Court found it necessary to expound on the meaning of that decision and explain its application to luggage in general. Sanders, 442 U. S., at 761-764. Again, dissenters bemoaned the “inherent opaqueness” of the difference between the Carroll and Chadwick principles and noted “the confusion to be created for all concerned.” Id., at 771. See also Robbins v. California, 453 U. S. 420, 425-426 (1981) (listing cases decided by Federal Courts of Appeals since Chadwick had been announced). Three years after Sanders, we returned in Ross to “this troubled area,” 456 U. S., at 817, in order to assert that Sanders had not cut back on Carroll.
Although we have recognized firmly that the doctrine of stare decisis serves profoundly important purposes in our legal system, this Court has overruled a prior case on the comparatively rare occasion when it has bred confusion or been a derelict or led to anomalous results. See, e. g., Complete Auto Transit, Inc. v. Brady, 430 U. S. 274, 288-289 (1977). Sanders was explicitly undermined in Ross, 456 U. S., at 824, and the existence of the dual regimes for automobile searches that uncover containers has proved as confusing as the Chadwick and Sanders dissenters predicted. We conclude that it is better to adopt one clear-cut rule to govern automobile searches and eliminate the warrant requirement for closed containers set forth in Sanders.
VI
The interpretation of the Carroll doctrine set forth m Ross now applies to all searches of containers found in an automobile. In other words, the police may search without a warrant if their search is supported by probable cause. The Court in Ross put it this way:
“The scope of a warrantless search of an automobile . . . is not defined by the nature of the container in which the contraband is secreted. Rather, it is defined by the object of the search and the places in which there is probable cause to believe that it may be found.” 456 U. S., at 824.
It went on to note: “Probable cause to believe that a container placed in the trunk of a taxi contains contraband or evidence does not justify a search of the entire cab.” Ibid. We reaffirm that principle. In the case before us, the police had probable cause to believe that the paper bag in the automobile’s trunk contained marijuana. That probable cause now allows a warrantless search of the paper bag. The facts in the record reveal that the police did not have probable cause to believe that contraband was hidden in any other part of the automobile and a search of the entire vehicle would have been without probable cause and unreasonable under the Fourth Amendment.
Our holding today neither extends the Carroll doctrine nor broadens the scope of the permissible automobile search delineated in Carroll, Chambers, and Ross. It remains a “cardinal principle that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’” Mincey v. Arizona, 437 U. S. 385, 390 (1978), quoting Katz v. United States, 389 U. S. 347, 357 (1967) (footnotes omitted). We held in Ross: “The exception recognized in Carroll is unquestionably one that is ‘specifically established and well delineated.’” 456 U. S., at 825.
Until today, this Court has drawn a curious line between the search of an automobile that coincidentally turns up a container and the search of a container that coincidentally turns up in an automobile. The protections of the Fourth Amendment must not turn on such coincidences. We therefore interpret Carroll as providing one rule to govern all automobile searches. The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.
The judgment of the California Court of Appeal is reversed, and the case is remanded to that court for further proceedings not inconsistent with this opinion.
It is so ordered.
When Officer Coleman returned with a warrant, the apartment was searched and bags of marijuana were found there. We are here concerned, of course, only with what was discovered in the automobile.
Although respondent now challenges this holding, we decline to second-guess the California courts, which have found probable cause. Respondent did not raise the probable-cause question in his Brief in Opposition nor did he cross-petition for resolution of the issue. He also did not raise the point in a cross-petition tó the Supreme Court of California. We therefore do not consider the issue here. See Lytle v. Household Mfg., Inc., 494 U. S. 545, 551, n. 3 (1990); Heckler v. Campbell, 461 U. S. 458, 468-469, n. 12 (1983).
Question: What is the state of the court whose decision the Supreme Court reviewed?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
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sc_caseorigin
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070
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
DANDRIDGE, CHAIRMAN, MARYLAND BOARD OF PUBLIC WELFARE, et al. v. WILLIAMS et al.
No. 131.
Argued December 9, 1969
Decided April 6, 1970
George W. Liebmann, Assistant Attorney General of Maryland, argued the cause for appellants. With him on the briefs were Francis B. Burch, Attorney General, Robert F. Sweeney, Deputy Attorney General, and /. Michael McWilliams, Assistant Attorney General.
Joseph A. Matera argued the cause and filed a brief for appellees.
Thomas C. Lynch, Attorney General, and Elizabeth Palmer, Deputy Attorney General, filed a brief for the State of California as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by Thomas L. Fike for the Legal Aid Society of Alameda County, and by Carl Rachlin, Anthony B. Ching, Peter E. Sitkin, and Steven J. Antler for the Center on Social Welfare Policy and Law et al.
Mr. Justice Stewart
delivered the opinion of the Court.
This case involves the validity of a method used by Maryland, in the administration of an aspect of its public welfare program, to reconcile the demands of its needy citizens with the finite resources available to meet those demands. Like every other State in the Union, Maryland participates in the Federal Aid to Families With Dependent Children (AFDC) program, 42 U. S. C. § 601 et seq. (1964 ed. and Supp. IV), which originated with the Social Security Act of 1935. Under this jointly financed program, a State computes the so-called “standard of need” of each eligible family unit within its borders. See generally Rosado v. Wyman, ante, p. 397. Some States provide that every family shall receive grants sufficient to meet fully the determined standard of need. Other States provide that each family unit shall receive a percentage of the determined need. Still others provide grants to most families in full accord with the ascertained standard of need, but impose an upper limit on the total amount of money any one family unit may receive. Maryland, through administrative adoption of a “maximum grant regulation,” has followed this last course. This suit was brought by several AFDC recipients to enjoin the application of the Maryland maximum grant regulation on the ground that it is in conflict with the Social Security Act of 1935 and with the Equal Protection Clause of the Fourteenth Amendment. A three-judge District Court convened pursuant to 28 U. S. C. § 2281, held that the Maryland regulation violates the Equal Protection Clause. 297 F. Supp. 450. This direct appeal followed, 28 U. S. C. § 1253, and we noted probable jurisdiction, 396 U. S. 811.
The operation of the Maryland welfare system is not complex. By statute the State participates in the AFDC program. It computes the standard of need for each eligible family based on the number of children in the family and the circumstances under which the family lives. In general, the standard of need increases with each additional person in the household, but the incre-merits become proportionately smaller. The regulation here in issue imposes upon the grant that any single family may receive an. upper limit of $250 per month in certain counties and Baltimore City, and of $240 per month elsewhere in the State. The appellees all have large families, so that their standards of need as computed by the State substantially exceed the maximum grants that they actually receive under the regulation. The appellees urged in the District Court that the maximum grant limitation operates to discriminate against them merely because of the size of their families, in violation of the Equal Protection Clause of the Fourteenth Amendment. They claimed further that the regulation is incompatible with the purpose of the Social Security Act of 1935, as well as in conflict with its explicit provisions.
In its original opinion the District Court held that the Maryland regulation does conflict with the federal statute, and also concluded that it violates the Fourteenth Amendment's equal protection guarantee. After reconsideration on motion, the court issued a new opinion resting its determination of the regulation’s invalidity entirely on the constitutional ground. Both the statutory and constitutional issues have been fully briefed and argued here, and the judgment of the District Court must, of course, be affirmed if the Maryland regulation is in conflict with either the federal statute or the Constitution. We consider the statutory question first, because if the appellees’ position on this question is correct, there is no occasion to reach the constitutional issues. Ashwander v. TVA, 297 U. S. 288, 346-347 (Brandeis, J., concurring); Rosenberg v. Fleuti, 374 U. S. 449.
I
The appellees contend that the maximum grant system is contrary to §402 (a) (10) of the Social Security Act, as amended, which requires that a state plan shall
“provide... that all individuals wishing to make application for aid to families with dependent children shall have opportunity to do so, and that aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals.”
The argument is that the state regulation denies benefits to the younger children in a large family. Thus, the appellees say, the regulation is in patent violation of the Act, since those younger children are just as “dependent” as their older siblings under the definition of “dependent child” fixed by federal law. See King v. Smith, 392 U. S. 309. Moreover, it is argued that the regulation, in limiting the amount of money any single household may receive, contravenes a basic purpose of the federal law by encouraging the parents of large families to “farm out” their children to relatives whose grants are not yet subject to the maximum limitation.
It cannot be gainsaid that the effect of the Maryland maximum grant provision is to reduce the per capita benefits to the children in the largest families. Although the appellees argue that the younger and more recently arrived children in such families are totally deprived of aid, a more realistic view is that the lot of the entire family is diminished because of the presence of additional children without any increase in payments. Cf. King v. Smith, supra, at 335 n. 4 (Douglas, J., concurring). It is no more accurate to say that the last child's grant is wholly taken away than to say that the grant of the first child is totally rescinded. In fact, it is the family grant that is affected. Whether this per capita diminution is compatible with the statute is the question here. For the reasons that follow, we have concluded that the Maryland regulation is permissible under the federal law.
In King v. Smith, supra, we stressed the States’ “undisputed power,” under these provisions of the Social Security Act, “to set the level of benefits and the standard of need.” Id., at 334. We described the AFDC enterprise as “a scheme of cooperative federalism,” id., at 316, and noted carefully that “[t]here is no question that States have considerable latitude in allocating their AFDC resources, since each State is free to set its own standard of need and to determine the level of benefits by the amount of funds it devotes to the program.” Id., at 318-319.
Congress was itself cognizant of the limitations on state resources from the very outset of the federal welfare program. The first section of the Act, 42 U. S. C. § 601 (1964 ed., Supp. IV), provides that the Act is
“For the purpose of encouraging the care of dependent children in their own homes or in the homes of relatives by enabling each State to furnish financial assistance and rehabilitation and other services, as jar as practicable under the conditions in such State, to needy dependent children and the parents or relatives with whom they are living to help maintain and strengthen family life and to help such parents or relatives to attain or retain capability for the maximum self-support and personal independence consistent with the maintenance of continuing parental care and protection....” (Emphasis added.)
Thus the starting point of the statutory analysis must be a recognition that the federal law gives each State great latitude in dispensing its available funds.
The very title of the program, the repeated references to families added in 1962, Pub. L. 87-543, § 104 (a)(3), 76 Stat. 185, and the words of the preamble quoted above, show that Congress wished to help children through the family structure. The operation of the statute itself has this effect. From its inception the Act has defined “dependent child” in part by reference to the relatives with whom the child lives. When a “dependent child” is living with relatives, then “aid” also includes payments and medical care to those relatives, including the spouse of the child’s parent. 42 U. S. C. § 606 (b) (1964 ed., Supp. IV). Thus, as the District Court noted, the amount of aid “is... computed by treating the relative, parent or spouse of parent, as the case may be, of the 'dependent child’ as a part of the family unit.” 297 F. Supp., at 455. Congress has been so desirous of keeping dependent children within a family that in the Social Security Amendments of 1967 it provided that aid could go to children whose need arose merely from their parents’ unemployment, under federally determined standards, although the parent was not incapacitated. 42 U. S. C. § 607 (1964 ed., Supp. IV).
The States must respond to this federal statutory concern for preserving children in a family environment. Given Maryland’s finite resources, its choice is either to support some families adequately and others less adequately, or not to give sufficient support to any family. We see nothing in the federal statute that forbids a State to balance the stresses that uniform insufficiency of payments would impose on all families against the greater ability of large families — because of the inherent economies of scale — to accommodate their needs to diminished per capita payments. The strong policy of the statute in favor of preserving family units does not prevent a State from sustaining as many families as it can, and providing the largest families somewhat less than their ascertained per capita standard of need. Nor does the maximum grant system necessitate the dissolution of family bonds. For even if a parent should be inclined to increase his per capita family income by sending a child away, the federal law requires that the child, to be eligible for AFDC payments, must live with one of several enumerated relatives. The kinship tie may be attenuated but it cannot be destroyed.
The appellees rely most heavily upon the statutory requirement that aid “shall be furnished with reasonable promptness to all eligible individuals.” 42 U. S. C. § 602 (a)(10) (1964 ed., Supp. IV). But since the statute leaves the level of benefits within the judgment of the State, this language cannot mean that the “aid” furnished must equal the total of each individual’s standard of need in every family group. Indeed the appellees do not deny that a scheme of proportional reductions for all families could be used that would result in no individual’s receiving aid equal to his standard of need. As we have noted, the practical effect of the Maryland regulation is that all children, even in very large families, do receive - some aid. We find nothing in 42 U. S. C. § 602 (a) (10) (1964 ed., Supp. IY) that requires more than this. So long as some aid is provided to all eligible families and all eligible children, the statute itself is not violated.
This is the view that has been taken by the Secretary of Health, Education, and Welfare (HEW), who is charged with the administration of the Social Security Act and the approval of state welfare plans. The parties have stipulated that the Secretary has, on numerous occasions, approved the Maryland welfare scheme, including its provision of maximum payments to any one family, a provision that has been in force in various forms since 1947. Moreover, a majority of the States pay less than their determined standard of need, and 20 of these States impose máximums on family grants of the kind here in issue. The Secretary has not disapproved any state plan because of its maximum grant provision. On the contrary, the Secretary has explicitly recognized state maximum grant systems.
Finally, Congress itself has acknowledged a full awareness of state maximum grant limitations. In the Amendments of 1967 Congress added to § 402 (a) a subsection, 23:
“[The State shall] provide that by July 1, 1969, the amounts used by the State to determine the needs of individuals will have been adjusted to reflect fully changes in living costs since such amounts were established, and any máximums that the State imposes on the amount of aid paid to families will have been proportionately adjusted.” 81 Stat. 898, 42 U. S. C. § 602 (a) (23) (1964 ed., Supp. IV). (Emphasis added.)
This specific congressional recognition of the state maximum grant provisions is not, of course, an approval of any specific maximum. The structure of specific máxi-mums Congress left to the States, and the validity of any such structure must meet constitutional tests. However, the above amendment does make clear that Congress fully recognized that the Act permits maximum grant regulations.
For all of these reasons, we conclude that the Maryland regulation is not prohibited by the Social Security Act.
II
Although a State may adopt a maximum grant system in allocating its funds available for AFDC payments without violating the Act, it may not, of course, impose a regime of invidious discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment. Maryland says that its maximum grant regulation is wholly free of any invidiously discriminatory purpose or effect, and that the regulation is rationally supportable on at least four entirely valid grounds. The regulation can be clearly justified, Maryland argues, in terms of legitimate state interests in encouraging gainful employment, in maintaining an equitable balance in economic status as between welfare families and those supported by a wage-earner, in providing incentives for family planning, and in allocating available public funds in such a way as fully to meet the needs of the largest possible number of families. The District Court, while apparently recognizing the validity of at least some of these state concerns, nonetheless held that the regulation “is invalid on its face for overreaching,” 297 F. Supp., at 468 — that it violates the Equal Protection Clause “[b]ecause it cuts too broad a swath on an indiscriminate basis as applied to the entire group of AFDC eligibles to which it purports to apply....” 297 F. Supp., at 469.
If this were a case involving government action claimed to violate the First Amendment guarantee of free speech, a finding of “overreaching” would be significant and might be crucial. For when otherwise valid governmental regulation sweeps so broadly as to impinge upon activity protected by the First Amendment, its very overbreadth may make it unconstitutional. See, e. g., Shelton v. Tucker, 364 U. S. 479. But the concept of “overreaching” has no place in this case. For here we deal with state regulation in the social and economic field, not affecting freedoms guaranteed by the Bill of Rights, and claimed to violate the Fourteenth Amendment only because the regulation results in some disparity in grants of welfare payments to the largest AFDC families. For this Court to approve the invalidation of.state economic or social regulation as “overreaching” would be far too reminiscent of an era when the Court thought the Fourteenth Amendment gave it power to strike down state laws “because they may be unwise, improvident, or out of harmony with a particular school of thought.” Williamson v. Lee Optical Co., 348 U. S. 483, 488. That era long ago passed into history. Ferguson v. Skrupa, 372 U. S. 726.
In the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some “reasonable basis,” it does not offend the Constitution simply because the classification “is not made with mathematical nicety or because in practice it results in some inequality.” Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78. “The problems of government are practical ones and may justify, if they do not require, rough accommodations — illogical, it may be, and unscientific.” Metropolis Theatre Co. v. City of Chicago, 228 U. S. 61, 69-70. “A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” McGowan v. Maryland, 366 U. S. 420, 426.
To be sure, the cases cited, and many others enunciating this fundamental standard under the Equal Protection Clause, have in the main involved state regulation of business or industry. The administration of public welfare assistance, by contrast, involves the most basic economic needs of impoverished human beings. We recognize the dramatically real factual difference between the cited cases and this one, but we can find no basis for applying a different constitutional standard. See Snell v. Wyman, 281 E. Supp. 853, aff’d, 393 U. S. 323. It is a standard that has consistently been applied to state legislation restricting the availability of employment opportunities. Goesaert v. Cleary, 335 U. S. 464; Kotch v. Board of River Port Pilot Comm’rs, 330 U. S. 552. See also Flemming v. Nestor, 363 U. S. 603. And it is a standard that is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy.
Under this long-established meaning of the Equal Protection Clause, it is clear that the Maryland maximum grant regulation is constitutionally valid. We need not explore all the reasons that the State advances in justification of the regulation. It is enough that a solid foundation for the regulation can be found in the State’s legitimate interest in encouraging employment and in avoiding discrimination between welfare families and the families of the working poor. By combining a limit on the recipient’s grant with permission to retain money earned, without reduction in the amount of the grant, Maryland provides an incentive to seek gainful employment. And by keying the maximum family AFDC grants to the minimum wage a steadily employed head of a household receives, the State maintains some semblance of an equitable balance between families on welfare and those supported by an employed breadwinner.
It is true that in some AFDC families there may be no person who is employable. It is also true that with respect to AFDC families whose determined standard of need is below the regulatory maximum, and who therefore receive grants equal to the determined standard, the employment incentive is absent. But the Equal Protection Clause does not require that a State must choose between attacking every aspect of a problem or not attacking the problem at all. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61. It is enough that the State’s action be rationally based and free from invidious discrimination. The regulation before us meets that test.
We do not decide today that the Maryland regulation is wise, that it best fulfills the relevant social and economic objectives that Maryland might ideally espouse, or that a more just and humane system could not be devised. Conflicting claims of morality and intelligence are raised by opponents and proponents of almost every measure, certainly including the one before us. But the intractable economic, social, and even philosophical problems presented by public welfare assistance programs are not the business of this Court. The Constitution may impose certain procedural safeguards upon systems of welfare administration, Goldberg v. Kelly, ante, p. 254. But the Constitution does not empower this Court to second-guess state officials charged with the difficult responsibility of allocating limited public welfare funds among the myriad of potential recipients. Cf. Steward Mach. Co. v. Davis, 301 U. S. 548, 584-585; Helvering v. Davis, 301 U. S. 619, 644.
The judgment is reversed.
[For Appendix, see post, p. 488.]
APPENDIX TO OPINION OF THE COURT
The following was the schedule for determining subsistence needs, exclusive of rent, at the time this action was brought. Md. Manual of Dept, of Pub. Welfare, pt. II, Rule 200, Sched. A, p. 27:
STANDARD FOR DETERMINING COST OF SUBSISTENOE NEEDS
Modification of standard for cost
Other schedules set the estimated cost of shelter in the various counties in Maryland. See id., Sched. B — Plan A, p. 29; Sched. B— Plan B, p. 30. The present schedules, which are substantially the same, appear in the Md. Manual of Dept, of Social Services, Rule 200, pp. 33, 35.
49 Stat. 620, as amended, 42 U. S. C. §§301-1394 (1964 ed. and Supp. IV).
Maryland Ann. Code, Art. 88A, § 44A et seq. (1969 Repl. Vol.).
The schedule for determining subsistence needs is set forth in an Appendix to this opinion.
The regulation now provides:
“B. Amount — The amount of the grant is the resulting amount of need when resources are deducted from requirements as set forth in this Rule, subject to a maximum on each grant from each category:
“1. $250 — for local departments under any ‘Plan A’ of Shelter Schedule
“2. $240 — for local departments under any 'Plan B' of Shelter Schedule
“Except that:
“a. If the requirements of a child over 18 are included to enable him to complete high school or training for employment (III-C-3), the grant may exceed the maximum by the amount of such child's needs.
“b. If the resource of support is paid as a refund (VI-B-6),. the grant may exceed the maximum by an amount of such refund. This makes consistent the principle that the amount from public assistance funds does not exceed the maximum.
“c. The maximum may be exceeded by the amount of an emergency grant for items not included in a regular monthly grant. (VIII)
“d. The maximum may be exceeded up to the amount of a grant to a person in one of the nursing homes specified in Schedule D, Section a.
“3. A grant is subject to any limitation established because of insufficient funds.”
Md. Manual of Dept, of Social Services, Rule 200, § X, B, p. 23, formerly Md. Manual of Dept, of Pub. Welfare, pt. II, Rule 200, § VII, 1, p. 20.
In addition, ÁFDC recipients in Maryland may be eligible for certain assistance in kind, including food stamps, public housing, and medical aid. See, e. g., 42 U. S. C. § 1396 et seq. (1964 ed., Supp. IV); 7 U. S. C. §§ 1695-1697. The applicable provisions of state and federal law also permit recipients to keep part of their earnings from outside jobs. 42 U. S. C. §§ 630-644 (1964 ed., Supp. IV); Md. Manual of Dept, of Social Services, Ride 200, §VI, B (8) (c)(2). Both federal and state law require that recipients seek work and take it if it is available. 42 U. S. C. § 602 (a) (19) (F) (1964 ed., Supp. IV); Md. Manual of Dept, of Social Services, Rule 200, § III (D) (1) (d).
Both opinions appear at 297 F. Supp. 450.
The prevailing party may, of course, assert in a reviewing court any ground in support of his judgment, whether or not that ground was relied upon or even considered by the trial court. Compare Langnes v. Green, 282 U. S. 531, 538, with Story Parchment Co. v. Paterson Parchment Paper Co., 282 U. S. 555, 567-568. As the Court said in United States v. American Ry. Exp. Co., 265 U. S. 425, 435-436: “[lit is likewise settled that the appellee may, without taking a cross-appeal, urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the lower court or an insistence upon matter overlooked or ignored by it. By the claims now in question, the American does not attack, in any respect, the decree entered below. It merely asserts additional grounds why the decree should be affirmed.” When attention has been focused on other issues, or when the court from which a case comes has expressed no views on a controlling question, it may be appropriate to remand the case rather than deal with the merits of that question in this Court. See Aetna Cas. & Sur. Co. v. Flowers, 330 U. S. 464, 468; United States v. Ballard, 322 U. S. 78, 88. That is not the situation here, however. The issue having been fully argued both here and in the District Court, consideration of the statutory claim is appropriate. Bondholders Committee v. Commissioner,
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Answer:
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sc_decisiondirection
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
HAMILTON v. ALABAMA.
No. 32.
Argued October 17, 1961.
Decided November 13, 1961.
Constance B. Motley argued the cause for petitioner. On the brief were Orsell Billingsley, Jr., Peter A. Hall, Thurgood Marshall, Jack Greenberg and James M. Nabrit III.
George D. Mentz, Assistant Attorney General of Alabama, argued the cause for respondent. With him on the briefs were MacDonald Gallion, Attorney General, and James W. Webb and John G. Bookout, Assistant Attorneys General.
Mr. Justice Douglas
delivered the opinion of the Court.
This is a capital case, petitioner having been sentenced to death on a count of an indictment charging breaking and entering a dwelling at night with intent to ravish. Petitioner appealed, claiming he had been denied counsel at the time of arraignment. The Alabama Supreme Court, although stating that the right to counsel under the State and Federal Constitutions included the right to counsel at the time of arraignment, did not reach the merits of the claim because to do so would require impeaching the minute entries at the trial, which may not be done in Alabama on an appeal. 270 Ala. 184, 116 So. 2d 906. When petitioner sought certiorari here, Alabama responded saying that his remedy to attack the judgment with extrinsic evidence was by way of coram nobis. We denied certiorari. 363 U. S. 852.
Petitioner thereupon proceeded by way of coram nobis in the Alabama courts. The Supreme Court of Alabama, while recognizing that petitioner had a right under state law, 15 Ala. Code § 318, to be represented by counsel at the time of his arraignment, denied relief because there was no showing or effort to show that petitioner was “disadvantaged in any way by the absence of counsel when he interposed his plea of not guilty.” 271 Ala. 88, 93, 122 So. 2d 602, 607. The case is here on certiorari. 364 U. S. 931.
Arraignment under Alabama law is a critical stage in a criminal proceeding. It is then that the defense of insanity must be pleaded (15 Ala. Code § 423), or the opportunity is lost. Morrell v. State, 136 Ala. 44, 34 So. 208. Thereafter that plea may not be made except in the discretion of the trial judge, and his refusal to accept it is “not revisable” on appeal. Rohn v. State, 186 Ala. 5, 8, 65 So. 42, 43. Cf. Garrett v. State, 248 Ala. 612, 614-615, 29 So. 2d 8, 9. Pleas in abatement must also be made at the time of arraignment. 15 Ala. Code § 279. It is then that motions to quash based on systematic exclusion of one race from grand juries (Reeves v. State, 264 Ala. 476, 88 So. 2d 561), or on the ground that the grand jury was otherwise improperly drawn (Whitehead v. State, 206 Ala. 288, 90 So. 351), must be made.
Whatever may be the function and importance of arraignment in other jurisdictions, we have said enough to show that in Alabama it is a critical stage in a criminal proceeding. What happens there may affect the whole trial. Available defenses may be as irretrievably lost, if not then and there asserted, as they are when an accused represented by counsel waives a right for strategic purposes. Cf,. Canisio v. New York, 327 U. S. 82, 85-86. In Powell v. Alabama, 287 U. S. 45, 69, the Court said that an accused in a capital case “requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.” The guiding hand of counsel is needed at the trial “lest the unwary concede that which only bewilderment or ignorance could justify or pay a penalty which is greater than the law of the State exacts for the offense which they in fact and in law committed.” Tomkins v. Missouri, 323 U. S. 485, 489. But the same pitfalls or like ones face an accused in Alabama who is arraigned without having counsel at his side. When one pleads to a capital charge without benefit of counsel, we do not stop to determine whether prejudice resulted. Williams v. Kaiser, 323 U. S. 471, 475-476; House v. Mayo, 324 U. S. 42, 45-46; Uveges v. Pennsylvania, 335 U. S. 437, 442. In this case, as in those, the degree of prejudice can never be known. Only the presence of counsel could have enabled this accused to know all the defenses available to him and to plead intelligently.
Reversed.
Another count charged breaking and entering with intent to steal.
The minute entries indicated that petitioner had counsel at the arraignment.
Petitioner was first indicted for burglary and when arraigned had counsel present. Later, the present indictment, relating to the same incident, was returned. His counsel, who had been appointed, was advised that petitioner would be re-arraigned. But no lawyer appeared at this arraignment and we read the Alabama Supreme Court opinion to mean that the earlier appointment did not carry over.
Arraignment has differing consequences in the various jurisdictions. Under federal law an arraignment is a sine qua non to the trial itself — the preliminary stage where the accused is informed of the indictment and pleads to it, thereby formulating the issue to be tried. Crain v. United States, 162 U. S. 625, 644; Rules 10 and 11, Federal Rules of Criminal Procedure. That view has led some States to hold that arraignment is the first step in a trial (at least in case of felonies) at which the accused is entitled to an attorney. People v. Kurant, 331 Ill. 470, 163 N. E. 411.
In other States arraignment is not “a part of the trial” but “a mere formal preliminary step to an answer or plea.” Ex parte Jeffcoat, 109 Fla. 207, 210, 146 So. 827, 828.
An arraignment normally, however, affords an opportunity of the accused to plead, as a condition precedent to a trial. Fowler v. State, 155 Tex. Cr. R. 35, 230 S. W. 2d 810. N. J. Rules of Practice, Rule 8:4-2.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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songer_usc1sect
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3161
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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 most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
UNITED STATES of America, Appellee, v. Russell BUFALINO, Defendant-Appellant.
No. 846, Docket 81-1474.
United States Court of Appeals, Second Circuit.
Argued March 23, 1982.
Decided June 15, 1982.
Nathaniel H. Akerman, Asst. U. S. Atty., S. D. N. Y., New York City (John S. Martin, Jr., U. S. Atty., S. D. N. Y„ Mark F. Pomerantz, Asst. U. S. Atty., New York City, of counsel), for appellee.
Charles P. Gelso, Wilkes-Barre, Pa., for defendant-appellant.
Before FEINBERG, Chief Judge, OAKES, Circuit Judge, and FRIEDMAN, Chief Judge, United States Court of Claims.
Sitting by designation.
FEINBERG, Chief Judge:
Russell Bufalino appeals from a judgment of conviction entered in November 1981 in the United States District Court for the Southern District of New York, Kevin T. Duffy, J., after a jury trial. Appellant’s principal argument on appeal is that he was denied his statutory right to a speedy trial. We find that this and appellant’s other claims are without merit, and we affirm.
Briefly, the events leading to this appeal are as follows. In April 1976, appellant attempted to recover a $25,000 debt from Jack Napoli by threatening to kill him. Unfortunately for appellant, prior to their meeting, Napoli had taken the precaution of concealing a tape recorder on his body, and used it to record Bufalino’s conversation. On the basis of Napoli’s testimony, Bufalino was indicted for extortion. Anticipating that the government would call Napoli as a witness at trial, appellant arranged with a business acquaintance, James Fratianno, for Napoli’s elimination. This arrangement was unsuccessful, possibly because Napoli had joined the Justice Department’s Witness Protection Program and had been relocated and given a new identity. In any case, Napoli lived to testify at the extortion trial and Bufalino was convicted of extortion in August 1977 and was sentenced to four years in prison, see United States v. Bufalino, 576 F.2d 446 (2d Cir.), cert. denied, 439 U.S. 928, 99 S.Ct. 314, 58 L.Ed.2d 321 (1978). While in jail, appellant again sought to murder Napoli, this time with the aid of another prisoner, Steven Fox, who was about to be paroled. This attempt also failed, but in December 1980, Bufalino was indicted for conspiring to obstruct justice. On April 2, 1981, this indictment was superseded by a second indictment charging Bufalino with conspiring to violate the civil rights of a United States citizen, in violation of 18 U.S.C. § 241 (Count One), and endeavoring to obstruct justice, in violation of 18 U.S.C. § 1503 (Count Two).
At trial, James Fratianno, who was by this time also a member of the Witness Protection Program, and- Steven Fox, who was in jail on other charges but had been offered the benefits of that program after his release, testified for the prosecution. Bufalino’s defense was a general denial. Testifying in his own behalf, appellant denied that he intended to have Napoli killed for his role in the extortion prosecution. He also called several witnesses to contradict elements in the prosecution’s case. In rebuttal, the Government played the tape recording of the threat on Napoli’s life. The jury convicted Bufalino on both counts, and he was sentenced to 10 years imprisonment and fined $10,000 on Count One and to a concurrent term of five years imprisonment and fined $5,000 on Count Two. Appellant claims that his conviction must be reversed because he was denied his statutory right to a speedy trial, inadmissible testimony was introduced at trial, and certain jury instructions were in error.
I. Speedy Trial
Bufalino’s speedy trial claim is based on events that occurred between his arraignment on January 9, 1981 and the trial, which began on October 19, 1981. Under the Speedy Trial Act, 18 U.S.C. §§ 3161 et seq., a defendant is entitled to have the charges against him dismissed if he is not brought to trial within 70 days of arraignment, unless the excess days fall within a list of exclusions set out in § 3161(h). Since Russell Bufalino was tried 283 days after he was arraigned, the issue before us is whether 213 of those days are excludable.
The government has presented us with several ways to reckon the excludable periods that arose in this prosecution. Its most forcefully urged alternative, which it presented at oral argument, involves excluding one day for Bufalino’s co-defendant’s bail hearing on January 13 under § 3161(h)(l)(J) [hereinafter “(J)”], two days for the weekend preceding the trial under Fed.R.Crim.P. 45(a); and 210 days for motion practice under § 3161(h)(1)(F) [“(F)”]. To arrive at this figure for motion practice, the government excludes the entire period from January 20, when defense counsel claims to have discussed a schedule for filing pretrial motions with Judge Duffy’s law clerk, to July 28, when the court decided all the pending motions with the exception of the government’s motion to sequester the jury. In addition, the government excludes the time from September 11, when it moved for a ruling on the admissibility of evidence relating to Bufalino’s connections with La Cosa Nostra, to September 30, when that motion was decided.
Appellant objects to this calculation on several grounds. The most cogent of these is that (J) limits the amount of time excludable for the consideration of pretrial motions. Under that subsection, which is reproduced in note 5 supra, a maximum of 30 days is excludable when a “proceeding concerning the defendant is actually under advisement by the court.” In this case, a first round of motions was fully submitted by March 24, and a second round (which was precipitated by the filing of a superseding indictment) was fully submitted by May 26. As a result, even if a full period of advisement is allowed for each set of motions, only 60 of the 126 days between March 25 and July 28 are excludable by reason of subsection (J). The Government reads the statute differently. It contends that (J) and (F) should not be read together, that (F) — which does not impose a numerical limitation on the time it excludes — is the only subsection that applies to pretrial motions, and, apparently, that (J) refers to other (unspecified) proceedings that could concern a defendant.
The application of (J) to the period of time during which a trial judge considers pretrial motions is an issue of first impression in this circuit, see United States. v. New Buffalo Amusement Corp., 600 F.2d 368, 373 n.5 (2d Cir. 1979). While we think that a cursory reading of the two subsections lends some support to the government’s position, a careful look at the legislative history of the Speedy Trial Act and its 1979 amendments makes that theory untenable.
We start with the 1974 Act, which provided that:
(h) The following periods of delay shall be excluded ... in computing the time within which the trial of any such offense must commence:
(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to—
(E) delay resulting from hearings on pretrial motions;
(G) delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement.
Under the 1974 Act, subsection (E), which is the predecessor of current subsection (F), was limited in scope. It was apparently aimed at excluding only the days on which pretrial motions were argued in court, and not the days from the filing of the motion to the hearing thereon, see Frase, The Speedy Trial Act of 1974, 43 U.Chi.L.Rev. 667, 692 (1976). Subsection (G), the predecessor of (J), was intended to deal with delay that arose after pretrial motions were submitted, as the following passage from the House Report that accompanied the bill makes clear:
Section 8161(h)(1)(g) provides for the exclusion of time during which any proceeding concerning the defendant is under advisement. The Subcommittee added language which would limit to 30 days the time that each proceeding could be held under actual advisement. The amendment was adopted at the suggestion of Detroit defense attorney Mr. Barris, who said:
Now, I think the language which is now contained within the bill is that a reasonable time should be allowed when a matter is held under advisement by the district judge. This, of course, is a very flexible term, term “reasonable,” and I would suggest that a period of 30 days after all oral argument is heard and all briefs have been submitted on the matter under advisement is not an unreasonable period in which the district judge could act, I do not think that this would compel the judge to reach on any particular issue an improvident answer merely because he is held to a time limit of 30 days. And yet if such a provision or restriction were written into the Act, it would effectively plug up one of the loopholes which I conceive to now exist whereby a district judge were he prone to do so, could well “sit on a matter” for an indefinite period of time and thus rather effectively defeat the purposes of the bill.
The Committee concurs with the views of Mr. Barris and also with the Alaska speedy trial rules of court, which provides that no pre-trial motion shall be held under advisement for more than 30 days. This modification in no way affects the prerogative of the court to continue cases upon its own motion where, due to the complexity or unusual nature of the case, additional time is needed to consider matters before the court, as set forth in section 3161(h)(8).
H.R.Rep.No.93-1508, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.Code Cong. & Admin.News 7401, 7425-26.
By 1979, the courts had obtained some experience with the Act, and Congress chose to amend certain portions to reflect that experience. Subsection (G) apparently had not caused the courts any problems, and it was not changed in 1979, except for a change in lettering to (J). Subsection (E), however, had led to controversy, and Congress decided to reword it to make its meaning more precise. The accompanying reports are revealing as to legislative intent:
The provision of existing law relating to exclusion of periods of delay “resulting from hearings on pretrial motions” is revised to avoid an unduly restrictive interpretation of the exclusion as extending only to the actual time consumed in a pretrial hearing. The committee approves the expansion of this exclusion to “delay resulting from any pretrial motion, from the filing of the motion, through the conclusion of the hearing on, or other prompt disposition of, such motion” with the intention that potentially excessive and abusive use of this exclusion be precluded by district or circuit guidelines, rules, or procedures relating to motions practice.
H.R.Rep.No.96-390, 96th Cong., 1st Sess (1979), reprinted in 1979 U.S.Code Cong. & Admin.News 805, 814. And more significantly,
Finally, the section provides exclusion of time from filing to the conclusion of hearings on or “other prompt disposition” of any motion. This later language is intended to provide a point at which time will cease to be excluded, where motions are decided on the papers filed without hearing. In using the words “prompt disposition”, the committee intends to make it clear that, in excluding time between filing and disposition on the papers, the Committee does not intend to permit circumvention of the 30-days, “under advisement” provision contained in Subsection (h)(l)(J). Indeed, if motions are so simple or routine that they do not require a hearing, necessary advisement time should be considerably less than 30 days. Nor does the Committee intend that additional time be made eligible for exclusion by postponing the hearing date or other disposition of the motions beyond what is reasonably necessary.
S.Rep.No.96-212, 96th Cong., 1st Sess. 33-34 (1979), reprinted in Federal Judicial Center, Legislative History of Title I of the Speedy Trial Act 115 (1980) (emphasis added).
These excerpts make it clear to us that the term “proceeding” in subsection (J) was very much intended to encompass pretrial motions. Furthermore, this view is reinforced by contemporaneous and informed administrative interpretation. The Administrative Office of the United States Courts has issued guidelines to aid the courts in applying the Speedy Trial Act, which were prepared, in part, by the Committee on the Administration of the Criminal Law of the Judicial Conference of the United States. While these guidelines are not binding, the interpretation they espouse is persuasive. These guidelines state flatly that:
(J) Proceedings Under Advisement
General. This exclusion covers the time required for the court to consider a motion. Although the excludable period under this subparagraph is limited to thirty days, additional time required to consider a motion may in some cases warrant a continuance of the trial date under paragraph (h)(8).
Starting Date. The starting date is the day following the date on which the court has received everything it expects from the parties, examining physicians, etc., before reaching a decision. It is normally the date following the expiration of an exclusion under subparagraph (A), (B), (F), or (G).
Ending Date. The ending date is the earliest of (1) the date the judge’s decision is filed, (2) the date the judge renders his decision orally in open court, or (3) the expiration of the 30-day maximum period.
Guidelines to the Administration of the Speedy Trial Act of 1979, as Amended 42-43 (1981). This interpretation is also reflected in the Administrative Office Speedy Trial Advisory Issuance # 32 (August 1981) at Chart B, page 3 (“Defendant Motion Under Advisement. The exclusion covers the time required for the court to consider a motion .... [T]he excludable period under this subparagraph is limited to thirty days .... ”). Similarly, the .1979 Plan for the Prompt Disposition of Criminal Appeals of the United States District Court for the Southern District of New York noted that “in some instances docket clerks are not aware of when a judge takes a motion under advisement. This date is important as it starts excludable time running for up to 30 days under § 3161(h)(l)(J).” Plan at III — 9. See also Misner, The 1979 Amendments to the Speedy Trial Act: Death of the Planning Process, 32 Hast.L.J. 635, 654-55 (1981).
Moreover, the scanty caselaw on the issue supports these administrative interpretations. It is true that the government cites two circuit court decisions to us for the proposition that the 30-day time limit of (J) is not applicable. However, it does not appear that either case is directly on point. For example, in United States v. Brim, 630 F.2d 1307 (8th Cir. 1980), cert. denied, 452 U.S. 966, 101 S.Ct. 3121, 69 L.Ed.2d 980 (1981), it seems that the pretrial period extended for an inordinate length of time because the parties filed many consecutive motions and that at no time was a single motion under advisement for longer than 30 days. (“From [October 23, 1979], overlapping filings by the defendants and the government kept motions pending continuously until December 19, 1979, when the district court disposed of the motions remaining before it.... ” Id. at 1312.) On the other hand, the Seventh Circuit considered the precise issue in United States v. Raineri, 670 F.2d 702 (7th Cir. 1982). There, motions were fully submitted by August 1, but the magistrate did not decide them until October 28, 88 days later. Apparently agreeing with the interpretation advanced by appellant here, that court held that “[i]t is reasonable to attribute and exclude thirty of the days between August 1 and October 28 to the motions under advisement.” Id. at 708 (emphasis added); cf. United States v. Molt, 631 F.2d 258, 262 (3d Cir. 1980) (per cuijiam).
Based upon all of the above, therefore, we reject the government’s position that the 30-day limitation of subsection (J) is inapplicable. We are aware that this interpretation places a burden on district judges to decide motions rapidly. We believe, however, that it carries out the meaning of the Act. Furthermore, should the 30-day limit place an unduly harsh burden on a trial judge, it is always open to him to find that the interest of justice is best served by granting a continuance under § 3161(h)(8) for the excess period, see H.R. Rep.No.93-1508, supra.
The government argues also that defendants’ failure to respond to the government’s sequestration motion renders the entire period from the time that the motion was filed to the date of trial excludable under subsection (F). The sequestration motion had been filed on March 27, but neither Bufalino nor his co-defendant, Rizzitello, responded to it. On September 30, during a pretrial conference, the judge asked counsel if they objected to sequestration and, after expressing his own reservations about the practice, stated that he would not do it unless the defense counsel joined in the government’s motion. Although at that time neither counsel objected to sequestration, Rizzitello’s attorney refused to join in the motion without further discussion with Bufalino’s counsel. The matter was again brought up by the court on October 19, the date that the trial began. At that time, the following interchange took place:
THE COURT: I will once again state that I’m not crazy about sequestered juries. However, I gather that everybody wants a sequestered jury in this case.
MR. COHEN [attorney for Rizzitello]: Your Honor, excuse me.
I contacted your chambers on that day when we had the conference and indicated we didn’t take any position.
THE COURT: Not taking a position is a kind of indication that you don’t disagree with the motion, which is kind of like saying we’ll have a sequestered jury.
Under the circumstances I will assume that everybody in this case is willing to work much harder than normally, and under the circumstances we are going to work harder.
In view of these facts, we believe that the government’s argument to us on this point has merit. Because Judge Duffy was opposed to sequestration, his decision on the government’s motion hinged on the defendants’ positions towards it. If either one had shared his views of the dangers in sequestration, it is not unlikely that the government’s motion would have been denied. Consequently, Judge Duffy could not have taken this motion under advisement in any meaningful way until the defendants made their positions known. Moreover, administration of the Speedy Trial Act has posed difficulties, as the Southern District’s summary of its experience indicates, see South-era District Plan, supra, III. Over 750 criminal cases were filed in the Southern District in the year ending June 30, 1981, see Administrative Office of the United States Courts, Management Statistics for 1981 at 26 (1981), far too many for it to be reasonable to require the clerks or the judges to guess each party’s position on his adversary’s motions in order to calculate times under the Speedy Trial Act. Cf. Misner, supra at 643 n.65. It seems to us that Bufalino, when faced with a government motion, had a duty to do more than stand by without taking a position and then reap the benefit of inaction by having the indictment dismissed on speedy trial grounds.
In finding that (F) applies to the entire period that followed the filing of the government’s sequestration motion, we do not mean to say that appellant’s failure to respond works as a waiver of his rights. The responsibility for pursuing a prosecution lies entirely with the government, Barker v. Wingo, 407 U.S. 514, 527, 92 S.Ct. 2182, 2190, 33 L.Ed.2d 101 (1972) (“A defendant has no duty to bring himself to trial ....”); New Buffalo Amusement Corp., 600 F.2d at 375-76; United States v. Didier, 542 F.2d 1182, 1189 & n.9 (2d Cir. 1976). Cf. United States v. Salzmann, 548 F.2d 395, 401 (2d Cir. 1976). We must, however, insure the ability of the courts to administer the Act. If defendants do not make their positions known in response to the motions that are made, neither the court nor its clerk’s office will ever know when the “under advisement” period of subsection (J) begins to run. The Act was not, after all, meant to provide defendants with tactics for ensnaring the courts into situations where charges will have to be dismissed on technicalities. Regilio, 669 F.2d at 1173; cf. Furlow v. United States, 644 F.2d 764, 768 (9th Cir.) (per curiam), cert. denied, 454 U.S. 871, 102 S.Ct. 340, 70 L.Ed.2d 175 (1981). In addition, we caution the Government that we will not in the future condone its willingness to stand silent in similar situations. As Barker v. Wingo, 407 U.S. at 527, 92 S.Ct. at 2190, makes clear, the government is charged not only with preserving society’s interest in bringing criminals to justice; it is also charged with protecting society’s interest in swift prosecutions. In the future, a defendant’s failure to respond to a motion within a reasonable time should be brought to the court’s attention.
Because we find that the entire period from March 27 to October 19 is excludable under subsection (F), we do not reach the government’s alternative theories for calculating the exclusion. Taking the approach most favorable to appellant on the question of when motion practice began under subsection (F), Bufalino was tried 59 days after his arraignment, well within the 70-day period allowable under the Speedy Trial Act.
II. Rulings on Evidence
Appellant’s claims with regard to the evidence introduced at trial are without merit. First, he argues that the trial court should not have allowed the government to cross-examine him about his friendships with members of La Cosa Nostra or about his presence in Apalachin on November 14, 1957. While we agree that this line of interrogation poses the danger of allowing the jury to find Bufalino guilty by virtue of his association with known gangsters and his presence at a famous gangland convention, we feel that the cross-examination was proper.
The theory that the government presented to the jury was that Bufalino could prevail upon James Fratianno to have Napoli killed because both were members of La Cosa Nostra, an organization whose members performed murders for one another as a matter of professional courtesy. When, on direct examination, Bufalino claimed that his acquaintance with Fratianno was based on “chance meetings,” it became proper for the government to impeach him by introducing evidence of appellant’s longstanding relationship with La Cosa Nostra, see United States v. Havens, 446 U.S. 620, 626, 100 S.Ct. 1912, 1916, 64 L.Ed.2d 559 (1980) (“[Wjhen defendants testify, they must testify truthfully or suffer the consequences.”); United States v. Miller, 478 F.2d 1315, 1318 (2d Cir.), cert. denied, 414 U.S. 851, 94 S.Ct. 144, 38 L.Ed.2d 100 (1973). Furthermore, since without this evidence it was unlikely that the jury would believe that Fratianno would agree to commit the crime, we think the trial judge properly exercised his discretion to allow the cross-examination of defendant to proceed, see United States v. Sanzo, 673 F.2d 64, 70 (2d Cir. 1982).
Bufalino’s other evidentiary objection is that the tape recording of the extortion threat should not have been admitted because it was highly prejudicial. The general rule is that “other crimes” evidence “is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” Fed.R.Evid. 404(b). Such evidence of “other crimes” is, however, permissible for purposes of impeachment, United States v. Benedetto, 571 F.2d 1246, 1250 (2d Cir. 1978), and to show motive or intent, Fed.R.Evid. 404(b), United States v. Bradwell, 388 F.2d 619, 622 (2d Cir.), cert. denied, 393 U.S. 867, 89 S.Ct. 152, 21 L.Ed.2d 135 (1968). In this case, the tape recorded threat served the double purpose of negating Bufalino’s testimony that he never told anyone to kill Napoli and establishing his motive for seeking Napoli’s death. Moreover, Judge Duffy gave the jury two curative instructions. Right after the tape was played, the jury was told to disregard the obscenities it contained. More importantly, in his charge, the judge said:
[Y]ou heard a tape ... of what the defendant Bufalino said on one occasion to Jack Napoli. You know that Bufalino has already been convicted of making that threat. You are not called upon to consider that tape that you heard as anything except something which may assist you in determining the question of intent in this case, only in connection with that.
We think that this charge was sufficient to alert the jury to the danger of improperly using the tape as evidence that Bufalino endeavored to obstruct justice. Admission of the tape therefore was not reversible error.
III. The Judge’s Charge
Finally, Bufalino objects to the court’s failure to give the accomplice instruction that Bufalino requested. Fratianno and Fox, the two principal witnesses for the prosecution, both received — or stood to receive — substantial benefits from the government. Fratianno received a favorable plea bargain on another charge, immunity from prosecution on the criminal activities that he testified about and approximately $200,000 as part of the Justice Department’s Witness Protection Program. Fox expected to receive early parole and an opportunity to participate in the Protection Program. Although this information was brought out at the trial, the judge’s charge on how their testimony should be evaluated was somewhat equivocal. Specifically, he instructed the jury as follows:
If you find .. . that an informer believes that he has a real interest in the outcome of this case, then you can consider that, also, in determining his credibility.
For example, if a person here, informer believes that his term of imprisonment may be shortened, not because of his testimony but because of the outcome of the case, all right, then he has a real interest in the outcome of the case. He might be said to have an interest anyway in the case from the very fact that he is testifying.
I am not saying and I don’t want you to understand that the law imposes this, I am not saying that because a person has an interest that means that they would testify falsely, I am just saying it is something for you to consider. It is something that you determine what weight it will have.
This instruction was arguably inadequate because it asked the jury to devalue Fox’s and Fratianno’s testimony only if the jury found that their receipt of benefits was contingent on the conviction of Bufalino. We have stated in the past that “trial judges should call the jury’s attention to their duty to scrutinize the testimony of accomplices and informers.” United States v. Swiderski, 539 F.2d 854, 860 (2d Cir. 1976). This admonition applies to all factors affecting credibility that have been brought out at trial, not merely an interest in the outcome of the case. We do not, however, find that this possible inadequacy in the charge requires a reversal of Bufalino’s conviction. The jury received ample evidence of the interest of these witnesses, and could be counted on to use its common sense in evaluating the truth of their testimony. Besides, the defense summation— which referred to Fratianno as a “chronic pathological liar” to whom the government paid $200,000 “that might buy a lie” — more than compensated for the judge’s omission. See United States v. Velez, 652 F.2d 258, 261 n.5 (2d Cir. 1981).
For the foregoing reasons, the judgment of conviction is affirmed.
. Michael Rizzitello was indicted with Bufalino and tried with him. The original indictment, charging both with conspiracy to obstruct justice, was superseded by the April 2 indictment which charged both appellant and Rizzitello with conspiring to violate Napoli’s civil rights and Bufalino alone with endeavoring to obstruct justice. Rizzitello was acquitted.
. In the portion of the tape most damaging to Bufalino, he stated:
[A]nd if you’re going to do it, don’t do the right thing, I’m going to kill you, [epithet omitted], and I’m going to do it myself, and I’m going to go to jail just for you....
. Bufalino was arraigned through counsél on January 9, 1981, and did not personally appear until May 8. Although an argument could be made that his speedy trial rights were tolled prior to his personal appearance, at a hearing before Judge Brieant on January 8, all the parties agreed that the speedy trial “clock” would begin to run as of the date Bufalino was arraigned through his attorney.
. Section 3162(a)(2) provides:
If a defendant is not brought to trial within the time limit required by section 3161(c) as extended by section 3161(h), the information or indictment shall be dismissed on motion of the defendant. The defendant shall have the burden of proof of supporting such motion but the Government shall have the burden of going forward with the evidence in connection with any exclusion of time under subparagraph 3161(h)(3). In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice. Failure of the defendant to move for dismissal prior to trial or entry of a plea of guilty or nolo contendere shall constitute a waiver of the right to dismissal under this section.
Because we affirm this conviction, we do not consider whether the factors present in this case would have mandated a dismissal with prejudice.
. Section 3161(h) provides in relevant part that:
(h) The following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence:
(I) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to—
(F) delay resulting from any pretrial motion, from the filing of the motion, through the conclusion of the hearing on, or other prompt disposition of, such motion;
(J) delay reasonably attributable to any period, not to exceed thirty days, during which any proceeding concerning the defendant is actually under advisement by the court.
(8)(A) Any period of delay resulting from a continuance granted by any judge on his own motion or at the request of a defendant or his counsel or at the request of the attomtey^for the Government, if the judge granted such continuance on the basis of his findings that the ends of justice served by taking such action outweigh the best interest of the public and the defendant in a speedy trial.
. In the other case relied on by the government, United States v. Regilio, 669 F.2d 1169 (7th Cir. 1981), it is unclear whether the court had the motions under advisement for over 30 days or whether overlapping motions were filed in a way that prolonged the pretrial period. In a later case, however, Regilio was cited by the Seventh Circuit after it stated that it would exclude only 30 pretrial days under (J). United States v. Raineri, 670 F.2d 702, 708 (7th Cir. 1982), discussed in the text infra.
. It is therefore unnecessary to reach appellant’s objections to the date upon which the government contends that the (F) exclusion begins. Bufalino claims that the scheduling of pretrial motions was not formally begun until January 22. More important, appellant maintains that the exclusion does not begin until motions are actually filed, which was March 9 in this case.
. The September 30 colloquy, as it pertained to the sequestration motion, was as follows:
THE COURT: The only thing which is of long standing is the motion to sequester the jury. That is number one.
Does anyone object to the motion to sequester the jury?
You do?
MR. COHEN [attorney for Rizzitello]: No, your Honor.
THE COURT: You agree that the jury should be sequestered?
MR. GELSO: I do on behalf of Bufalino.
MR. COHEN: I have no objection.
THE COURT: I tell you, I assume you guys have thought about it, that is like notifying the jury that we have “dangerous people floating around someplace.”
MR. GELSO: I would hope the Court would give an appropriate instruction.
THE COURT: I don’t care what I do. They are going to sit in a motel and think about it. I am against sequestering a jury. And as of now I won’t do it unless all three of you join in and sequester them.
MR. COHEN: I am going to meet with Mr. Gelso after we leave here. We haven’t had time to talk about this. We will give your Honor our feelings on this, perhaps this afternoon.
. The government also argues that speedy trial time should not begin to run until Bufalino appeared in person on May 8, see note 3 supra; that excludable time begins from the moment that the court determines that pretrial motions would be needed (here, January 9); and that Bufalino’s September 30 motion for a continuance waived his speedy trial rights. In addition, the government asserts that the time from October 5, when the trial was scheduled to begin, to October 19, the date upon which it actually began, is excludable under § 3161(h)(8) because Judge Duffy was busy trying another case. Although (h)(8) requires the trial court to make a finding “that the ends of justice . .. outweigh the best interest of the public and the defendant in a speedy trial,” the government maintains that we can make this finding nunc pro tunc.
. See notes 7 & 9 supra. Under this approach, the entire time from January 9, when defendants were arraigned, to March 9, when motions were filed, is counted toward the 70-day statutory period.
. Appellant’s presence at the notorious La Cosa Nostra convention in Apalachin was the subject of his prosecution for conspiracy to obstruct justice and commit perjury. His conviction on those charges was reversed by this court, United States v. Bufalino, 285 F.2d 408 (2d Cir. 1960).
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 18? Answer with a number.
Answer:
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sc_casedisposition
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
MERRILL LYNCH, PIERCE, FENNER & SMITH INC., et al., petitioners
v.
Greg MANNING, et al.
No. 14-1132.
Supreme Court of the United States
Argued Dec. 1, 2015.
Decided May 16, 2016.
Jonathan D. Hacker, Washington, DC, for the petitioners.
Peter K. Stris, Los Angeles, CA, for respondents.
Andrew J. Frackman, Abby F. Rudzin, Anton Metlitsky, Brad M. Elias, O'Melveny & Myers LLP, New York, NY, Walter Dellinger, Jonathan D. Hacker, Deanna M. Rice, O'Melveny & Myers LLP, Washington, DC, Thomas R. Curtin, Graham Curtin, PA, Morristown, NJ, for Merrill Lynch, Pierce, Fenner & Smith, Incorporated.
David G. Cabrales, Calli Turner, Gardere Wynne Sewell LLP, Dallas, TX, W. Scott Hastings, Locke Lord LLP, Dallas, TX, for Knight Capital Americas, L.P.
Stephen J. Senderowitz, Steven L. Merouse, Dentons US LLP, Chicago, IL, Jonathan S. Jemison, Dentons US LLP, Short Hills, NJ, for Citadel Derivatives Group LLC, n/k/a Citadel Securities LLC.
Kurt A. Kappes, Greenberg Traurig LLP, Sacramento, CA, David E. Sellinger, Greenberg Traurig LLP, Florham Park, NJ, for E*Trade Capital Markets LLC.
Michael G. Shannon, Thompson Hine LLP, New York, NY, for National Financial Services LLC.
Andrew B. Clubok, Susan E. Engel, Beth A. Williams, Jeffrey M. Gould, Kirkland & Ellis LLP, Washington, DC, William H. Trousdale, Brian M. English, Tompkins, McGuire, Wachenfeld & Barry LLP, Newark, NJ, for UBS Securities LLC.
Radha A. Pathak, Whittier Law School, Costa Mesa, CA, Shaun P. Martin, University of San Diego School of Law, San Diego, CA, Neal H. Flaster, Law Offices of Neal H. Flaster, LLC, Florham Park, NJ, Peter K. Stris, Brendan S. Maher, Daniel L. Geyser, Dana Berkowitz, Victor O'Connell, Michael N. Jones, Stris & Maher LLP, Los Angeles, CA, John A. Schepisi, Gregory M. Dexter, Schepisi & McLaughlin, P.A., Englewood Cliffs, NJ, for respondents.
Justice KAGAN delivered the opinion of the Court.
Section 27 of the Securities Exchange Act of 1934 (Exchange Act), 48 Stat. 992, as amended, 15 U.S.C. § 78a, et seq., grants federal district courts exclusive jurisdiction "of all suits in equity and actions at law brought to enforce any liability or duty created by [the Exchange Act] or the rules or regulations thereunder." § 78aa(a). We hold today that the jurisdictional test established by that provision is the same as the one used to decide if a case "arises under" a federal law. See 28 U.S.C. § 1331.
I
Respondent Greg Manning held more than two million shares of stock in Escala Group, Inc., a company traded on the NASDAQ. Between 2006 and 2007, Escala's share price plummeted and Manning lost most of his investment. Manning blames petitioners, Merrill Lynch and several other financial institutions (collectively, Merrill Lynch), for devaluing Escala during that period through "naked short sales" of its stock.
A typical short sale of a security is one made by a borrower, rather than an owner, of stock. In such a transaction, a person borrows stock from a broker, sells it to a buyer on the open market, and later purchases the same number of shares to return to the broker. The short seller's hope is that the stock price will decline between the time he sells the borrowed shares and the time he buys replacements to pay back his loan. If that happens, the seller gets to pocket the difference (minus associated transaction costs).
In a "naked" short sale, by contrast, the seller has not borrowed (or otherwise obtained) the stock he puts on the market, and so never delivers the promised shares to the buyer. See " Naked" Short Selling Antifraud Rule, Securities Exchange Commission (SEC) Release No. 34-58774, 73 Fed.Reg. 61667 (2008). That practice (beyond its effect on individual purchasers) can serve "as a tool to drive down a company's stock price"-which, of course, injures shareholders like Manning. Id., at 61670. The SEC regulates such short sales at the federal level: The Commission's Regulation SHO, issued under the Exchange Act, prohibits short sellers from intentionally failing to deliver securities and thereby curbs market manipulation. See 17 CFR §§ 242.203 -242.204 (2015).
In this lawsuit, Manning (joined by six other former Escala shareholders) alleges that Merrill Lynch facilitated and engaged in naked short sales of Escala stock, in violation of New Jersey law. His complaint asserts that Merrill Lynch participated in "short sales at times when [it] neither possessed, nor had any intention of obtaining[,] sufficient stock" to deliver to buyers. App. to Pet. for Cert. 57a, Amended Complaint ¶ 39. That conduct, Manning charges, contravened provisions of the New Jersey Racketeer Influenced and Corrupt Organizations Act (RICO), New Jersey Criminal Code, and New Jersey Uniform Securities Law; it also, he adds, ran afoul of the New Jersey common law of negligence, unjust enrichment, and interference with contractual relations. See id., at 82a-101a, ¶¶ 88-161. Manning chose not to bring any claims under federal securities laws or rules. His complaint, however, referred explicitly to Regulation SHO, both describing the purposes of that rule and cataloguing past accusations against Merrill Lynch for flouting its requirements. See id., at 51a-54a, ¶¶ 28-30;
75a-82a, ¶¶ 81-87. And the complaint couched its description of the short selling at issue here in terms suggesting that Merrill Lynch had again violated that regulation, in addition to infringing New Jersey law. See id., at 57a-59a, ¶¶ 39-43.
Manning brought his complaint in New Jersey state court, but Merrill Lynch removed the case to Federal District Court. See 28 U.S.C. § 1441 (allowing removal of any civil action of which federal district courts have original jurisdiction). Merrill Lynch asserted federal jurisdiction on two grounds. First, it invoked the general federal question statute, § 1331, which grants district courts jurisdiction of "all civil actions arising under" federal law. Second, it maintained that the suit belonged in federal court by virtue of § 27 of the Exchange Act. That provision, in relevant part, grants district courts exclusive jurisdiction of "all suits in equity and actions at law brought to enforce any liability or duty created by [the Exchange Act] or the rules and regulations thereunder." 15 U.S.C. § 78aa(a). Manning moved to remand the case to state court, arguing that neither statute gave the federal court authority to adjudicate his collection of state-law claims. The District Court denied his motion. See No. 12-4466 (D NJ, Mar. 18, 2013), App. to Pet. for Cert. 24a-38a.
The Court of Appeals for the Third Circuit reversed, ordering a remand of the case to state court. See 772 F.3d 158 (2014). The Third Circuit first decided that the federal question statute, 28 U.S.C. § 1331, did not confer jurisdiction of the suit, because all Manning's claims were "brought under state law" and none "necessarily raised" a federal issue. 772 F.3d, at 161, 163. Nor, the court held, did § 27 of the Exchange Act make the district court the appropriate forum. Relying on this Court's construction of a nearly identical jurisdictional provision, the Court of Appeals found that § 27 covers only those cases involving the Exchange Act that would satisfy the "arising under" test of the federal question statute. See id., at 166-167 (citing Pan American Petroleum Corp. v. Superior Court of Del. for New Castle Cty., 366 U.S. 656, 81 S.Ct. 1303, 6 L.Ed.2d 584 (1961) ). Because the District Court lacked jurisdiction of Manning's suit under § 1331, so too it was not the exclusive forum under § 27.
Merrill Lynch sought this Court's review solely as to whether § 27 commits Manning's case to federal court. See Pet. for Cert. i. Because of a Circuit split about that provision's meaning, we granted certiorari. 576 U.S. ----, 135 S.Ct. 2938, 192 L.Ed.2d 975 (2015). We now affirm.
II
Like the Third Circuit, we read § 27 as conferring exclusive federal jurisdiction of the same suits as "aris[e] under" the Exchange Act pursuant to the general federal question statute. See 28 U.S.C. § 1331. The text of § 27 more readily supports that meaning than it does either of the parties' two alternatives. This Court's precedents interpreting identical statutory language positively compel that conclusion. And the construction fits with our practice of reading jurisdictional laws, so long as consistent with their language, to respect the traditional role of state courts in our federal system and to establish clear and administrable rules.
A
Section 27, as noted earlier, provides federal district courts with exclusive jurisdiction "of all suits in equity and actions at law brought to enforce any liability or duty created by [the Exchange Act] or the rules and regulations thereunder." 15 U.S.C. § 78aa(a) ; see supra, at 1567. Much the same wording appears in nine other federal jurisdictional provisions-mostly enacted, like § 27, as part of New Deal-era regulatory statutes.
Merrill Lynch argues that the "plain, unambiguous language" of § 27 requires an expansive understanding of its scope. Brief for Petitioners 23. Whenever (says Merrill Lynch) a plaintiff's complaint either explicitly or implicitly "assert[s]" that "the defendant breached an Exchange Act duty," then the suit is "brought to enforce" that duty and a federal court has exclusive jurisdiction. Id., at 22; Reply Brief 10-11; see Tr. of Oral Arg. 7-8 (confirming that such allegations need not be express). That is so, Merrill Lynch contends, even if the plaintiff, as in this case, brings only state-law claims in his complaint-that is, seeks relief solely under state law. See Reply Brief 3-6. And it is so, Merrill Lynch continues, even if the plaintiff can prevail on those claims without proving that the alleged breach of an Exchange Act duty-here, the violation of Regulation SHO-actually occurred. See id., at 7-13; Tr. of Oral Arg. 3 ("[T]he words 'brought to enforce' [do not focus] on what the court would necessarily have to decide").
But a natural reading of § 27's text does not extend so far. "Brought" in this context means "commenced," Black's Law Dictionary 254 (3d ed. 1933); " to" is a word "expressing purpose [or] consequence," The Concise Oxford Dictionary 1288 (1931); and "enforce" means "give force [or] effect to," 1 Webster's New International Dictionary of the English Language 725 (1927). So § 27 confers federal jurisdiction when an action is commenced in order to give effect to an Exchange Act requirement. That language, in emphasizing what the suit is designed to accomplish, stops short of embracing any complaint that happens to mention a duty established by the Exchange Act. Consider, for example, a simple state-law action for breach of contract, in which the plaintiff alleges, for atmospheric reasons, that the defendant's conduct also violated the Exchange Act-or still less, that the defendant is a bad actor who infringed that statute on another occasion. On Merrill Lynch's view, § 27 would cover that suit; indeed, Merrill Lynch points to just such incidental assertions as the basis for federal jurisdiction here. See Brief for Petitioners 20-21; supra, at 1567. But that hypothetical suit is "brought to enforce" state contract law, not the Exchange Act-because the plaintiff can get all the relief he seeks just by showing the breach of an agreement, without proving any violation of federal securities law. The suit, that is, can achieve all it is supposed to even if issues involving the Exchange Act never come up.
Critiquing Merrill Lynch's position on similar grounds, Manning proposes a far more restrictive interpretation of § 27's language-one going beyond what he needs to prevail. See Brief for Respondents 27-33. According to Manning, a suit is "brought to enforce" the Exchange Act's duties or liabilities only if it is brought directly under that statute-that is, only if the claims it asserts (and not just the duties it means to vindicate) are created by the Exchange Act. On that view, everything depends (as Justice Holmes famously said in another jurisdictional context) on which law "creates the cause of action." American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 60 L.Ed. 987 (1916). If a complaint asserts a right of action deriving from the Exchange Act (or an associated regulation), the suit must proceed in federal court. But if, as here, the complaint brings only state-created claims, then the case belongs in a state forum. And that is so, Manning claims, even if-contrary to what the Third Circuit held below-the success of the state claim necessarily hinges on proving that the defendant breached an Exchange Act duty. See Brief for Respondents 31.
Manning's view of the text's requirements, although better than Merrill Lynch's, veers too far in the opposite direction. There is no doubt, as Manning says, that a suit asserting an Exchange Act cause of action fits within § 27's scope: Bringing such a suit is the prototypical way of enforcing an Exchange Act duty. But it is not the only way. On rare occasions, as just suggested, a suit raising a state-law claim rises or falls on the plaintiff's ability to prove the violation of a federal duty. See, e.g., Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg., 545 U.S. 308, 314-315, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005) ; Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 201, 41 S.Ct. 243, 65 L.Ed. 577 (1921). If in that manner, a state-law action necessarily depends on a showing that the defendant breached the Exchange Act, then that suit could also fall within § 27's compass. Suppose, for example, that a state statute simply makes illegal "any violation of the Exchange Act involving naked short selling." A plaintiff seeking relief under that state law must undertake to prove, as the cornerstone of his suit, that the defendant infringed a requirement of the federal statute. (Indeed, in this hypothetical, that is the plaintiff's only project.) Accordingly, his suit, even though asserting a state-created claim, is also "brought to enforce" a duty created by the Exchange Act.
An existing jurisdictional test well captures both classes of suits "brought to enforce" such a duty. As noted earlier, 28 U.S.C. § 1331 provides federal jurisdiction of all civil actions "arising under" federal law. See supra, at 1567. This Court has found that statutory term satisfied in either of two circumstances. Most directly, and most often, federal jurisdiction attaches when federal law creates the cause of action asserted. That set of cases is what Manning highlights in offering his view of § 27. But even when "a claim finds its origins" in state law, there is "a special and small category of cases in which arising under jurisdiction still lies."
Gunn v. Minton, 568 U.S. ----, ----, 133 S.Ct. 1059, 1064, 185 L.Ed.2d 72 (2013) (internal quotation marks omitted). As this Court has explained, a federal court has jurisdiction of a state-law claim if it "necessarily raise[s] a stated federal issue, actually disputed and substantial, which a federal forum may entertain without disturbing any congressionally approved balance" of federal and state power. Grable, 545 U.S., at 314, 125 S.Ct. 2363 ; see Gunn, 568 U.S., at ----, 133 S.Ct., at 1064-1065 (framing the same standard as a four-part test). That description typically fits cases, like those described just above, in which a state-law cause of action is "brought to enforce" a duty created by the Exchange Act because the claim's very success depends on giving effect to a federal requirement. Accordingly, we agree with the court below that § 27's jurisdictional test matches the one we have formulated for § 1331, as applied to cases involving the Exchange Act. If (but only if) such a case meets the "arising under" standard, § 27 commands that it go to federal court.
Merrill Lynch objects that our rule construes "completely different language"-i.e., the phrases "arising under" and "brought to enforce" in § 1331 and § 27, respectively-"to mean exactly the same thing." Reply Brief 7. We cannot deny that point. But we think it far less odd than Merrill Lynch does. After all, the test for § 1331 jurisdiction is not grounded in that provision's particular phrasing. This Court has long read the words "arising under" in Article III to extend quite broadly, "to all cases in which a federal question is 'an ingredient' of the action." Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 807, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986) (quoting Osborn v. Bank of United States, 9 Wheat. 738, 823, 6 L.Ed. 204 (1824) ). In the statutory context, however, we opted to give those same words a narrower scope "in the light of [§ 1331's] history[,] the demands of reason and coherence, and the dictates of sound judicial policy." Romero v. International Terminal Operating Co., 358 U.S. 354, 379, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959). Because the resulting test does not turn on § 1331's text, there is nothing remarkable in its fitting as, or even more, neatly a differently worded statutory provision.
Nor can Merrill Lynch claim that Congress's use of the new "brought to enforce" language in § 27 shows an intent to depart from a settled (even if linguistically ungrounded) test for statutory "arising under" jurisdiction. That is because no such well-defined test then existed. As we recently noted, our caselaw construing § 1331 was for many decades-including when the Exchange Act passed-highly "unruly." Gunn, 568 U.S., at ----, 133 S.Ct., at 1065 (referring to the "canvas" of our old opinions as "look[ing] like one that Jackson Pollock got to first"). Against that muddled backdrop, it is impossible to infer that Congress, in enacting § 27, wished to depart from what we now understand as the "arising under" standard.
B
This Court has reached the same conclusion before. In two unrelated decisions, we addressed the "brought to enforce" language at issue here. See Pan American, 366 U.S. 656, 81 S.Ct. 1303, 6 L.Ed.2d 584 ; Matsushita Elec. Industrial Co. v. Epstein, 516 U.S. 367, 116 S.Ct. 873, 134 L.Ed.2d 6 (1996). Each time, we viewed that phrase as coextensive with our construction of "arising under."
Pan American involved § 22 of the Natural Gas Act (NGA), 15 U.S.C. § 717u -an exclusive jurisdiction provision containing language materially indistinguishable from § 27's. The case began in state court when a natural gas purchaser sued a producer for breach of a contract setting sale prices. Prior to the alleged breach, the producer had filed those contractual rates with the Federal Power Commission, as the NGA required. Relying on that submission (which the complaint did not mention), the producer claimed that the buyer's suit was "brought to enforce" a liability deriving from the NGA-i.e., a filed rate-and so must proceed in federal court. See 366 U.S., at 662, 81 S.Ct. 1303. This Court rejected the argument.
Our decision explained that § 22's use of the term "brought to enforce," rather than "arising under," made no difference to the jurisdictional analysis. The inquiry, we wrote, was "not affected by want" of the language contained in the federal question statute. Id., at 665, n. 2, 81 S.Ct. 1303. The "limitation[s]" associated with "arising under" jurisdiction, we continued, were "clearly implied" in § 22's alternative phrasing. Ibid. In short, the linguistic distinction between the two jurisdictional provisions did not extend to their meaning.
Pan American thus went on to analyze the jurisdictional issue in the manner set out in our "arising under" precedents. Federal question jurisdiction lies, the Court wrote, only if "it appears from the face of the complaint that determination of the suit depends upon a question of federal law." Id., at 663, 81 S.Ct. 1303. That inquiry focuses on "the particular claims a suitor makes" in his complaint-meaning, whether the plaintiff seeks relief under state or federal law. Id., at 662, 81 S.Ct. 1303. In addition, the Court suggested, a federal court could adjudicate a suit stating only a state-law claim if it included as "an element, and an essential one," the violation of a federal right. Id., at 663, 81 S.Ct. 1303 (quoting Gully v. First Nat. Bank in Meridian, 299 U.S. 109, 112, 57 S.Ct. 96, 81 L.Ed. 70 (1936) ). With those principles of "arising under" jurisdiction laid out, the Court held that § 22 did not enable a federal court to resolve the buyer's case, because he could prevail merely by proving breach of the contract. See 366 U.S., at 663-665, 81 S.Ct. 1303. Pan American establishes, then, that an action "brought to enforce" a duty or liability created by a federal statute is nothing more (and nothing less) than an action "arising under" that law.
Merrill Lynch reads Pan American more narrowly, as holding only that § 22 does not confer federal jurisdiction when a complaint (unlike Manning's) fails to reference federal law at all. See Brief for Petitioners 32-33, 38. But that argument ignores Pan American's express statement of equivalence between § 27's language and the federal question statute's: "Brought to enforce" has the same "limitation[s]" (meaning, the same scope) as "arising under." 366 U.S., at 665, n. 2, 81 S.Ct. 1303. And just as important, Merrill Lynch disregards Pan American's analytical structure: The decision proceeds by reviewing this Court's "arising under" precedents, articulating the principles animating that caselaw, and then applying those tenets to the dispute at hand. Id., at 662-665, 81 S.Ct. 1303. The Court thus showed (as well as told) that "brought to enforce" jurisdiction mirrors that of "arising under."
As a fallback, Merrill Lynch claims that Pan American is irrelevant here because it relied on legislative history distinct to the NGA in finding § 22's "brought to enforce" language coterminous with "arising under." See Brief for Petitioners 38-39. The premise of that argument is true enough: In support of its holding, the Court quoted a Committee Report describing § 22 as conferring federal jurisdiction "over cases arising under the act." 366 U.S., at 665, n. 2, 81 S.Ct. 1303. But we cannot accept the conclusion Merrill Lynch draws from that statement: that courts should give two identically worded statutory provisions, passed less than five years apart, markedly different meanings. Indeed, the result of Merrill Lynch's approach is still odder, for what of the eight other jurisdictional provisions containing "brought to enforce" language? See n. 3, supra. Presumably, Merrill Lynch would have courts inspect each of their legislative histories to decide whether to read those statutes as reproducing the "arising under" standard, adopting Merrill Lynch's alternative view, or demanding yet another jurisdictional test. We are hard pressed to imagine a less sensible way of construing the repeated iterations of the phrase "brought to enforce" in the jurisdictional provisions of the Federal Code.
In any event, this Court in Matsushita addressed § 27 itself, and once again equated the "brought to enforce" and "arising under" standards. That decision arose from a state-law action against corporate directors for breach of fiduciary duty. The issue was whether the state court handling the suit could approve a settlement releasing, in addition to the state claims actually brought, potential Exchange Act claims that § 27 would have committed to federal court. In deciding that the state court could do so, we described § 27-not once, not twice, but three times-as conferring exclusive jurisdiction of suits "arising under" the Exchange Act. See 516 U.S., at 380, 116 S.Ct. 873 (Section 27 "confers exclusive jurisdiction upon the federal courts for suits arising under the [Exchange] Act"); id., at 381, 116 S.Ct. 873 (Section 27 "prohibits state courts from adjudicating claims arising under the Exchange Act"); id., at 385, 116 S.Ct. 873 (Section 27 "prohibit[s] state courts from exercising jurisdiction over suits arising under the Exchange Act") (emphases added). Over and over, then, the Court took as a given that § 27's jurisdictional test mimicked the one in the general federal question statute.
And still more: The Matsushita Court thought clear that the suit as filed-which closely resembled Manning's in its mix of state and federal law-fell outside § 27's grant of exclusive jurisdiction. As just noted, the claims brought in the Matsushita complaint sought relief for breach of a state-law duty. But in support of those claims, the plaintiffs charged, much as Manning did here, that the defendants' conduct also violated federal securities laws. See 516 U.S., at 370, 116 S.Ct. 873 ; supra, at 1566 - 1567. We found the presence of that accusation insufficient to trigger § 27. "[T]he cause pleaded," we wrote, remained "a state common-law action," 516 U.S., at 382, n. 7, 116 S.Ct. 873 : Notwithstanding the potential federal issue, the suit "was not 'brought to enforce' any rights or obligations under the [Exchange] Act," id., at 381, 116 S.Ct. 873. The Court thus rejected the very position Merrill Lynch takes here-i.e., that § 27 precludes a state court from adjudicating any case, even if brought under state law, in which the plaintiff asserts an Exchange Act breach.
C
Construing § 27, consistent with both text and precedent, to cover suits that arise under the Exchange Act serves the goals we have consistently underscored in interpreting jurisdictional statutes. Our reading, unlike Merrill Lynch's, gives due deference to the important role of state courts in our federal system. And the standard we adopt is more straightforward and administrable than the alternative Merrill Lynch offers.
Out of respect for state courts, this Court has time and again declined to construe federal jurisdictional statutes more expansively than their language, most fairly read, requires. We have reiterated the need to give "[d]ue regard [to] the rightful independence of state governments"-and more particularly, to the power of the States "to provide for the determination of controversies in their courts." Romero, 358 U.S., at 380, 79 S.Ct. 468 (quoting Healy v. Ratta, 292 U.S. 263, 270, 54 S.Ct. 700, 78 L.Ed. 1248 (1934) ; Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109, 61 S.Ct. 868, 85 L.Ed. 1214 (1941) ). Our decisions, as we once put the point, reflect a "deeply felt and traditional reluctance... to expand the jurisdiction of federal courts through a broad reading of jurisdictional statutes." Romero, 358 U.S., at 379, 79 S.Ct. 468. That interpretive stance serves, among other things, to keep state-law actions like Manning's in state court, and thus to help maintain the constitutional balance between state and federal judiciaries.
Nor does this Court's concern for state court prerogatives disappear, as Merrill Lynch suggests it should, in the face of a statute granting exclusive federal jurisdiction. See Brief for Petitioners 23-27. To the contrary, when a statute mandates, rather than permits, federal jurisdiction-thus depriving state courts of all ability to adjudicate certain claims-our reluctance to endorse "broad reading[s]," Romero, 358 U.S., at 379, 79 S.Ct. 468 if anything, grows stronger. And that is especially so when, as here, the construction offered would place in federal court actions bringing only claims created by state law-even if those claims might raise federal issues. To be sure, a grant of exclusive federal jurisdiction, as Merrill Lynch reminds us, indicates that Congress wanted "greater uniformity of construction and more effective and expert application" of federal law than usual. Brief for Petitioners 24 (quoting Matsushita, 516 U.S., at 383, 116 S.Ct. 873 ). But "greater" and "more" do not mean "total," and the critical question remains how far such a grant extends. In resolving that issue, we will not lightly read the statute to alter the usual constitutional balance, as it would by sending actions with all state-law claims to federal court just because a complaint references a federal duty.
Our precedents construing other exclusive grants of federal jurisdiction illustrate those principles. In Pan American, for example, we denied that a state court's resolution of state-law claims potentially implicating the NGA's meaning would "jeopardize the uniform system of regulation" that the statute established. 366 U.S., at 665, 81 S.Ct. 1303. We reasoned that this Court's ability to review state court decisions of federal questions would sufficiently protect federal interests. And similarly, in Tafflin v. Levitt, 493 U.S. 455, 464-467, 110 S.Ct. 792, 107 L.Ed.2d 887 (1990), we permitted state courts to adjudicate civil RICO actions that might raise issues about the scope of federal crimes alleged as predicate acts, even though federal courts have exclusive jurisdiction "of all offenses against the laws of the United States," 18 U.S.C. § 3231. There, we expressed confidence that state courts would look to federal court interpretations of the relevant criminal statutes. Accordingly, we saw "no significant danger of inconsistent application of federal criminal law" and no "incompatibility with federal interests." Tafflin, 493 U.S., at 464-465, 467, 110 S.Ct. 792 (internal quotation marks omitted).
So too here, when state courts, in deciding state-law claims, address possible issues of the Exchange Act's meaning. Not even Merrill Lynch thinks those decisions wholly avoidable: It admits that § 27 does nothing to prevent state courts from resolving Exchange Act questions that result from defenses or counterclaims. See Brief for Petitioners 32-33; Pan American, 366 U.S., at 664-665, 81 S.Ct. 1303. We see little difference, in terms of the uniformity-based policies Merrill Lynch invokes, if those issues instead appear in a complaint like Manning's. And indeed, Congress likely contemplated that some complaints intermingling state and federal questions would be brought in state court: After all, Congress specifically affirmed the capacity of such courts to hear state-law securities actions, which predictably raise issues coinciding, overlapping, or intersecting with those under the Act itself. See 15 U.S.C. § 78bb(a)(2) ; Matsushita, 516 U.S., at 383, 116 S.Ct. 873. So, for example, it is hardly surprising in a suit like this one, alleging short sales in violation of state securities law, that a plaintiff might say the defendant previously breached a federal prohibition of similar conduct. See supra, at 1566 - 1567 (describing Manning's complaint). And it is less troubling for a state court to consider such an issue than to lose all ability to adjudicate a suit raising only state-law causes of action.
Reading § 27 in line with our § 1331 caselaw also promotes "administrative simplicity[, which] is a major virtue in a jurisdictional statute." Hertz Corp. v. Friend, 559 U.S. 77, 94, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010). Both judges and litigants are familiar with the "arising under" standard and how it works. For the most part, that test provides ready answers to jurisdictional questions. And an existing body of precedent gives guidance whenever borderline cases crop up. See supra, at 1569 - 1570. By contrast, no one has experience with Merrill Lynch's alternative standard, which would spring out of nothing to govern suits involving not only the Exchange Act but up to nine other discrete spheres of federal law. See n. 3, supra (listing statutes with "brought to enforce" language); supra, at 1572 - 1573 (noting Merrill Lynch's backup claim that legislative histories might compel different tests for different statutes). Adopting such an untested approach, and forcing courts to toggle back and forth between it and the "arising under" standard, would undermine consistency and predictability in litigation. That result disserves courts and parties alike.
Making matters worse, Merrill Lynch's rule is simple for plaintiffs to avoid-or else, excruciating for courts to police. Under that rule, a plaintiff electing to bring state-law claims in state court will purge his complaint of any references to federal securities law, so as to escape removal. Such omissions, after all, will do nothing to change the way the plaintiff can present his case at trial; they will merely make the complaint less informative. Recognizing the potential for that kind of avoidance, Merrill Lynch argues that a judge should go behind the face of a complaint to determine whether it is the product of "artful pleading." See Tr. of Oral Arg. 7 (If the plaintiffs "had just literally whited out, deleted the references to Reg [ulation] SHO," the court should still understand the complaint to allege a breach of that rule; "the fact [that the plaintiffs] didn't cite it wouldn't change the fact"). We have no idea how a court would make that judgment, and get cold comfort from Merrill Lynch's assurance that the question would arise not in this case but in "the next third, fourth, fifth case down the road." Id., at 8. Jurisdictional tests are built for more than a single dispute: That Merrill Lynch's threatens to become either a useless drafting rule or a tortuous inquiry into artful pleading is one more good reason to reject it.
III
Section 27 provides exclusive federal jurisdiction of the same class of cases as "arise under" the Exchange Act for purposes of § 1331. The text
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
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sc_caseorigin
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UNITED STATES v. PENN FOUNDRY & MANUFACTURING CO., INC.
No. 253.
Argued January 7, 10, 1949.
Decided May 31, 1949.
Melvin Richter argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Morison and Paul A. Sweeney.
Robert H. McNeill and David G. Bress argued the cause for respondent. With them on the brief were Sheldon E. Bernstein and T. Bruce Fuller.
Mr. Justice Burton
delivered the opinion of the Court.
This is an action which was brought in the Court of Claims by the respondent, Penn Foundry and Manufacturing Company, Inc., against the United States for loss of anticipated profits alleged to have been caused by the latter’s cancellation of a contract for gun mounts for the Navy. The cancellation occurred a few days after the contract had been awarded by the United States to the respondent on February 23, 1942. The question presented is whether the findings of fact made by the Court of Claims are sufficient to sustain its judgment requiring the United States to pay for such loss. 110 Ct. Cl. 374, 75 F. Supp. 319. We hold that they are not. We so hold because of (1) the absence of any finding of the readiness and capacity of the respondent to perform certain of its contractual obligations upon which its profits were contingent and (2) the presence of certain affirmative findings which preclude the drawing of any sufficient inference of such readiness and capacity from the other findings.,
The record includes only the pleadings and accompanying exhibits filed in the Court of Claims,and that court’s special findings of fact, conclusion of law, opinion, judgment and refusal to grant a new trial. We do not have before us the report which its Commissioner made to the Court of Claims or: the testimony upon which he or that court relied. While, additional claims were made.by the respondent in its original petition to the Court of Claims and-while the United States originally contested the binding force of the contract, the errors specified in the present proceeding question only the right of the respondent to recover $80,000; as damages for its alleged loss of anticipated profits. We_gr anted certiorari because of the.possible relation of the result in this case to claims finder many war contracts cancelled by the JJnited States. 335 U. S. 857.
The findings of fact show the following:
In 1911, the respondent bought a manufacturing plant consisting of six buildings in Waynesboro, Virginiá. The main buildings, each 57 x.100 feet, ¿ad been built in 1890 and were referred to respectively as the machine shop, the foundry and the blacksmith shop..At one time the respondent manufactured circular saws and, at another, did work on brake shoes. Since 1931, the plant had been used only for minor engagements, requiring not more than four.or five.employe'es. It had been idle for some, years when, la,te in 1940''or early in 1941, the respondent’s of-, ficers became desirous of engaging in the National Defense Program. -.Most of those officers were then in other businesses at or.near Pittsburgh, Pennsylvania. One stockholder and.director was in. the real estate business in Waynesboro. Be had been the local manager, of the plant when it was in operation and had continued thereafter as such and as thq statfitory agent of the company.
. In!January, 1941, the respondent engaged an additional man as assistant to the president and, on February 24,1942, an engineer as general manager. In April, 1941, it submitted a proposal to the Navy for the manufacture' of 500 3-inch 50,-caliber gun mounts. In July, a representative of the Gun Mount Section of the Navy Department inspected the plant. Following a conference in September, the respondent was asked by the Government to furnish information as to financial ability, commit-' ments of subcontractors, and a detailed study of the machine tool operations, predicated upon a possible award of 150 3-inch 50-caliber mounts. In October and December, the respondent submitted additional information and slightly modified its proposals. December 22, the respondent’s proposal as to prices, quantities, delivery schedule, payments and options for additional mounts was accepted as satisfactory and the respondent agreed to secure a letter from a surety company indicating that a bond of the nature required by the Navy’s Bureau of Supplies and Accounts would be furnished'.
The respondent received a “letter of intent,” dated December 29, 1941, signed by the Paymaster General of the Navy as contracting officer and approved by the Under Secretary of the Navy. It stated that it was anticipated that the Navy Department would place an order with the respondent for the manufacture of 150 gun mounts. It specified the delivery of two complete mounts in May, 1942, three in June, five in July, and thereafter at a minimum rate of ten mounts per month. The letter also authorized the respondent to purchase materials and spare parts, subject to confirmation by the Government’s purchasing officer, and to proceed with the production of the mounts in anticipation of the placing of the order for their production. However, under date of January 7, 1942, the Government held up this authorization of expenditures until such time as the respondent furnished the Government with the firm commitment of an approved surety company to act as surety on a performance bond. January 10, the respondent accepted the letter of intent. January 29, the Navy Department stated that the necessary letter from a surety company had not beeñ received and that failure promptly to submit such a letter might result, in the termination of the letter of intent. February 3, the respondent’s representatives submitted a letter from a surety company indicating that that company thought that a bond in connection with a contract of this size would have to be, reinsured and that, unless some change were made in the financial setup, reinsurance would be declined. It added, however, that, if either of two suggested plans relative to refinancing were accomplished and if the respondent furnished certain information as to new key personnel to be engaged by the respondent, then the reinsurance could be obtained and the surety company could execute a bond. The findings of fact disclose a difference in the testimony as. to. the reaction of the Government's, representative to this-letter. -There is no finding that the Government’s requirement in this regard ever was met.
Much in the following findings of fact Nos. 5-8 is vital to the issue before us:
“5. On January 16 and 17, 1942, plaintiff’s plant,, was visited by inspectors of the Philadelphia Inspection District of the Navy Department to instruct plaintiff’s personnel as to the Navy inspection requirements. At the time there was no one at the plant except the watchman and the local manager. No work at dll was being performed at the time. On February 19, 1942, á production specialist from the War Production Board visited the plant. His duties were to assist production in factories in the production of naval ordnance. At that time only the watchman was at jt%e plant. The production specialist inspected the plant with the local manager, who was called from his, real estate office, and also talked with Mr: Johnson [the new assistant to the president], who was called to Waynesboro for that purpose. Reports of these visits were given to the Navy Department. At that time the comyany was not prepared to undertake work of the character proposed by the contract, and would not for ah indefinite time be prepared successfully to complete a contract for 150 gun mounts. Plaintiff’s foundry was incapable of production of the cast steel forgings required for the gun mounts. It was plaintiff’s plan, as shown by its proposal to the Government, to subcontract for these eastings, as well as for other parts of the work. Plaintiff had contacted certain producers, who were willing to furnish castings and other parts, but no contracts for the castings or any other, parts had been made by plaintiff. There was no reason to suppose that the plaintiff could not have obtained these parts from subcontractors. Plaintiff planned to use around 150 mechanics, skilled, semi-skilled, and unskilled, in the. machining and assembling of the. gun mounts. Plaintiff had expected to secure former railroad shop mechanics residing near Waynesboro as the bulk of its employees. The construction of gun mounts is difficult and exacting work.. Manufacturers experienced in somewhat similar work with large organizations and trained mechanics required from seven months to one year from the time of receiving notice to proceed until the first gun mounts were produced. Plaintiff had no manufacturing organization and no force of trained personnel to- train unskilled employees. Plaintiff’s proposed general manager was at this time a regular employee of another company in Ohio. He had been assisting plaintiff in its plans under the expectation that he would sever his connection with the other company and become plaintiff’s general «manager. A contract between.plaintiff and the engineer under the terms of which the engineer was engaged as general manager was executed on February 24, 1942.
“6. Under date of February 23, 1942, the Navy Department mailed to plaintiff a notice of award of contract, No. LL96553, for gun mounts, in the amount of $2,087,555, which notice of award was received by the plaintiff on February 24, 1942. On February 24, 1942, after it had received the notice of award, plaintiff received a telegram as follows:
“NOTICE OF AWARD CONTRACT NOS 96553 FORWARDED IN ERROR RETURN FOR CANCELLATION NO AWARD TO YOU ACKNOWLEDGE REFERRING SYMBOL SPF—
“RAY SPEAR. PAYMASTER GENERAL NAVY
“On March 5, 1942, the Navy Department prepared and mailed to plaintiff a letter as follows:
“As it is apparent that you cannot secure a bond to insure faithful performance of the, contract, no contract will be issued to you, and the Letter of" Intent LL-NOs-96553 (SPC), dated- 29 December 1941, is hereby cancelled.
“Since- no authority has been given- you to incur any expenses under the Letter of Intent, there can be no liability on the Government by reason of the cancellation of the Letter of Intent.
“Please return the original and all copies of the Letter of Intent, unsigned, to the Bureau of Supplies and Accounts for cancellation.
. “7.... The evidence does not disclose that any expenditures- or expenses were incurred in reliance on the letter of intent or notice of.award of contract.
“8. If the plaintiff had been permitted to perform its contract, it would have made a net profit of not less than $80,000.” (Emphasis supplied.) 110 Ct. Cl. at pp. 378-381. -'■
We are bound by the foregoing findings in testing the court’s conclusion of law and judgment that the respondent is entitled to recover $80,000 for the loss of anticipated but unearned profits. United States v. Causby, 328 U. S. 256, 267; United States v. Seminole Nation, 299 U. S. 417, 422; United States v. Esnault-Pelterie, 299 U. S. 201, 205, 206; Crocker v. United States, 240 U. S. 74, 78; Stone v. United States, 164 U. S. 380, 382, 383.
The restricted scope of the errors sought to be reached by the petition for certiorari has eliminated all questions as to the binding force of the contract. The Government, however, argues that-, under/ the then existing statutes and regulations, it had a right to cancel the contract at its option without incurring liability for the respondent’s alleged loss of anticipated profits caused by such cancellation. It argues also that the practice of iñserting, in each contract for war supplies, an express provision permitting such a cancellation by the United States had developed to such an extent that we should recognize the provisions as constituting a part of the formal contract which the Government stated was to follow the award made to the respondent, February 23, 1942. It is not necessary, however, to sustain those claims in order to support the disposition which we are making of this case.
The Government argues further that the amount of the damages claimed by the respondent is not established with reasonable certainty by the findings of fact. The only finding as to the amount of such damages is the ultimate finding of fact No. 8, which says that “If the plaintiff had been permitted to perform its contract, it would have-made a net profit of not less than $80,000.” There are no findings of evidentiary or primary facts on the subject of damages or the computation of anticipated net profits. The total payment to be made to the respondent for full performance of its part of the contract was fixed by the award at' $2,087,555. ■ Accordingly, the amount of the gross receipts anticipated by the respondent is not a remote or speculative estimate of the kind often encountered in claims for anticipated profits. This Court long has recognized the right to recover damages for the loss of anticipated profits when they result from a breach of contract and when there is a sufficient basis for estimating them with reasonable certainty. However, finding No. 8 as. to the anticipated net profits in the instant case stands alone. Its sufficiency.is open to argument in the absence of any findings as to -the costs of production. The respondent seeks support for it in the indirect light thrown upon it by the opinion of the court below. However, even if that opinion may be resorted to to help interpret, although not to supplement, the court’s findings of fact, it does not materially strengthen the respondent’s position. For example, after reciting certain of the respondent’s handicaps in supplying the gun mounts, to say nothing of supplying them at a net profit, the opinion says (p.387):
“We think that the consideration and tolerance with which the Government, during the time here in question, treated contractors actually engaged in producing defense material, if the contractor in good faith did his best to perform, is an indication that the plaintiff, if allowed to perform, would probably have succeeded in making a profit.
“On the other hand, it must be said that the plaintiff would have had problems and difficulties that an active, going concern would not have had,' and those difficulties would probably have adversely affected its profits. On the whole we can do only what a jury would do in a similar case. We conclude that the plaintiff would probably have made net profits of about 4% of the gross contract price, and we award it $80,000.”
The opinion contributes nothing on the subject of costs except an emphasis upon the burden of them. The opinion points only to a suggested rule of thumb as a means of estimating the respondent’s anticipated net profits. It suggests that- the net profits, under the circumstances of this case, should be “about 4% of the gross contract price,
Whether or not a reexamination/ of all the evidence that was before the court below might.cure this uncertainty, we cannot tell. We can conclude only that, on the limited findings before us, the amount, if any, of the respondent’s anticipated net profit rests upon that court’s rough estimate rather than upon its findings of evidentiary facts. We do not, however, decide the case on that issue.- More fundamental to the respondent’s case than the amount of its anticipated profits is the need for proof of the highly material facts of its willingness, readiness and capacity, to manufacture and deliver the required gun mounts in the quantities and at the times specified.
1. There is no finding of the readiness and capacity of the respondent to deliver the gun mounts in the quantities and at the times required by the contract. — In the absence of actual tenders of the required gun mounts, such readiness and capacity are essential facts material to the respondent’s right to receive payments under the contract. Without a right to such payments the respondent could realize no profits. • See Restatement, Contracts §§ 284, 280 (1), 281, 318 (c), 395, 397 (1932). This issue goes deeper than that of the required reasonable certainty of the amount of the anticipated net profits claimed as damages. In a number of cases where this Court has allowed recovery for the loss of anticipated profits, it has emphasized its finding of a demonstrated willingness, readiness and capacity, on the part of the claimant, \fo perform the obligations which, if performed, would have entitled the claimant to payment under the contract. Eor example, in United States v. Purcell Envelope Co., 2,49 U. S. 313, the United States, without adequate cause to do so, can-celled a recently made contract to purchase, from the Purcell Envelope Company, a four-years’ supply of envelopes and' wrappers for the Post Office Department for $2,460,556.22. This Court affirmed a judgment of the Court of Claims awarding the company $185,331.76 for its loss of anticipated net profits which it would have received if it had been allowed to perform the contract. In that case this Court said (p. 316): “The Envelope Company had, however, already made arrangements and contracts for the supplying to it of the necessary materials to fulfill the terms of the contract and was ready and willing at' all times to fully perform it according to its terms.”' Again (p. 319): “'“There is no charge of default, against the Envelope Company, no charge of inability to perform its contract,....” And finally (p. 321): “The court' [of Claims] in its opinion expressly declares that the findings showed that the Envelope Company had fulfilled all the requirements of the Postmaster General and was ready and willing to furnish the envelopes and wrappers....” See also, Hinckley v. Pittsburgh Steel Co., 121 U. S. 264, 276; Smoot’s Case, 15 Wall. 36, 44; United States v. Speed, 8 Wall. 77, 84.
In its petition for a writ of certiorari in the instant case, the United States specified that the Court of Claims erred in failing to make the finding that the respondent had not proved that it could have successfully performed the contract and made a profit thereon. Whether or not it was error to fail to make such an express finding of the respondent’s failure of proof, it is clear that there was wholly absent from the court’s findings any express statement that the respondent was ready and capable of per-. forming its obligations under the contract. It did constitute error to' render judgment for recovery of damages by the respondent in the absence of that material fact. There remains only the question whether an inference of the required readiness and capacity of the respondent to perform its obligations under the contract can be inferred from the other findings.
2. The presence of certain affirmative findings precludes the drawing of any sufficient inference of the respondent’s readiness and capacity to deliver the gun mounts in the quantities and at the times required.— The respondent has the burden of proof. Finding of fact No. 5, quoted in full, supra, at pp. 202-203, tells the story. The affirmative evidentiary findings there made add up to an inescapable ultimate finding that the respondent was not either ready or capable of making the required deliveries of two complete gun mounts in May, 1942, three, in June, five in July and thereafter at a minimum rate of ten,gun mounts a month. February 19, about three and one-third months before the first delivery was due, production was not under way, even in a preliminary stage.
“At that time the company was not prepared to undertake work of the character proposed by the contract, and would not for an indefinite time be prepared successfully to.complete a contract for 150 gun mounts.... Manufacturers experienced in somewhat similar work with large organizations and trained mechanics required from Seven months to one year from the time of receiving notice to proceed until the first gun mounts were produced. Plaintiff had no manufacturing organization and no force of trained personnel to train unskilled employees.” Finding No. 5, 110 Ct. Cl..at p. 379.
The findings of fact show also that the following statement was made to the respondent in the Government’s letter of March 5, 1942, after the Government’s insistence upon a performance bond: “As it is apparent that you cannot secure a bond to insure faithful performance of the contract, no contract will be issued to you,.....” Finding No. 6, id. at p. 380. There is no finding that the respondent ever met or was capable of meeting this requirement.
As against these devastating findings, only finding of. fact No. 8 even suggests the respondent’s readiness and capacity to perform the obligations necessary to entitlé it to compensation under the contract. It says: “If the plaintiff had been permitted to perform its contract, it would have made a net profit of not less than $80,000.” Id. at p. 381.
This is no more than á rough estimate by the Court of Claims of what would be the amount of the respondent’s reasonably anticipated profits if the contract were completed. It is not a finding that the respondent was ready and capable of making the deliveries upon which such profits must depend.' The striking fact is. that the other findings of the Court of Claims show that the respondent was not prepared to make those deliveries and that-this was due to the respondent’s own lack of capacity to perform its obligations. To support the judgment of the court below, this ultimate finding of fact No. 8 would have to be read as itself supplying the missing finding of the respondent’s readiness and capacity to perform its full obligations. In that role it fails utterly. It not only contains no evidentiary findings on the subject but if it is regarded as implying'them they come into direct conflict with the evidentiary findings of fáct, Nos. 5 and 6, to the contrary/
The possibility, suggested in the opinion, of. securing from the Gíovernment gratuitous extensions, of time or concessions in the numbers of gun mounts to be delivered may have'justified the respondent’s hope that'it might ultimately produce,' with inexperienced labor in its rehabilitated plant, the new products called for by the contract. Such a possibility', however, cannot justify the award of'money damages by the Court of Claims to equal a loss of unearned anticipated profits dependent upon such 'possible gratuitous extensions or concessions. Even assuming the willingness of the respondent to perform its obligations, proof of its essential readiness and capacity to do so is missing.
The judgment of the Court of Claims accordingly is reversed and the cause is remanded with direction to enter judgment in favor of the United States.
Reversed.
Mr. Justice Reed and Mr. Justice Jackson concur in the reversal and dissent from the order to enter judgment in favor of the United States. In their opinion, respondent should have an opportunity to meet the stated requirements of proof.
The Government’s brief says in a footnote that “The- finding of the court below that a binding contract was consummated is, in our view, of doubtful soundness.” However, in the same brief,.the Government says that “The United States does not question in this Court the Court of Claims’ holding that the notice of award sent by the Award Section of the Navy Department’s Bureau of Supplies' and Accounts created a binding contract between the United States- and Fespondent. on February 23, 1943 [1942].” The Court of Claims said in its opinion: “We think that the Government made a contract with the plaintiff, and that no mistake Of the kind which would vitiate a contract occurred,” 110 Ct. Cl. at p. 385. In its specification of errors to be urged, and in its statement of the- questions presented by its.petition for a writ of certiorari,, the Government does not question the binding force of the contract. -“Only the questions specifically brought forward- by the petitiqn for, writ of certiorari will be considered.” Rule 38, ¶ 2, of this Court; -
Title II, First War Powers Act of 1941, c. 593, 55 Stat. 839, § 201, 50 U. S. C. App/§ 611.; Executive Order No. 9001, 3 C. F. R. Cum. Supp. 1054r-1056".'.See.also, Contract Settlement Act of 1944, c..35S, 58 Stat, 649, 41 U..S. C. § 101,’ct seq.; Act of-'August 7, 1946, c. 864, 60 Stat. 902, 41 U. S. C. § 106 note; Regulation No. 7,. Office of Contract Settlement, 32 C. F. R. 1944 Supp., §8006.3 (c),' p. 3065; Office of Contract Settlement, A History of War Contract Terminations and Settlements, p. 27 (July, 1947). As to comparable legislation affecting contracts for supplies in World War I, see Act ’ of June 15, 1917, c. 29, 40 Stat. 182; Act of March 2, 1919, c. 94, 40 Stat. 1272; De Laval Steam Turbine Co. v. United States, 284 U. S. 61; Barrett Co. v. United States, 273 U. S. 227; College Point Boat Corp. v. United States, 267 U. S. 12; Russell Co. v. United States, 261 U. S
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190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
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sc_authoritydecision
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C
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What follows is an opinion from the Supreme Court of the United States. Your task is to 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.
LEONARD v. UNITED STATES.
No. 1017, Misc.
Decided June 22, 1964.
John G. Clancy for petitioner.
Solicitor General Cox for the United States.
Per Curiam.
Petitioner was convicted in separate trials and by different juries of forging and uttering endorsements on government checks, 18 U. S. C. § 495, and of transportation of a forged instrument in interstate commerce, 18 U. S. C. § 2314. The two cases were tried in succession. The jury in the case tried first — forging and uttering endorsements — announced its guilty verdict in open court in the presence of the jury panel from which the jurors who were to try the second case — transportation of a forged instrument — were selected. Petitioner immediately objected to selecting a jury for the second case from among members of the panel who had heard the guilty verdict in the first case. The objection was overruled, and the actual jury which found petitioner guilty in the second case contained five jurors who had heard the verdict in the first case. The conviction in the second case was affirmed on appeal, 324 P. 2d 914, and petitioner now seeks a writ of certiorari.
The Solicitor General, in his brief filed in this Court, states that:
“The procedure followed by the district court in selecting the jury was, in our view, plainly erroneous. Prospective jurors who have sat in the courtroom and heard a verdict returned against a man charged with crime in a similar case immediately prior to the trial of another indictment against him should be automatically disqualified from serving at the second trial, if the objection is raised at the outset.”
We agree that under the circumstances of this case the trial court erred in denying petitioner’s objection. Accordingly the motion for leave to proceed in forma pau-peris and the petition for a writ of certiorari are granted, the judgment of conviction is reversed, and the cause is remanded for proceedings in conformity with this opinion.
It is so ordered.
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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150
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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.
FEDERAL COMMUNICATIONS COMMISSION v. PACIFICA FOUNDATION et al.
No. 77-528.
Argued April 18, 19, 1978
Decided July 3, 1978
Stevens, J., announced the Court’s judgment and delivered an opinion of the Court with respect to Parts I-III and IV-C, in which Burger, C. J'., and Rehnquist, J., joined, and in all but Parts IV-A and IV-B of which Blackmun and Powell, JJ., joined, and an opinion as to Parts IV-A and IV-B, in which Burger, C. J., and Rehnquist, J., joined.. Powell, J., filed an opinion concurring in part and concurring in the judgment, in which Blackmun, J., joined, post, p. 755. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 762. Stewart, J., filed a dissenting opinion, in which Brennan, White, and Marshall, JJ., joined, post, p. 777.
Joseph A. Marino argued the cause for petitioner. With him on the briefs were Robert R. Bruce and Daniel M. Armstrong.
Harry M. Plotkin argued the cause for respondent Pacifica Foundation. With him on the brief were David Tillotson and Harry F. Cole. Louis F. Claiborne argued the cause for the United States, a respondent under this Court’s Rule 21 (4). With him on the brief were Solicitor General McCree, Assistant Attorney General Civiletti, and Jerome M. Feit.
Briefs of amici curiae urging reversal were filed by Anthony H. Atlas for Morality in Media, Inc.; and by George E. Reed and Patrick F. Geary for the United States Catholic Conference.
Briefs of amici curiae urging affirmance were filed by J. Roger Wollen-berg, Timothy B. Dyk, James A. McKenna, Jr., Carl R. Ramey, Erwin G. Krasnow, Floyd Abrams, J. Laurent Scharff, Corydon B. Dunham, and Howard Monderer for the American Broadcasting Companies, Inc., et ah; by Henry R. Kaufman, Joel M. Gora, Charles Sims, and Bruce J. Ennis for the American Civil Liberties Union et al.; by Irwin Karp for the Authors League of America, Inc;'; by James Bouras, Barbara Scott, and Fritz E. Attaway for the Motion Picture Association of America, Inc.; and by Paul P. Selvin for the Writers Guild of America, West, Inc.
Charles M. Firestone filed a brief for the Committee for Open Media as amicus curiae.
Me. Justice Stevens
delivered the opinion of the Court (Parts I, II, III, and IV-C) and an opinion in which The Chief Justice and Me. Justice Rehnquist joined (Parts IV-A and IY-B).
This case requires that we decide whether the Federal Communications Commission has any power to regulate a radio broadcast that is indecent but not obscene.
A satiric humorist named George Carlin recorded a 12-minute monologue entitled “Filthy Words” before a live audience in a California theater. He began by referring to his thoughts about “the words you couldn’t say on the public, ah, airwaves, um, the ones you definitely wouldn’t say, ever.” He proceeded to list those words and repeat them over and over again in a variety of colloquialisms. The transcript of the recording, which is appended to this opinion, indicates frequent laughter from the audience.
At about 2 o’clock in the afternoon on Tuesday, October 30, 1973, a New York radio station, owned by respondent Pacifica Foundation, broadcast the “Filthy Words” monologue. A few weeks later a man, who stated that he had heard the broadcast while driving with his young son, wrote a letter complaining to the Commission. He stated that, although he could perhaps understand the “record’s being sold for private use, I certainly cannot understand the broadcast of same over the air that, supposedly, you control.”
The complaint was forwarded to the station for comment. In its response, Pacifica explained that the monologue had been played during a program about contemporary society’s attitude toward language and that, immediately before its broadcast, listeners had been advised that it included “sensitive language which might be regarded as offensive to some.” Pacifica characterized George Carlin as “a significant social satirist” who “like Twain and Sahl before him, examines the language of ordinary people.... Carlin is not mouthing obscenities, he is merely using words to satirize as harmless and essentially silly our attitudes towards those words.” Pacifica stated that it was not aware of any other complaints about the broadcast.
On February 21, 1975, the Commission issued a declaratory order granting the complaint and holding that Pacifica “could have been the subject of administrative sanctions.” 56 F. C. C. 2d 94, 99. The Commission did not impose formal sanctions, but it did state that the order would be “associated with the station’s license file, and in the event that subsequent complaints are received, the Commission will then decide whether it should utilize any of the available sanctions it has been granted by Congress.”
In its memorandum opinion the Commission stated that it intended to “clarify the standards which will be utilized in considering” the growing number of complaints about indecent speech on the airwaves. Id., at 94. Advancing several reasons for treating broadcast speech differently from other forms of expression, the Commission found a power to regulate indecent broadcasting in two statutes: 18 U. S. C. § 1464 (1976 ed.), which forbids the use of “any obscene, indecent, or profane language by means of radio communications,” and 47 U. S. C. § 303 (g), which requires the Commission to “encourage the larger and more effective use of radio in the public interest.”
The Commission characterized the language used in the Carlin monologue as “patently offensive,” though not necessarily obscene, and expressed the opinion that it should be regulated by principles analogous to those found in the law of nuisance where the “law generally speaks to channeling behavior more than actually prohibiting it.... [T]he concept of ‘indecent’ is intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.” 56 F. C. C. 2d, at 98.
Applying these considerations to the language used in the monologue as broadcast by respondent, the Commission concluded that certain words depicted sexual and excretory activities in a patently offensive manner, noted that they “were broadcast at a time when children were undoubtedly in the audience (i. e., in the early afternoon),” and that the prerecorded language, with these offensive words “repeated over and over,” was “deliberately broadcast.” Id., at 99. In summary, the Commission stated: “We therefore hold that the language as broadcast was indecent and prohibited by 18 U. S. C. [§] 1464.” Ibid.
After the order issued, the Commission was asked to clarify its opinion by ruling that the broadcast of indecent words as part of a live newscast would not be prohibited. The Commission issued another opinion in which it pointed out that it “never intended to place an absolute prohibition on the broadcast of this type of language, but rather sought to channel it to times of day when children most likely would not be exposed to it.” 59 F. C. C. 2d 892 (1976). The Commission noted that its “declaratory order was issued in a specific factual context,” and declined to comment on various hypothetical situations presented by the petition. Id., at 893. It relied on its “long standing policy of refusing to issue interpretive rulings or advisory opinions when the critical facts are not explicitly stated or there is a possibility that subsequent events will alter them.” Ibid.
The United States Court of Appeals for the District of Columbia Circuit reversed, with each of the three judges on the panel writing separately. 181 U. S. App. D. C. 132, 556 F. 2d 9. Judge Tamm concluded that the order represented censorship and was expressly prohibited by § 326 of the Communications Act. Alternatively, Judge Tamm read the Commission opinion as the functional equivalent of a rule and concluded that it was “overbroad.” 181 U. S. App. D. C., at 141, 556 F. 2d, at 18. Chief Judge Bazelon’s concurrence rested on the Constitution. He was persuaded that § 326’s prohibition against censorship is inapplicable to broadcasts forbidden by § 1464. However, he concluded that § 1464 must be narrowly construed to cover only language that is obscene or otherwise unprotected by the First Amendment. 181 U. S. App. D. C., at 140-153, 556 F. 2d, at 24-30. Judge Leventhal, in dissent, stated that the only issue was whether the Commission could regulate the language “as broadcast.” Id., at 154, 556 F. 2d, at 31. Emphasizing the interest in protecting children, not only from exposure to indecent language, but also from exposure to the idea that such language has official approval, id., at 160, and n. 18, 556 F. 2d, at 37, and n. 18, he concluded that the Commission had correctly condemned the daytime broadcast as indecent.
Having granted the Commission’s petition for certiorari, 434 U. S. 1008, we must decide: (1) whether the scope of judicial review encompasses more than the Commission’s determination that the monologue was indecent “as broadcast”; (2) whether the Commission’s order was a form of censorship forbidden by § 326; (3) whether the broadcast was indecent within the meaning of § 1464; and (4) whether the order violates the First Amendment of the United States Constitution.
I
The general statements in the Commission’s memorandum opinion do not change the character of its order. Its action was an adjudication under 5 U. S. C. § 554 (e) (1976 ed.); it did not purport to engage in formal rulemaking or in the promulgation of any regulations. The order “was issued in a specific factual context”; questions concerning possible action in other contexts were expressly reserved for the future. The specific holding was carefully confined to the monologue “as broadcast.”
“This Court... reviews judgments, not statements in opinions.” Black v. Cutter Laboratories, 351 U. S. 292, 297. That admonition has special force when the statements raise constitutional questions, for it is our settled practice to avoid the unnecessary decision of such issues. Rescue Army v. Municipal Court, 331 U. S. 549, 568-569. However appropriate it may be for an administrative agency to write broadly in an adjudicatory proceeding, federal courts have never been empowered to issue advisory opinions. See Herb v. Pitcairn, 324 U. S. 117, 126. Accordingly, the focus of our review must be on the Commission’s determination that the Carlin monologue was indecent as broadcast.
II
The relevant statutory questions are whether the Commission’s action is forbidden “censorship” within the meaning of 47 U. S. C. § 326 and whether speech that concededly is not obscene may be restricted as “indecent” under the authority of 18 U. S. C. § 1464 (1976 ed.). The questions are not unrelated, for the two statutory provisions have a common origin. Nevertheless, we analyze them separately.
Section 29 of the Radio Act of 1927 provided:
“Nothing in this Act shall be understood or construed to give the licensing authority the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the licensing authority which shall interfere with the right of free speech by means of radio communications. No person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means of radio communication.” 44 Stat. 1172.
The prohibition against censorship unequivocally denies the Commission any power to edit proposed broadcasts in advance and to excise material considered inappropriate for the airwaves. The prohibition, however, has never been construed to deny the Commission the power to review the content of completed broadcasts in the performance of its regulatory duties.
During the period between the original enactment of the provision in 1927 and its re-enactment in the Communications Act of 1934, the courts and the Federal Radio Commission held that the section deprived the Commission of the power to subject “broadcasting matter to scrutiny prior to its release,” but they concluded that the Commission’s “undoubted right” to take note of past program content when considering a licensee’s renewal application “is not censorship.”
Not only did the Federal Radio Commission so construe the statute prior to 1934; its successor, the Federal Communications Commission, has consistently interpreted the provision in the same way ever since. See Note, Regulation of Program Content by the FCC, 77 Harv. L. Rev. 701 (1964). And, until this case, the Court of Appeals for the District of Columbia Circuit has consistently agreed with this construction. Thus, for example, in his opinion in Anti-Defamation League of B’nai B’rith v. FCC, 131 U. S. App.. D. C. 146, 403 F. 2d 169 (1968), cert. denied, 394 U. S. 930, Judge Wright forcefully pointed out that the Commission is not prevented from canceling the license of a broadcaster who persists in a course of improper programming. He explained:
“This would not be prohibited ‘censorship,’... any more than would the Commission’s considering on a license renewal application whether a broadcaster allowed ‘coarse, vulgar, suggestive, double-meaning’ programming ; programs containing such material are grounds for denial of a license renewal.” 131 U. S. App. D. C., at 150-151, n. 3, 403 F. 2d, at 173-174, n. 3.
See also Office of Communication of United Church of Christ v. FCC, 123 U. S. App. D. C. 328, 359 F. 2d 994 (1966).
Entirely apart from the fact that the subsequent review of program content is not the sort of censorship at which the statute was directed, its history makes it perfectly clear that it was not intended to limit the Commission’s power to regulate the broadcast of obscene, indecent, or profane language. A single section of the 1927 Act is the source of both the anticensorship provision and the Commission’s authority to impose sanctions for the broadcast of indecent or obscene language. Quite plainly, Congress intended to give meaning to both provisions. Respect for that intent requires that the censorship language be read as inapplicable to the prohibition on broadcasting obscene, indecent, or profane language.
There is nothing in the legislative history to contradict this conclusion. The provision was discussed only in generalities when it was first enacted. In 1934, the anticensorship provision and the prohibition against indecent broadcasts were re-enacted in the same section, just as in the 1927 Act. In 1948, when the Criminal Code was revised to include provisions that had previously been located in other Titles of the United States Code, the prohibition against obscene, indecent, and profane broadcasts was removed from the Communications Act and re-enacted as § 1464 of Title 18. 62 Stat. 769 and 866. That rearrangement of the Code cannot reasonably be interpreted as having been intended to change the meaning of the anticensorship provision. H. R. Rep. No. 304, 80th Cong., 1st Sess., A106 (1947). Cf. Tidewater Oil Co. v. United States, 409 U. S. 151, 162.
We conclude, therefore, that § 326 does not limit the Commission’s authority to impose sanctions on licensees who engage in obscene, indecent, or profane broadcasting.
Ill
The only other statutory question presented by this case is whether the afternoon broadcast of the “Filthy Words” monologue was indecent within the meaning of § 1464. Even that question is narrowly confined by the arguments of the parties.
The Commission identified several words that referred to excretory or sexual activities or organs, stated that the repetitive, deliberate use of those words in an afternoon broadcast when children are in the audience was patently offensive, and held that the broadcast was indecent. Pacifica takes issue with the Commission’s definition of indecency, but does not dispute the Commission’s preliminary determination that each of the components of its definition was present. Specifically, Pacifica does not quarrel with the conclusion that this afternoon broadcast was patently offensive. Pacifica’s claim that the broadcast was not indecent within the meaning of the statute rests entirely on the absence of prurient appeal.
The plain language of the statute does not support Pacifica’s argument. The words “obscene, indecent, or profane” are written in the disjunctive, implying that each has a separate meaning. Prurient appeal is an element of the obscene, but the normal definition of “indecent” merely refers to noncon-formance with accepted standards of morality.
Pacifica argues, however, that this Court has construed the term “indecent” in related statutes to mean “obscene,” as that term was defined in Miller v. California, 413 U. S. 15. Pacifica relies most heavily on the construction this Court gave to 18 U. S. C. § 1461 in Hamling v. United States, 418 U. S. 87. See also United States v. 12 200-ft. Reels of Film, 413 U. S. 123, 130 n. 7 (18 U. S. C. § 1462) (dicta). Hamling rejected a vagueness attack on § 1461, which forbids the mailing of “obscene, lewd, lascivious, indecent, filthy or vile” material. In holding that the statute’s coverage is limited to obscenity, the Court followed the lead of Mr. Justice Harlan in Manual Enterprises, Inc. v. Day, 370 U. S. 478. In that case, Mr. Justice Harlan recognized that § 1461 contained a variety of words with many shades of meaning. Nonetheless, he thought that the phrase “obscene, lewd, lascivious, indecent, filthy or vile,” taken as a whole, was clearly limited to the obscene, a reading well grounded in prior judicial constructions: “[T]he statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex.” 370 U. S., at 483. In Hamling the Court agreed with Mr. Justice Harlan that § 1461 was meant only to regulate obscenity in the mails; by reading into it the limits set by Miller v. California, supra, the Court adopted a construction which assured the statute’s constitutionality.
The reasons supporting Hamling’s construction of § 1461 do not apply to § 1464. Although the history of the former revealed a primary concern with the prurient, the Commission has long interpreted § 1464 as encompassing more than the obscene. The former statute deals primarily with printed matter enclosed in sealed envelopes mailed from one individual to another; the latter deals with the content of public broadcasts. It is unrealistic to assume that Congress intended to impose precisely the same limitations on the dissemination of patently offensive matter by such different means.
Because neither our prior decisions nor the language or history of § 1464 supports the conclusion that prurient appeal is an essential component of indecent language, we reject Pacifica’s construction of the statute. When that construction is put to one side, there is no basis for disagreeing with the Commission’s conclusion that indecent language was used in this broadcast.
IV
Pacifica makes two constitutional attacks on the Commission’s order. First, it argues that the Commission’s construction of the statutory language broadly encompasses so much constitutionally protected speech that reversal is required even if Pacifica’s broadcast of the “Filthy Words” monologue is not itself protected by the First Amendment. Second, Pacifica argues that inasmuch as the recording is not obscene, the Constitution forbids any abridgment of the right to broadcast it on the radio.
A
The first argument fails because our review is limited to the question whether the Commission has the authority to proscribe this particular broadcast. As the Commission itself emphasized, its order was “issued in a specific factual context.” 59 F. C. C. 2d, at 893. That approach is appropriate for courts as well as the Commission when regulation of indecency is at stake, for indecency is largely a function of context — it cannot be adequately judged in the abstract.
The approach is also consistent with Red Lion Broadcasting Co. v. FCC, 395 U. S. 367. In that case the Court rejected an argument that the Commission’s regulations defining the fairness doctrine were so vague that they would inevitably abridge the broadcasters’ freedom of speech. The Court of Appeals had invalidated the regulations because their vagueness might lead to self-censorship of controversial program content. Radio Television News Directors Assn. v. United States, 400 F. 2d 1002, 1016 (CA7 1968). This Court reversed. After noting that the Commission had indicated, as it has in this case, that it would not impose sanctions without warning in cases in which the applicability of the law was unclear, the Court stated:
“We need not approve every aspect of the fairness doctrine to decide these cases, and we will not now pass upon the constitutionality of these regulations by envisioning the most extreme applications conceivable, United States v. Sullivan, 332 U. S. 689, 694 (1948), but will deal with those problems if and when they arise.” 395 U. S., at 396-.
It is true that the Commission’s order may lead some broadcasters to censor themselves. At most, however, the Commission’s definition of indecency will -deter only the broadcasting of patently offensive references to excretory and sexual organs and activities. While some of these references may be protected, they surely lie at the periphery of First Amendment concern. Cf. Bates v. State Bar of Arizona, 433 U. S. 350, 380-381. Young v. American Mini Theatres, Inc., 427 U. S. 50, 61. The danger 'dismissed so summarily in Red Lion, in contrast, was that broadcasters would respond to the vagueness of the regulations by refusing to present programs dealing with important social and political controversies. Invalidating any rule on the basis of its hypothetical application to situations not before the Court is “strong medicine” to be applied “sparingly and only as a last resort.” Broadrick v.
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_const1
|
105
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
UNITED STATES of America, Plaintiff-Appellee, v. Hardy JONES, Defendant-Appellant.
No. 89-50379.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 4, 1990.
Decided July 12, 1990.
Jay L. Lichtman, Los Angeles, Cal., for defendant-appellant.
Ellyn Lindsay, Asst. U.S. Atty., Los An-geles, Cal., for plaintiff-appellee.
Before BROWNING and PREGERSON, Circuit Judges, and ORRICK, District Judge.
The Hon. William H. Orrick, Jr., United States District Judge for the Northern District of California, sitting by designation.
PER CURIAM:
Hardy Jones appeals his sentence imposed under the United States Sentencing Guidelines (U.S.S.G. or Guidelines) following his conviction by guilty plea for two counts of unarmed bank robbery, in violation of 18 U.S.C. § 2113(a). The district court sentenced Jones to two concurrent terms of fifteen years imprisonment and five years probation.
Jones contends that the Guidelines as a whole violate due process on their face, and that the district court’s application of the Guidelines’ career offender provision in this case violated due process. Jones also contends that the district court erred by failing to make the fact findings required by Federal Rule of Criminal Procedure 32(c)(3)(D), and by failing to hold an evidentiary hearing to resolve factual disputes.
Judgment was entered on July 24, 1989, and Jones timely filed his notice of appeal on the same day. The district court filed a sentencing order on July 28, 1989. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
BACKGROUND
Jones’s presentence report listed three prior convictions for purposes of Guidelines § 4B1.1: (1) assault with intent to commit murder and assault with a deadly weapon on January 31, 1979; (2) robbery on September 26, 1978; and (3) robbery on November 27, 1974. In his written objections to the presentence report, Jones acknowledged the 1978 robbery but contended the 1974 robbery and the 1979 assault should not be considered prior convictions under section 4B1.1. He argued: (1) that the 1979 assault conviction was not a prior conviction for a crime of violence because it was an act of self-defense in response to gang-related violence in prison; and (2) that his sentencing in 1974 was an erroneous resentencing for a 1971 conviction.
At the sentencing hearing on July 17, 1989, the district court stated: “With respect to the priors, the career offender priors, contained in paragraph 50, 56, and 58 of the presentence report, the Court finds that all priors are valid.” In its sentencing order, filed eleven days later, the district court found “the challenged information within the presentence report to be factually accurate.” With regard to the 1979 assault, the court stated: “The Court also rejects defendant’s self-defense challenge to the conviction listed in paragraph 58 of the presentence report. That conviction, for assault with intent to commit murder, is for a crime of violence which was properly considered in classifying defendant as a career offender under § 4B1.1 of the Sentencing Guidelines.” With regard to the 1974 robbery, the court stated: “Defendant’s incarceration for that conviction within fifteen years of the instant offense was not the result of a judicial mistake.”
DISCUSSION
I. Due Process Challenges
This court recently determined that the Guidelines do not unduly limit -the sentencing court’s discretion to individualize a defendant’s sentence, and thus do not violate substantive or procedural due process. United States v. Brady, 895 F.2d 538 (9th Cir.1990). We affirm the district court’s determination that the Guidelines do not violate due process either on their face or as applied in this case. See id. at 544.
II. Findings Under Rule 32(c)(3)(D)
Jones contends that the district court did not effectively make the findings required by Federal Rule of Criminal Procedure 32(c)(3)(D) because the court lacked jurisdiction to issue the sentencing order on July 28, 1989, after Jones had filed his notice of appeal on July 24, 1989. The government contends that the district court retained jurisdiction because Jones’s notice of appeal was premature. Because we hold that the findings made by the district court at the sentencing hearing satisfied Rule 32, we need not reach the question whether the district court lacked jurisdiction to issue the July 28, 1989 sentencing order.
The Guidelines establish policy for resolving reasonable disputes over factors important to sentencing determinations. Guidelines § 6A1.3. Guidelines § 6A1.3(b) provides that the court “shall resolve disputed sentencing factors in accordance with Rule 32(a)(1), Fed.R.Crim.P.” Federal Rule of Criminal Procedure 32(c)(3)(D) “helps to ensure that due process is achieved at sentencing.” United States v. Kerr, 876 F.2d 1440, 1445 (9th Cir.1989) (citing United States v. Messer, 785 F.2d 832, 834 (9th Cir.1986)). The Rule requires that if the defendant alleges any factual inaccuracy in the presentence report, the court shall “make (i) a finding as to the allegation, or (ii) a determination that no such finding is necessary because the matter controverted will not be taken into account in sentencing.” Fed.R.Crim.P. 32(c)(3)(D); see Kerr, 876 F.2d at 1445-46. When a defendant challenges the factual accuracy of a presentence report, strict compliance with the Rule is required. United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir.1990) (en banc); United States v. Pettito, 767 F.2d 607, 609-10 (9th Cir.1985).
Here we determine whether the district court’s oral findings at the sentencing hearing complied with Rule 32. We hold that the district court did not violate the rule in this case.
At the hearing, the district court made findings that the 1979 assault conviction and the 1974 robbery conviction were “valid” prior convictions for purposes of section 4B1.1. Jones’ assertion that he had a defense to the 1979 assault to which he pled guilty was invalid as a matter of law; he pled guilty to assault, and may not now assert a defense to that assault charge. His challenge to the consideration of the 1979 conviction did not raise a reasonable factual dispute. The district judge, therefore, was not required to make a finding under Rule 32 other than the finding he did make that the conviction was validly considered in determining whether Jones was a career offended under the Guidelines. Further, and also because Jones did not raise a reasonable factual dispute, no evidentiary hearing was necessary under Federal Rule of Criminal Procedure 32(c)(3)(A).
Other contentions raised by Jones are equally without merit. For these reasons, the judgment of the district court is AFFIRMED.
. Under section 4B1.1,
[a] defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
For a defendant to be a career offender, each prior felony conviction must have resulted in a period of imprisonment that exceeded one year and one month. In addition, each prior felony conviction must have either been imposed within fifteen years of the defendant’s commission of the instant offense or resulted in the defendant being incarcerated during any part of that fifteen-year period. Guidelines § 4A1.2(e); see United States v. Sanchez-Lopez, 879 F.2d 541, 560-61 (9th Cir.1989) (even though the Guidelines apply only to conduct occurring after November 1, 1987, convictions obtained before that date are properly considered in determining a defendant’s career offender status).
A crime of violence is a crime that “has an element the use, attempted use, or threatened use of physical force against the person of another” or "is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.1.
. Jones has made no argument against considering the 1978 robbery conviction in determining career offender status. Under section 4B1.1, a defendant is a career offender if, inter alia, "the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense." Because we conclude that the district court properly considered the 1979 assault conviction in determining that Jones was a career offender, and because that felony and the 1978 robbery conviction are an adequate basis of the finding that Jones is a career offender, we need not consider Jones’ challenge to the district court’s consideration of the 1974 robbery conviction.
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_const1
|
106
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
KELLY v. ADERHOLD, Warden.
No. 2031.
Circuit Court of Appeals, Tenth Circuit.
May 13, 1940.
Robert Kelly, pro se.
Summerfield S. Alexander, U. S. Atty, and Homer Davis, Asst. U. S. Atty, both of Topeka, Kan., for appellee.
Before PHILLIPS, BRATTON, and HUXMAN, Circuit Judges.
BRATTON, Circuit Judge.
Robert Kelly, hereinafter called petitioner, seeks reversal of an order denying a petition for a writ of habeas corpus to obtain his discharge from the federal penitentiary at Leavenworth, Kansas. Petitioner and two others were indicted in two counts in the United States Court for Western South Carolina. The first count charged the unlawful transportation in interstate commerce of a stolen automobile; and the second charged the receipt, concealment, storage, barter, sale or disposition of such automobile with knowledge that it had been stolen and transported in interstate commerce. Petitioner and one other defendant entered pleas of not guilty, were tried before a jury, and found guilty; petitioner was sentenced to serve a term of four years in the penitentiary; commitment issued on February 5, 1935; and petitioner began serving the sentence. On December 18, 1937, he was conditionally released on parole, and on February 15, 1938, a member of the United States Board of Paroles issued a warrant for his apprehension to coftiplete . service of the sentence on the ground that he had violated the conditions of his release. In November, 1938, petitioner was indicted in the United States Court for Western North Carolina, charged with the crime of falsely assuming and pretending to he an officer, agent or employee of the United States, in violation of section 32 of the Criminal Code, 18 U.S.C.A. § 76. He was found guilty, and on May 9, 1939, he was sentenced to serve a term of one year and one day in the penitentiary. Commitment issued, and he was delivered to respondent for service of the sentence. The warrant issued by the member of the Board of Paroles was placed in the hands of the warden as a detainer for the arrest of petitioner upon completion of service of the sentence imposed by the court in North Carolina.
The petition for the writ is directed solely to the judgment and sentence of the court in South Carolina. But at the time the petition was filed, and at the time the order was entered denying such petition, petitioner was not detained under commitment issued upon that judgment and sentence, lie was detained under commitment issued upon the judgment and sentence of the court in North Carolina, and the validity of that judgment and sentence is not assailed on any ground. The purpose of a proceeding in habeas corpus is to determine the question whether a person is being unlawfully detained. One confined in prison has no right to the writ unless he is entitled to immediate release. The writ will not issue unless he is presently restrained of his liberty without warrant of law. McNally v. Hill, Warden, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238; Reger v. Hudspeth, 10 Cir., 103 F.2d 825, certiorari denied 308 U.S. 549, 60 S.Ct. 79, 84 L.Ed. —; Wall v. Hudspeth, 10 Cir., 108 F. 2d 865. While being detained under the judgment and sentence of one court, petitioner could not challenge by habeas corpus the validity of the judgment and sentence of another court. For that reason alone he was not entitled to the writ.
But in view of the fact that since the petition was denied, petitioner has doubtless completed service of the judgment and sentence of the court in North Carolina, and no doubt is now being detained under the commitment issued upon the judgment and sentence of the court in South Carolina, it is. deemed expedient to determine the question presented in respect of the validity of that judgment and sentence. It is challenged solely on the ground that petitioner was denied the benefit of the, assistance of counsel in the trial of the case. The Sixth Amendment to the Constitution of the. United States guarantees one charged with a crime the right to have the aid of counsel in his defense. But the right is personal, and a defendant may waive it provided it is waived intelligently, understandingly, and in a competent manner. Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 82 L.Ed. 1461; McDonald v. Hudspeth, 10 Cir., 108 F.2d 943. And its waiver in that manner will ordinarily be implied where the accused appears in court without counsel and fails to request or indicate in any manner a desire that counsel be assigned to assist him. Buckner v. Hudspeth, 10 Cir., 105 F.2d 396, certiorari denied 308 U.S. 553, 60 S.Ct. 99, 84 L.Ed.-. Here the court expressly found that petitioner did freely, voluntarily, intelligently and competently waive his right to the assistance of counsel. The finding is supported by substantial evidence, and is not clearly erroneous. It therefore cannot be overturned on appeal. Rule of Civil Procedure 52 (a), 28 U.S.C.A. following section 723c.
The order denying the petition for the writ is affirmed.
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_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.
McLEAN v. COMMISSIONER OF INTERNAL REVENUE.
No. 9870.
Circuit Court of Appeals, Fifth Circuit.
June 20, 1941.
L. J. Benckenstein, of Beaumont, Tex., for petitioner.
Warren F. Wattles and Sewall Key, Sp. Assts. to the Atty. Gen., Samuel O. Clark, Jr., Asst. Atty. Gen., and J. P. Wenchel, Chief Counsel, Bureau of Internal Revenue, and John M. Morawski, Sp. Atty., Bureau of Internal Revenue, both of Washington, D. C., for respondent.
W. D. Gordon, of Beaumont, Tex., amicus curiae.
Before FOSTER, HUTCHESON, and HOLMES, Circuit Judges.
HUTCHESON, Circuit Judge.
The Board treated the transaction by which the taxpayer let Yount-Lee Oil Company into the operation and enjoyment of the Cade leases in. Galveston County, Texas, as ruled by Palmer v. Bender, 287 U.S. 551, 53 S.Ct. 225, 77 L.Ed. 489; and Burnet v. Harmel, 287 U.S. 103, 53 S.Ct. 74, 77 L.Ed. 199. It held that the returns taxpayer had derived therefrom, in cash and from oil payments in the tax years in question, were ordinary income from the property, and not, as claimed by the taxpayer, “gain from the sale or exchange of capital assets.” The taxpayer is here insisting that the transaction was a sale of -mineral interests within Sec. 101, Revenue Acts of 1928-29, and Sec. 117, Revenue Act of 1934, 26 U.S.C.A. Int.Rev.Code, § 117, and both the cash and the payments in oil were gains from the sale or exchange of capital assets; or that at least the cash payments were. In the alternative, he urges that the transaction with Yount-Lee was -within the meaning of Sec. 102, Revenue Acts of 1928-32, 26 U.S.C.A. Int.Rev.Acts, pages 372, 506, “a bona fide sale of * * * oil or gas wells, or any interest therein, where the principal value of the property has been demonstrated by pros-pecting or exploration and discovery work done by the taxpayer.”
The facts were stipulated. In 1919, taxpayer leased from the Cades, the lands in question. Before March 18, 1931, he had succeeded in developing oil in commercial quantities in a number of wells. On that date he transferred the leases to the YountLee Oil Company, by an instrument in writing, which after reciting his acquisition of, and prior dealings with, the leases, purported to assign them to Yount-Lee, upon a consideration of $500,000 cash, and $2,000,000 to be paid out of 1/8 of the gross oil produced and saved from the leases, and to reserve and except a 25% all inclusive royalty, 10% to his lessors and an override of 15% to him, from the assignment. The division orders on which the oil was run to and paid for by pipe lines, from April 1, 1931, until 1935, when Yount-Lee sold its interests to Stanolind Oil Company, were based on 75% to Yount-Lee, 15% to McLean, 10% to lessors, and Yount-Lee settled with McLean monthly, paying him 15% on the royalty account and 1/8 or 12%% on the oil payment account. After Stanolind’s purchase, the division orders were based on 62%% to Stanolind and 27%% to McLean, 12%% oil payment account and 15% royalty account. 'In his income tax returns for the years 1931-35, inclusive, the taxpayer, treating the transfer of the leases as a sale of capital assets, reported both the cash payments totaling $500,000 and all amounts collected on account of the '$2,000,000 in oil payments as capital gains and taxable under Sec. 101, Revenue Act, 1928, and Sec. 117, Revenue Act of 1934.
The respondent determined, that neither the cash nor the oil payments represented gains from the sale or exchange of capital assets, but constituted ordinary income, and allowed depletion on such payments. The Board sustained this determination. On taxpayers alternative contention before the Board, that the transaction was a sale of a mineral interest under Sec. 102, Revenue Acts of 1928-32, it was conceded that the principal value of the leases had been demonstrated by prospecting and exploration -work, done by the taxpayer before the transfer to Yount-Lee, but it was determined that the transaction was not a sale under Sec. 102, any more than it was a sale under Sec. 101, that it was provision for and it has resulted in the enjoyment of income from the property.
The taxpayer is here insisting that giving its ordinary meaning to the word, sale, the transaction in question was a sale of all taxpayer’s right, title and interest in the leases transferred and the estates created thereby, and in 75% of the oil produced therefrom; and that whatever might be their effect on taxpayer’s right to depletion, neither the reservation of an overriding royalty nor the provision for oil payments had the effect of converting what would otherwise have been a sale, into a transfer, in the nature of a sub-lease.
He points to words of grant in the granting clause, the recitations as to the consideration for the transfer, to the fact that 75% was conveyed, and to the fact that the royalty reservation was not of an ordinary override but was. really an exception from the conveyance of lessors’ royalty too. He insists that the provision for payments in oil did not, in any legal sense, reserve an economic interest, but was a mere personal covenant of the grantee, and that this is emphasized by the division orders under which the pipe line payments were made, until July 31, 1935.
So insisting, he urges upon us, that the transaction in question here is not like that in Palmer v. Bender, it is like those in Helvering v. Elbe Oil Land Development Co., 303 U.S. 372, 58 S.Ct. 621, 82 L.Ed. 904, and Anderson v. Helvering, 310 U.S. 404, 60 S.Ct. 952, 84 L.Ed. 1277.
Attacking our decision in Cullen v. Commissioner of Internal Revenue, 5 Cir., 118 F.2d 651, that the reservation of a royalty interest brought the transfer within Palmer v. Bender, as an incorrect interpretation of that case, taxpayer urges us to reconsider our decision in Cullen’s case, insofar as it conflicts with his view and to flatly hold that the reservation of the royalty interest must be treated, as separate and distinct from the balance of the transaction, and as having no effect upon it to prevent its being treated as a sale.
Further, but only in the alternative, taxpayer, invoking our decision in Fleming’s case, infra, as authority for the view that a transfer of leases with payment of cash, and the reservation of an oil payment is a sale, insofar at least as the cash payment is concerned, insists that if he is not entitled to treat payments on account of the $2,000,000 in oil payment, as proceeds of a sale, he is at least entitled to treat the cash payments as such.
The commissioner with the rejoinder that “this is a typical Palmer v. Bender case,” would make short shrift of all these arguments and contentions. Invoking Cullen’s case in further support, he insists that all else aside, the reservation of the royalty settles and completely disposes of any question which might have been in the case if the reservation had been only of an oil payment.
Without undertaking any detailed or nice analysis of the language in the instrument upon which taxpayer relies, we think it plain that the transaction as a whole comes strictly within the ruling in Palmer v. Bender and Burnet v. Harmel, Cf. Morrow v. Scofield, 5 Cir., 116 F.2d 17, and Pettit v. Commissioner, 5 Cir., 118 F.2d 816. Precisely as in Palmer v. Bender, the taxpayer here, in the instrument of transfer, reserved in himself an interest in the oil in place, and thereby and as a result thereof, secured for himself, “income derived from the extraction of the oil to which he must look for a return of his capital.”
Precisely as in Palmer’s case, the taxpayer here retained a right to a share in the oil as produced and an economic interest in the oil in place which is depleted by production. Precisely as in that case, the taxpayer obtained as part consideration, for letting the sub-lessee in, a part of the fruits of the land as they might be produced, both as to the royalty and as to the payments in oil. Nothing either in the opinion in the Elbe case or in the application of its principles to its facts, affords taxpayer any comfort. The opinion re-affirms Palmer v. Bender and the result there was reached because there was no reservation of royalty, there was no retention of ownership of or interest in, the minerals in place. There was only a personal covenant to pay the taxpayer, not out of minerals in place but out of the net proceeds of a processing or manufacturing operation. Nor can the taxpayer take comfort from anything said or decided in Anderson v. Helvering, 310 U.S. 404, 60 S.Ct. 952, 84 L.Ed. 1277. In its every line it affirms and re-affirms the views which produced and which underlie the decisions in the Palmer and Harmel cases. Its application of those principles to its facts was not a repudiation, it was a vindication of them. We are not at liberty to repudiate or, at this late date, to even question those principles. We cannot afford taxpayer the relief he asks without doing both. Besides if we were disposed to do so, taxpayer’s argument furnishes us no sound ground on which to stand in doing it. Urging Fleming’s case, Commissioner v. Fleming, 5 Cir., 82 F.2d 324, as a guide for us to follow, he attacks Cullen’s case because it follows Fleming’s in holding that the reservation of a royalty in addition to the cash and oil payments, makes it a sub-lease and brings the case directly within Palmer v. Bender.
We think it clear that Cullen’s case, upon the point of appellant’s attack, is correctly decided and we have no disposition to question or depart from it. We think top, that it completely disposes against him, of appellant’s whole Sec. 101 case, and renders it unnecessary for us to consider what we ought to do with it here, if this were a case like Fleming’s was, and like Cullen’s was in part, of cash and oil payments, without the reservation of an additional royalty.
Upon taxpayer’s second point that if the case is not one for the application of Sec. 101, he should have relief under Sec. 102. We need say only that we think it plain that the considerations which determine his Sec. 101 contention against him are equally controlling in determining that under Sec. 102 against him too. Both sections apply where there is a sale, neither applies where there is not. Sec. 101 applies to sales in general, Sec. 102 to sales of the kind and under the circumstances it particularly deals with. There was no sale here. The judgment of the Board was right. It is affirmed.
41 B.T.A. 565, 569.
The significant clauses of this instrument for our purpose are:
“I, Harrs McLean, for the consideration hereinafter set forth, (and subject to the royalty reservation hereinafter contained), have Granted, Sold, Conveyed, Transferred and Assigned, and do by these presents, Grant, Sell, Convey, 'Transfer and Assign unto Yount-Lee Oil Company * ® ® the following described oil, gas and mineral leases and the ■oil, gas and mineral leasehold estates created thereby * * *
“The consideration for this transfer and assignment of said above-described oil, gas and mineral lease and physical properties and equipment is as follows: ■(a) The sum of One Hundred Thousand ($100,000) Dollars cash, receipt of which is hereby acknowledged by Grantor; (b) Two Hundred Thousand ($200,000) Dollars due and payable six (6) months aft■er ,the date hereof, and Two Hundred Thousand ($200,000) Dollars due and payable twelve (12) months after the date hereof; said deferred payment to bear no interest; (c) Two Million ($2,000,000) Dollars to be paid out of one-eighth (%) of the (gross) oil produced and saved from the lands covered by this assignment, if, .as and when produced and saved, and only in such event; it being expressly understood in this connection, that said Yount-Lee Oil Company shall be under no obligation whatever to Grantor herein ■to drill upon or develop said land, or any ■part thereof, for oil.
“There is reserved and excepted from this assignment a royalty of twenty-five (25%) per cent of the oil produced and saved from the lands covered by this assignment, out of which twenty-five (25%) per cent royalty all outstanding royalties (including royalties due lessors under the terms of said leases) and all overriding royalties are to be paid and Grantor is to receive the balance of said twenty-five (25%) per cent royalty; it being understood in this connection that said YountLee Oil Company shall in any event be entitled to receive seventy-five (75%) per cent of the oil produced and saved from said land, and that all outstanding royalties, overriding royalties and/or- interests of any character in the oil in, under or produced from said .land shall be charged against the twenty-five (25%) per cent royalty herein reserved * * * If oil is produced from the land covered by this assignment and said Yount-Loo Oil Company runs such oil to its pipe line or to its storage !f * * then said Yount-Lee Oil Company is to account to Grantor, on the payment to be made to him out of oil and for his interest in the royalty oil, on the basis of the posted field price at the well * * * In the event said Yount-Lee Oil Company sells the oil produced from said land to others, said Yount-Lee Oil Company shall account to Grantor on the payment to he made to him out of oil and for his interest in the royalty oil, on the basis of the sale price at the well received by said Yount-Lee Oil Company.”
“In Palmer v. Bender, however, the transferor reserved an additional royalty, and so was in reality a sublessor, and the cash paid him could more readily be treated as a bonus or advance royalty.” Commissioner of Internal Revenue v. Fleming, 5 Cir., 82 F.2d at page 327.
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_usc1
|
18
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
UNITED STATES of America, Plaintiff-Appellee, v. Thomas R. SCHIFFBAUER, Defendant-Appellant.
No. 90-10624.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Sept. 10, 1991.
Decided Feb. 4, 1992.
Bram L. Jacobson, Asst. Federal Public Defender, Phoenix, Ariz., for defendant-appellant.
Janet L. Patterson, Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellee.
Before CANBY, and KOZINSKI, Circuit Judges, and NIELSEN, District Judge.
The Honorable Wm. Fremming Nielsen, United States District Judge for the Eastern District of Washington, sitting by designation.
CANBY, Circuit Judge:
Thomas Richard Schiffbauer appeals his bank robbery sentence. He contends that the district court illegally sentenced him to a term exceeding the maximum penalty authorized by 18 U.S.C. § 3581(b). We affirm.
BACKGROUND
A federal grand jury indicted Schiffbauer for the armed robbery of Security Savings and Loan in Mesa, Arizona. Pursuant to a plea agreement, Schiffbauer pled guilty to the lesser included offense of unarmed robbery in violation of 18 U.S.C. § 2113(a). At his sentencing hearing, Schiffbauer contended that 18 U.S.C. § 3581(b) classifies this offense as a Class C offense and thereby limits the maximum statutory term to twelve years. The district court rejected this argument and chose to rely on 18 U.S.C. § 3559(b). That statute provides that the maximum term is the term authorized by the statute describing the substantive offense. Because the bank robbery statute authorizes a twenty-year maximum term, the district court imposed a fourteen-year sentence, together with other terms not relevant to this appeal.
DISCUSSION
Schiffbauer challenges the district court’s sentence and its interpretation of federal statutes. We review these matters de novo. See United States v. Schiek, 806 F.2d 943, 944 (9th Cir.1986), cert. denied, 481 U.S. 1032, 107 S.Ct. 1962, 95 L.Ed.2d 534 (1987); United States v. Martinez-Jimenez, 864 F.2d 664, 665-66 (9th Cir.), cert. denied, 489 U.S. 1099, 109 S.Ct. 1576, 103 L.Ed.2d 942 (1989).
Schiffbauer contends that the district court sentenced him to a term exceeding the maximum allowable penalty. In determining the maximum term, 18 U.S.C. § 3559 directs us to the statute describing the substantive offense. According to this section, Schiffbauer's fourteen-year sentence clearly fell within the twenty-year range authorized by the bank robbery statute. See 18 U.S.C. § 2113(a).
Schiffbauer argues, however, that 18 U.S.C. § 3581 limited the district court to a twelve-year maximum term. As he notes, section 3559 classifies bank robbery as a Class C felony. 18 U.S.C. § 3559(a)(3). Section 3581 establishes that the sentence for this offense is not more than twelve years. 18 U.S.C. § 3581(b). Moreover, another section directs courts to sentence individuals in accord with section 3581. 18 U.S.C. § 3551(b)(3). Schiffbauer therefore concludes that the district court erred in imposing a fourteen-year term.
We have recently rejected a similar argument. In United States v. LaFleur, 952 F.2d 1537 (9th Cir.1991), we held that the letter-classification sentencing scheme of sections 3559(a) and 3581(b) did not apply to the offense of first degree murder set forth in 18 U.S.C. § 1111, because the latter statute specified its own penalty of a mandatory life sentence. We said that “[tjhere is no indication that § 3581 was intended to modify clearly established statutory sentences.” Id. at 1546. The Second and Third Circuits have reached similar conclusions. See United States v. Gonza lez, 922 F.2d 1044, 1050 (2d Cir.1991); United States v. Donley, 878 F.2d 735, 740 (3d Cir.1989), cert. denied, 494 U.S. 1058, 110 S.Ct. 1528, 108 L.Ed.2d 767 (1990).
Here, too, we conclude that Congress did not intend the penalties set in section 3581(b) to apply to offenses that received letter grades for the first time in section 3559(b). Section 3581(b)’s penalties apply only to offenses that are assigned letter classifications in the statutes describing them. Because Congress has continued to specify maximum penalties without reference to letter-grade classifications, however, section 3581(b) has not yet had any crimes upon which to operate. See Crime Control Act of 1990, Pub.L. 101-647, §§ 322 & 1701, 104 Stat. 4789, 4818 & 4843 (1990).
Section 3559(b), on the other hand, applies to statutes, like the pre-existing statute defining bank robbery, that provide a specific maximum sentence in the statute describing the crime. Thus, the plain language of section 3559(b) states that all of the incidents of the letter grading system shall apply “except that the maximum term of imprisonment is the term authorized by the law describing the offense” (emphasis added).
Congress, at least up to now, has not implemented the letter-grade system contemplated by section 3581(b). It follows that section 3581 is inapplicable to the existing bank robbery offense. This construction follows from the statutes and Congress’s continuing practice of specifying maximum sentences in crime legislation. It is also in accord with the decisions of two other circuits and the views of the Sentencing Commission.
AFFIRMED
. Title 18, United States Code, section 3559, provides in part:
(a) An offense that is not specifically classified by a letter grade in the section defining it, is classified if the maximum term of imprisonment authorized is—
(3) less than twenty-five years but ten or more years, as a Class C felony.
(b) An offense classified under subsection (a) carries all the incidents assigned to the applicable letter designation, except that the maximum term of imprisonment is the term authorized by the law describing the offense. (Emphasis added.)
. Title 18, United States Code, section 3581 provides in part:
(a) A defendant who has been found guilty of an offense may be sentenced to a term of imprisonment.
(b) The authorized terms of imprisonment are....
(3) for a Class C felony not more than twelve years.
. According to the United States Sentencing Commission, Congress has abandoned its plan to assign existing federal crimes letter-grade sentencing classifications. Questions Most Frequently Asked About the Sentencing Guidelines, Volume IV, p. 8 (Dec. 1, 1990). The Commission’s position, of course, cannot serve as evidence of the intent of Congress. We find the Commission’s interpretation to have persuasive value, however, because of its experience and familiarity with the federal criminal laws.
. Because section 3581 has no letter-grade crimes upon which to operate, the direction of section 3551(b)(3) to sentence in accord with section 3581 is equally ineffectual.
.Because there is no ambiguity, Schiffbauer’s attempt to invoke the rule of lenity must fail. See Moskal v. United States, — U.S. -, 111 S.Ct. 461, 465, 112 L.Ed.2d 449 (1990).
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_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.
A/S KREDIIT PANK, Plaintiff-Appellant, v. The CHASE MANHATTAN BANK, Defendant-Appellee.
No. 353, Docket 27308.
United States Court of Appeals Second Circuit.
Argued May 2, 1962.
Decided May 18, 1962.
Delson, Levin & Gordon, New York City (J. Pinckney Torpats, Arlington, Va., of counsel), for plaintiff-appellant.
A. Donald MacKinnon and Milbank, Tweed, Hope & Hadley, New York City (Rebecca M. Cutler, Edward J. Reilly, Jr., New York City, of counsel), for defendant-appellee.
Before LUMBARD, Chief Judge, WATERMAN and FRIENDLY, Circuit Judges.
PER CURIAM.
Appellant, an Estonian bank, brought an action in the District Court for the Southern District of New York, in April, 1956, for a judgment declaring that two persons were the only ones authorized to dispose of funds in its account with defendant, The Chase Manhattan Bank. Chase promptly answered and counterclaimed for interpleader. This was granted in a well-reasoned opinion by Judge Bryan, D.C., 155 F.Supp. 30 (1957). Many further motions ensued; the docket entries alone fill six and a half printed pages. Among other things, appellant sought to relitigate Chase’s right to interplead and opposed, unsuccessfully, the intervention of the Acting Consul General of Estonia. Ultimately a settlement was reached, the action was dismissed with prejudice, and Chase was allowed attorneys’ fees of $8500 and costs and expenses of $2076.41. From the latter portion of the order of dismissal this appeal has been taken.
It ought not to have been. Appellant does not dispute that a defendant properly invoking interpleader is entitled to costs and attorneys’ fees, Mutual Life Ins. Co. of New York v. Bondurant, 27 F.2d 464, 466 (6 Cir.), cert. denied, 278 U.S. 630, 4 S.Ct. 30, 73 L.Ed. 548 (1828); 3 Moore, Federal Practice (2d ed. 1948), ¶ 22.16, and cases cited in fn. 5. Its claims that an allowance should have been denied here because there was no need for interpleader in the light of N.Y. Banking Law, § 134, subd. 7 and other circumstances, or because Chase did not itself institute an action for interpleader at an earlier date, and that any allowance must be limited to the period before the order allowing interpleader was entered, are not even colorable. The same is true of its criticism of the amount allowed, which represents, in no small measure, services of Chase’s attorneys occasioned by appellant’s unjustified resistance to the interpleader and the hearing of other parties.
The case would be an appropriate one for invoking our Rule 26(b), 28 U.S.C. whereby damages at a rate not exceeding. 10%, in addition to interest, may be awarded “where an appeal shall delay the proceedings on the judgment, decree, or order of the lower court, and shall appear to have been sued out merely for delay, * * * ” see 28 U.S.C. § 1912, and Ginsburg v. Stern, 295 F.2d 698 (3 Cir. 1961). However, since this is an action in which attorneys’ fees may be awarded in any event, it will be sufficient to grant defendant an additional $1,000 for its attorneys’ fees on appeal, together with the cost of printing its brief and appendix and any other costs normally taxable, and to dismiss the appeal as frivolous. It is' so ordered.
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
|
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.
CROWELL & THURLOW S. S. CO. et al. v. TEXAS CO. THE STEPHEN R. JONES.
Circuit Court of Appeals, Fifth Circuit.
July 6, 1928.
No. 5176.
1. Collision <®=>9 — Local pilot custom on lower Mississippi river of long standing, having received judicial sanction, constitutes exception to pilot rules.
Local pilot custom on lower Mississippi river relative to ascending vessel coming up under points, while descending vessel runs the bends, having received judicial sanction and being of long standing, must be considered an exception to pilot rules.
2. Collision <S=»9I — Power barge, failing to slacken speed or blow danger signal when not hearing proper passing signal from approaching steamer, held at fault in resulting collision.
Power barge, descending Mississippi river, failing to slacken speed or stop and back, when pilot observed head lights and side lights of approaching steamer, and not blowing danger signal when she heard no passing signal at proper time, as required by pilot rules, held at fault in resulting collision.
Appeal from the District Court of the United States for the Eastern District of Louisiana; Louis H. Burns, Judge.
Libel by the Texas Company against the Crowell & Thurlow Steamship Company, claimant and owner of the steamship Stephen R. Jones, and others, wherein respondents filed a cross-libel. Decree for libelant, and respondents appeal.
Reversed and remanded, with direction.
Geo. H. Terriberry, Jos. M. Rault, and H. F. Stiles, Jr., all of New Orleans, La. (Terriberry, Young, Rault & Carroll, of New Orleans, La., on the brief), for appellants.
John D. Grace, M. A. Grace, and Edwin H. Grace, all of New Orleans, La. (John D., M. A., and Edwin H. Grace, all of New Orleans, La., on the brief), for appellee.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
FOSTER, Circuit Judge.
On November 24,1922, at about 8:45 p. m. the power barge Texaco 147, owned by appellee, collided with the steamship Stephen R. Jones, owned by appellant, in the Mississippi river, some 30 miles below New Orleans. Both vessels were damaged, and a libel and a eross-libel were filed.
The testimony exhibits the conflict usual in collision cases, but it is unnecessary to review it in its entirety. The Jones was ascending the river, coming up under Poverty Point, which is on the east bank, and the Texaco was descending, running close to the west bank. Under the pilot rules the Texaco had the right of way, and it was the duty of the Jones to initiate the passing signals, which the Texaco could agree to, or change, after stopping and blowing the danger signal of four or more short blasts. The collision occurred close to the west bank, in a comparatively straight reach of the river, just around and above Turtle Point, which is a projection on the west bank.
The District Court found that the Jones, after rounding Poverty Point, went obliquely across the bend, crossing the bow of the Texaco; that the Jones blew two blasts and starboarded her helm, when within a distance of a half a mile or less and the danger of collision was imminent; that she was going full speed ahead, within a ship’s width of the bank, and blew two more blasts and put her helm hard astarboard, going into the bank, when a ship’s length away from the Texaco; and that not until just before the collision did she put her engines full speed astern. On these facts the District Court reached the conclusion 'that the Jones was solely at fault and had violated rule 5 in crossing the river with a descending steamer so near that a collision was possible, and also had violated rules 1, 2, 9, 10, and 23. in failing to give the passing signal and have an answer that was understood before arriving at a distance of half a mile from the descending steamer, and in altering her course and proceeding before the privileged descending vessel answered; in failing to blow the danger signal and stopping and reversing; and in failing to observe the starboard hand rule of the road to keep to the right.
We agree with the District Court in holding the Jones responsible for the collision, but we hare reached the further conclusion that the Texaco was guilty of faults that also contributed to it.
The local pilot custom on the lower Mississippi river is for the ascending vessel to come up under the points, in order to get the benefit of slack water, while the descending vessel runs the bends, keeping in or near the middle of the river, in the thread of the stream, to get the benefit of the current. This custom is of long standing, has received judicial sanction, and must be considered an exception to the pilot rules. The Albert Dumois, 177 U. S. 240, 20 S. Ct. 595, 44 L. Ed. 751; The Esparta (C. C. A.) 160 F. 289.
Following the custom, except for the close proximity of the Texaco the Jones could have properly crossed the river where she did, in order to come up under Turtle Point, which sufficiently projected to deflect the current to some extent. There was no necessity for the Texaco to be close in to the west bank. Had she been out in the center of the stream, where the Jones could have expected to find her, it is probable that the collision would not have occurred; but we put this aside as unimportant.
The testimony of Cox, a licensed river pilot, who was in charge of the navigation of the Texaco at the time of the collision, is somewhat confused; but we conclude from it that the Texaco was close to the west bank going down the river when he saw the head and range lights of the Jones, and her red and green side lights at the same time. This should have told him she was dead ahead, or nearly so. He did not hear any passing signal from the Jones until the collision was imminent. He did not at any time slacken his speed, or stop and back, and did not blow the danger signal.
The Jones was on the west bank, where she thought she had the right to be, and the Texaco had the whole width of the river to pass to the left, when the Jones blew a signal of two blasts, indicating that course. The Jones had no means of knowing that her signal had not been heard, unless the Texaco so indicated by blowing the danger signal. Had that been done, the Jones might have stopped and reversed her engines in time.
The Texaco was at fault in not slackening her speed, or stopping and backing, when her pilot observed the head light and both side lights of the Jones, and in not blo.wing the danger signal, when she heard no passing signal from the Jones at the proper time, as required by rule 2. It is evident that both vessels were at fault in not observing the rules.
Reversed and remanded, with instructions to divide the damages equally.
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_r_subst
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Guy MASON, Petitioner-Appellant, v. Charles R. BALKCOM, Warden, Respondent-Appellee.
No. 80-7344.
United States Court of Appeals, Fifth Circuit. Unit B
March 1, 1982.
James C. Bonner, Jr., University of Georgia School of Law, Prison Legal Counseling Project, Athens, Ga., for petitioner-appellant. ■
William B. Hill, Jr., Asst. Atty. Gen., Atlanta, Ga., for respondent-appellee.
Before TUTTLE, HILL and THOMAS A. CLARK, Circuit Judges.
Former Fifth Circuit case, Section 9(1) of Public Law 96-452—October 14, 1980.
THOMAS A. CLARK, Circuit Judge:
Petitioner, Guy Mason, appeals from the district court’s order and judgment denying his petition for a writ of habeas corpus. We reverse.
In January 1975, petitioner was convicted of murder and sentenced to death after a jury trial in the Superior Court of Baldwin County, Georgia. On direct appeal and the mandatory sentence review, petitioner’s conviction and sentence were affirmed by the Georgia Supreme Court, Mason v. State, 236 Ga. 46, 222 S.E.2d 339 (1976), and certio-rari was denied by the United States Supreme Court, Mason v. Georgia, 428 U.S. 910, 96 S.Ct. 3225, 49 L.Ed.2d 1219 (1976).
Petitioner subsequently petitioned for a writ of habeas corpus in the Superior Court of Tattnall County, Georgia. The state ha-beas action was continued to permit petitioner to file an extraordinary motion for a new trial in the Baldwin County Superior Court. Following an evidentiary hearing, the motion was denied on March 18, 1977. On appeal, the Georgia Supreme Court affirmed the denial of the extraordinary motion. Mason v. State, 239 Ga. 538, 238 S.E.2d 79 (1977). On January 26, 1978, an evidentiary hearing commenced on petitioner’s state habeas action in the Tattnall County Superior Court. That court denied habeas relief in an order and written opinion entered on July 13, 1978. Mason v. Hopper, No. 76-218 (Super.Ct. Tattnall Cty., July 13, 1978). From the adverse decision of the state habeas court, petitioner filed an application for a certificate of probable cause to appeal to the Georgia Supreme Court. The certificate was denied on October 3, 1978.
Petitioner next filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia pursuant to 28 U.S.C. § 2254. The district court ordered petitioner’s execution stayed pending final resolution of the habe-as action. On April 7, 1980, the district court denied the petition for the writ but left intact the stay of execution. Mason v. Balkcom, 487 F.Supp. 554 (M.D.Ga.1980). Petitioner now appeals to this court from the district court’s denial of his petition.
Five issues are raised on this appeal. Petitioner contends (1) that the trial court’s instructions to the jury created a presumption of intent to kill, thereby unconstitutionally relieving the state of its burden of proving an essential element of the crime of murder and depriving petitioner of due process of law, and that the erroneous charge cannot be dismissed as harmless error; (2) that the trial court’s instructions on voluntary manslaughter impermissibly created a presumption of “deliberate revenge” without regard to petitioner’s actual thought processes, thus depriving him of due process by relieving the state of its burden of proof; (3) that a venireman was improperly excluded from service on the jury on less than an “unmistakably clear” indication that his opposition to capital punishment would automatically impair his ability to consider a death sentence; (4) that his conviction and sentence cannot stand because one of the jurors, prior to the conclusion of the guilt phase of the trial, became aware through newspaper accounts that petitioner had been convicted of murder previously; and (5) that his death sentence cannot stand because the record lacks a transcript of the prosecutor’s closing argument, portions of which provoked objection, making it impossible for a reviewing court to determine whether the argument was unfairly prejudicial to the petitioner.
For the reasons expressed below, we reverse. In so doing, however, we reach only the first issue because its disposition makes resolution of issues (2), (3), (4), and (5) unnecessary.
Petitioner was convicted of murder under Ga.Code Ann. § 26-1101(a), which provides:
A person commits murder when he unlawfully and with malice aforethought, either express or implied, causes the death of another human being. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature, which is manifested by external circumstances capable of proof. Malice shall be implied where no considerable provocation appears, and where all the circumstances of the killing show an abandoned and malignant heart.
The statute defines murder to consist of the following elements: (1) unlawfully (2) causing the death of another human being (3) with malice aforethought. Holloway v. McElroy, 474 F.Supp. 1363, 1368 (M.D.Ga. 1979). Malice is defined as a “deliberate intention” unlawfully to kill another human being. Thus, because malice is an element of murder and deliberate intention to kill is an essential part of malice, intent to kill is an essential element of the crime of murder under Ga.Code Ann. § 26-1101(a). Under the due process clause of the fourteenth amendment, the state must prove the existence of every element of a criminal offense beyond a reasonable doubt. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The prosecution therefore had the burden to prove beyond a reasonable doubt that petitioner had the requisite intent to kill.
Petitioner contends that certain instructions given to the jury by the trial court had the effect of relieving the prosecution of this burden by creating a presumption of his intent to kill. The instructions at issue here are as follows:
I charge you that the law presumes that a person intends to accomplish the natural and probable consequences of his conduct, and where a person uses a deadly weapon in the manner in which such weapons are ordinarily employed to produce death, thereby causing the death of a human being the law presumes an intention to kill.
I further charge you that if you believe beyond a reasonable doubt that the defendant . . ., with the weapon named in the indictment, and with malice aforethought, either expressed or implied, did unlawfully kill the victim . . ., and you believe the weapon used in the manner used, if one was used, was one likely to produce death, then you would be authorized and it would be your duty to convict the defendant of the offense of murder.
The district court, relying primarily on Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979), found that these instructions “impermissibly shifted the burden of proof on the issue of intent to kill to the defendant or at least removed from the prosecution the full burden resting upon it under In re Winship.” 487 F.Supp. at 559. The district court went on to hold, however, that the erroneous charge was harmless beyond a reasonable doubt.
Petitioner, of course, agrees with the district court’s finding that the charge erroneously shifted the burden of proof to him on the issue of intent to kill, but argues that the district court incorrectly held the erroneous charge to be harmless error. Respondent, on the other hand, first contends that the instructions in question did not shift the burden of proof to the petitioner on the issue of intent. Alternatively, respondent takes the position that if the charge did shift the burden to petitioner, then the district court correctly concluded that the error was harmless beyond a reasonable doubt. Thus, our analysis of this issue is twofold: (1) Did the instructions in question shift the burden of proof to the petitioner on the issue of intent to kill in violation of the due process clause of the fourteenth amendment? (2) If so, can the erroneous charge be characterized as harmless error beyond a reasonable doubt?
This case is very similar to Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). In Sandstrom, the defendant was convicted under Montana law of “deliberate homicide,” which the statute defined as “purposely or knowingly” causing the death of another human being. The state conceded that “purpose” was equivalent to “intent,” and thus that proof of defendant’s intent to kill would suffice to establish the “purpose” element. Id. at 521 & n.11, 99 S.Ct. at 2458 & n.11. The trial court instructed the jury that “the law presumes that a person intends the ordinary consequences of his voluntary acts.” The Supreme Court held that this instruction was unconstitutional because it “had the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of petitioner’s state of mind.” Id. at 521, 99 S.Ct. at 2458.
In Sandstrom, the state argued that the Montana Supreme Court had exclusive authority to determine the effect of the presumption. The state supreme court had held that the instruction placed only a burden of producing some evidence on the defendant, and that the presumption thus affected only the burden of going forward with the evidence rather than the burden of persuasion. The Supreme Court conceded that the state supreme court was the final authority on the effect of a presumption under state law, but declared that the state court was “not the final authority on the interpretation which a jury could have given the instruction.” 442 U.S. at 516-17, 99 S.Ct. at 2455. The Court then found that, although the instruction could be interpreted in the manner suggested by the state, it could also be interpreted in two more stringent ways, neither of which passed constitutional muster:
First, a reasonable jury could well have interpreted the presumption as “conclusive,” that is, not technically a presumption at all, but rather as an irrebuttable direction by the court to find intent once convinced of the facts triggering the presumption. Alternatively, the jury may have interpreted the instruction as a direction to find intent upon proof of the defendant’s voluntary actions (and their “ordinary” consequences), unless the defendant proved the contrary by some quantum of proof which may well have been considerably greater than “some” evidence — thus effectively shifting the burden of persuasion on the element of intent.
442 U.S. at 517, 99 S.Ct. at 2456. The Court held that either of these two interpretations would have “the effect of relieving the State of the burden of proof enunciated in Winship on the critical question of petitioner’s state of mind . . . and that the instruction therefore represents constitutional error,” 442 U.S. at 521, 99 S.Ct. at 2458, notwithstanding the fact that the trial court had given other instructions that correctly stated the state’s burden of proof.
We agree with the district court’s conclusion that the instructions at issue in this case fall clearly within the proscription announced in Sandstrom. Petitioner was convicted of murder, an essential element of which is intent to kill. The trial court instructed the jury that “the law presumes that a person intends to accomplish the natural and probable consequences of his conduct” and that “where a person uses a deadly weapon . . . thereby causing the death of a human being the law presumes an intention to kill.” In asserting self-defense, petitioner was required to admit the facts that activated these presumptions. We believe that a reasonable jury could have interpreted the instructions in either of the impermissible ways described in Sandstrom. Therefore, we hold that the challenged instructions relieved the State of Georgia of its constitutional burden of proving every element of the crime of murder beyond a reasonable doubt. Accordingly, petitioner’s conviction and sentence must be set aside unless the erroneous charge was harmless beyond a reasonable doubt.
“[BJefore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). In determining whether such an error is harmless, the question is whether the error might have contributed to the conviction. Id. at 23, 87 S.Ct. at 827. It is conceivable that an error such as that involved here could be harmless beyond a reasonable doubt under certain circumstances. Indeed, the Supreme Court in Sandstrom expressly stated that the Montana Supreme. Court was free on remand to consider the harmless error issue. 442 U.S. at 526-27, 99 S.Ct. at 2461. Although a burden-shifting charge might be harmless given appropriate circumstances, however, this is not such a case.
Constitutional error might be held harmless beyond a reasonable doubt, for example, where the evidence of guilt is so overwhelming that the error could not have been a contributing factor in the jury’s decision to convict. See, e.g., Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). The case under review, however, cannot be so characterized. Although it is clear that petitioner shot and killed the victim, he claimed that he acted in self-defense after he saw the victim reach into her bosom and bring out a pistol. The evidence was undisputed that at the time of the killing the victim had a handgun on her person. One eyewitness testified that he saw the victim reach under her sweater and pull out a pistol before petitioner began shooting. Another eyewitness, however, testified that the victim’s hands were down by her side when the shooting occurred. This evidence, far from being overwhelming in favor of guilt, was in fact very much in dispute, and we cannot say that the unconstitutional presumption was not a contributing factor in the jury’s decision to resolve the dispute against petitioner.
An unconstitutional, burden-shifting instruction might also be held harmless where it shifts the burden on an element that is not at issue in the trial. See, e.g., United States v. Reeves, 594 F.2d 536 (6th Cir.), cert. denied, 442 U.S. 946, 99 S.Ct. 2893, 61 L.Ed.2d 317 (1979). The district court, taking this approach, found that the challenged instructions were harmless beyond a reasonable doubt because, in its view, intent to kill per se was not at issue in petitioner’s trial. The district court stated that:
The petitioner’s only defense to the charges was self-defense. He thereby controverted only that the killing was unlawful and done with premeditation and deliberateness. The issue was not “intent to kill” per se but it was the lawfulness of the killing and of petitioner’s intentions with respect thereto. Since the charge of the trial judge clearly imposed on the prosecution the burden of proving unlawfulness, premeditation and deliberateness beyond a reasonable doubt and these were the only disputed issues in the case, this court finds that the erroneous charge was harmless beyond a reasonable doubt....
487 F.Supp. at 559. Apparently, the district court believed that by raising self-defense the defendant admitted having the intent to kill. This analysis is too broad. When claiming self-defense, one does not necessarily admit intent to kill, but rather admits that the killing occurred. As the petitioner points out in his brief, one can shoot to kill in self-defense, shoot to wound in self-defense, shoot to frighten in self-defense, or even shoot reactively in self-defense with no specific purpose. The mere raising of self-defense clearly does not establish that the defendant had the intent to kill. That intent to kill was an issue in petitioner’s trial is made evident by the district court’s statement that petitioner “controverted only that the killing was .. . done with premeditation and deliberateness.” We see no meaningful distinction between “premeditation and deliberateness” and specific intent. A critical issue in petitioner’s trial was whether he had the specific intent to kill, and the state had the burden of proving this intent beyond a reasonable doubt. We hold that the instructions which relieved the state of this burden might well have contributed to petitioner’s conviction and thus cannot be dismissed as harmless error. Therefore, the district court must be reversed.
In view of our disposition of the preceding issue, we need not reach the other issues raised here by petitioner. For the reasons expressed in this opinion, the judgment of the district court is REVERSED and this case is REMANDED to the district court for further proceedings not inconsistent with this opinion.
. The facts underlying Mason’s conviction are set forth in the opinion issued by the Georgia Supreme Court on Mason’s direct appeal. Mason v. State, 236 Ga. 46, 46-47, 222 S.E.2d 339, 340-41 cert. denied, 428 U.S. 910, 96 S.Ct. 3225, 49 L.Ed.2d 1219 (1976).
. Under Georgia’s capital sentencing procedure, all death sentences must be reviewed by the Georgia Supreme Court. Ga.Code Ann. § 27-2537.
. When petitioner’s conviction was reviewed on direct appeal in 1976, the Georgia Supreme Court held that the instructions in question were not erroneous. Mason v. State, 236 Ga. 46, 47-48, 222 S.E.2d 339, 341 (1976). That ruling was made, however, without the benefit of the United States Supreme Court’s reasoning in Sandstrom, which was not decided until 1979.
. 1947 Mont.Rev.Codes §§ 94-5-101, -102 (Crim.Code 1973).
. The potential for these interpretations of the presumption was not removed by the other instructions given at the trial. It is true that the jury was instructed generally that the accused was presumed innocent until proven guilty, and that the State had the burden of proving beyond a reasonable doubt, that the defendant caused the death of the deceased purposely or knowingly. . . .
But this is not rhetorically inconsistent with a conclusive or burden-shifting presumption. The jury could have interpreted the two sets of instructions as indicating that the presumption was a means by which proof beyond a reasonable doubt as to intent could be satisfied. For example, if the presumption were viewed as conclusive, the jury could have believed that although intent must be proven beyond a reasonable doubt, proof of the voluntary slaying and its ordinary consequences constituted proof of intent beyond a reasonable doubt. Cf. Mullaney v. Wilbur, 421 U.S. 684, 703 n. 31, 95 S.Ct. 1881, 1892, 44 L.Ed.2d 508 (1975) (“These procedural devices require (in the case of a presumption) . . . the trier of fact to conclude that the prosecution has met its burden of proof with respect to the presumed . . . fact by having satisfactorily established other facts.”).
442 U.S. at 518-19 n.7, 99 S.Ct. at 2456 n.7.
Question: What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.
Answer:
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songer_two_issues
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B
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there 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.
Polychronis GRAMMENOS and Theodore Orfanides, Appellants, v. C. M. LEMOS and Nile Shipping Co., S. A., a Panamanian foreign corporation or association, as owners and/or operators of the LIBERIAN S/T CHARIOT, Appellees.
No. 27, Docket 71-1057.
United States Court of Appeals, Second Circuit.
Argued Nov. 1, 1971.
Decided Feb. 23, 1972.
As Modified on Denial of Rehearing March 30, 1972.
John P. Cassapoglou, New York City, (Burt M. Morewitz, Newport News, Va., of counsel), for appellants.
Thomas A. Dillon, Jr., New York City (Burke & Parsons, Raymond J. Burke, New York City, of counsel), for appel-lees.
Before WATERMAN, SMITH and TIMBERS, Circuit Judges.
J. JOSEPH SMITH, Circuit Judge:
This case arises out of the claims of two foreign seamen for damages under the Jones Act, 46 U.S.C. § 688, and the general maritime law of the United States for injuries sustained when a flash fire broke out on their ship, the S/T Chariot, in Marseilles, France. They name as defendants the Nile Shipping Co., the Panamanian corporation which owns the Chariot, a Liberian flag ship, and C. M. Lemos, a Greek citizen allegedly an American resident and the beneficial owner of Nile. Appellants claim that under the expansive interpretation of Jones Act jurisdiction enunciated in Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970), the cause of action is cognizable in American courts because the ship is ultimately owned, operated or controlled by American residents. The district court for the Southern District of New York, Sylvester J. Ryan, Judge, dismissed the complaint on the grounds of lack of personal jurisdiction and forum non conveniens. We find that the quashing of service was proper, but that the complaint ought not have been dismissed, as the plaintiffs may attempt to obtain service through methods other than the one already tried. We find forum non conveniens an inappropriate ground for dismissal.
Nile Shipping Company was organized in New York City by two Americans, and the original officers were American citizens and residents of New York. The company, a Panamanian corporation, is now owned by Greek citizens. The Chariot is one of many Nile ships; the current certificate of registry, issued in 1969, is from the Republic of Liberia. The Chariot and other Nile ships are managed by Nereus Shipping Co., a Greek corporation with offices in Piraeus, Greece. Nereus’ American agent is Triton Shipping Co., which has offices in New York. Triton collects freights payable in New York and receives accounts from subagents in ports in the dollar area of the world. All payments go to a general operating account for Nereus ships, rather than into a separate account for each ship, and Triton pays disbursements for the expenses of running the ships from this account, on approval from Nereus. Triton also solicits some business for Nereus ships in the dollar area.
Mr. Lemos was an American citizen until 1962, when he renounced his citizenship and became a Greek citizen. He maintains a residence in London, and appellants allege that he also owns a home in Rye, New York. They cite an article in Time magazine and a listing of his name with an address and telephone number in the Rye telephone directory to support this contention. Mr. Lemos is intimately involved in the Nile and Nereus companies. In a deposition in another action involving Ner-eus, Triton’s vice-president characterized Mr. Lemos as the mouthpiece or representative of the owners of the Ner-eus ships, the individual with whom Triton deals in arrangements about the vessels.
Grammenos and Orfanides signed articles for the Chariot in Greece, and the • agreement stated that Greek law was to govern disputes between the parties. During the years they served on the Chariot, a tramp tanker, it did not put in at any American ports. When appellants were injured, they were treated by French and Greek doctors. In addition to this action, they filed a companion suit in the district court for the Eastern District of Virginia. After partial pretrial discovery, the case was dismissed on the ground of forum non conveniens. The seamen appealed, and the lower court was reversed by the Court of Appeals for the Fourth Circuit. Gramme-nos v. Liberian S/T CHARIOT, No. 15,017 May 5, 1971. In that case, Ner-eus as well as Triton was served and named as a defendant and thus the problem of adequacy of service was not presented as it is here. The case was remanded for further discovery and reconsideration in light of Lekkas v. Liberian M/V Caledonia, 443 F.2d 10 (4 Cir.1971), an opinion issued the same day as Grammenos. In Lekkas, the court held that although American courts could decline jurisdiction over claims of foreign seamen against foreign ship owners, before doing so a court ought to satisfy itself that it had before it full information on the factors that bear on its decision, such as the ownership and control of the ship and the allegiance of the shipowner. And it held that when shipowners requested the court to decline jurisdiction, they submitted to an obligation to provide information pertinent to the court’s decision. In Lekkas, too, the case was remanded for further discovery.
Summons and complaint were served on Nile under Rule 4(d) (3) of the Federal Rules of Civil Procedure by service on Triton through one of its officers. Service on Mr. Lemos was attempted by delivery of the papers to Miss Olive Helmsley, a woman working at Mr. Le-mos’ sister’s apartment in New York City. Appellants claim that both of these attempts at service were successful, and that even if they were not, that appellees waived defects in jurisdiction by making a general appearance in the case.
Appellants’ waiver point is not well taken. The need to file a special appearance in order to object to jurisdiction or venue has vanished. A party can file a general appearance and object to personal jurisdiction or venue at any time before the answer is filed or in the answer. Kerr v. Compagnie De Ultramar, 250 F.2d 860, 864 (2d Cir.1958) ; Bjorgo v. Weerden, 342 F.2d 558 (7 Cir.1965); Noto v. Cia Secula di Armanento, 310 F.Supp. 639 (S.D.N.Y.1970); Pacific Lanes, Inc. v. Bowling Proprietors Ass’n, 248 F.Supp. 347 (D.Or.1965). If a party enters a case, makes no objection to jurisdiction, and asks the court to act on its behalf in some substantive way, it will be held to have waived further objection. Savas v. Maria Trading Corp., 285 F.2d 336, 340-341 (4 Cir. 1960); Backo v. Local 281, United Brotherhood of Carpenters and Joiners, 308 F.Supp. 172 (N.D.N.Y.1969), aff’d 438 F.2d 176 (2d Cir.1970), cert. denied, 404 U.S. 858, 92 S.Ct. 110, 30 L.Ed.2d 99 (1971). A request for extension of time, such as appellees made, does not constitute waiver of jurisdictional objections. Pacific Lanes Inc. v. Bowling Proprietors Ass’n, supra.
The question, then, is whether there was any defect in the service of process. The standards set in Rule 4(d) for service on individuals and corporations are to be liberally construed, to further the purpose of finding personal jurisdiction in cases in which the party has received actual notice. Nowell v. Nowell, 384 F.2d 951 (5 Cir.1967), cert. denied, 390 U.S. 956, 88 S.Ct. 1053, 19 L.Ed.2d 1150 (1968); Rovinski v. Rowe, 131 F.2d 687 (6 Cir.1942). But there must be compliance with the terms of the rule, and absent waiver, incomplete or improper service will lead the court to dismiss the action unless it appears that proper service may still be obtained. Moore, Federal Practice, § 4.02 [4] (2d Ed.1970); Aquascutum of London, Inc. v. S. S. American Champion, 426 F.2d 205 (2d Cir.1970); Di Leo v. Shin Shu, 30 F.R.D. 56 (S.D.N.Y.1961).
Personal service on an individual, neither an infant nor an incompetent, can be obtained either by serving the man or woman in person or by leaving the summons with a person of suitable age and discretion at the party’s usual place of abode. Under Rule 4(d) (7), service can also be performed in conformity with the rules of the state in which it is made as to service in its own courts of general jurisdiction. In New York, personal service can be accomplished through the use of the methods in the federal rule; the state also permits other forms of service, called “substituted” and “expedient” service. N.Y.C.P.L.R. § 308(4) and (5). Substituted service may be resorted to when the two methods of obtaining personal service common to the state and federal rules have proven fruitless. Substituted service entails affixing the summons to the door of either the actual place of business, dwelling place or usual place of abode within the state of the person to be served and by mailing the summons to the last known residence of that person. Should it be attempted and fail, the New York law allows expedient service, that is, service “in such manner as the court, upon motion without notice, directs.” N.Y.C.P.L.R. § 308(5).
Appellants attempted to obtain jurisdiction over Lemos by leaving the summons with a person of suitable age and discretion at his usual place of abode. Many cases have interpreted the phrase “usual place of abode” for purposes of service of process. It has been held acceptable to leave the summons with the landlord or supervisor of the apartment building in which the party resides. See Nowell v. Nowell, supra. But when process was served on defendant’s married daughter, living in the same apartment building as her father, but in a different apartment, it was held insufficient. Di Leo v. Shin Shu, supra. In this case, appellants left the documents with an adult woman working for Lemos’ sister at her apartment in New York City. Lemos himself did not reside in this apartment or in the city. Therefore, it was not under any construction of the phrase, his usual place of abode. Service was properly quashed.
This is not to say, though, that substituted service would not prove effective; appellants did not attempt to utilize that method in this case. We cannot predict, of course, whether such an attempt would meet with success. But the fact of invalidity of the one attempt at service does not automatically require dismissal of the complaint. The mere lapse of time between the date of filing of the complaint and the date of effective service does not cause the complaint to abate. Messenger v. United States, 231 F.2d 328 (2d Cir.1956). And the court has power, under Fed.R.Civ.P. 4(a), if the service is invalid or improper, to cause additional or new summons to be issued and good service attempted. 2 Moore, Federal Practice, § 4.06 [1] (2d Ed.1970); Aquascutum of London, Inc. v. S. S. American Champion, supra, 426 F.2d at 210; Stanga v. McCormick Shipping Corp., 268 F.2d 544 (5 Cir.1959); Thompson v. Trent Maritime Co., 149 F.Supp. 468 (E.D.Pa.1957). As the court said in Stanga:
But while the Court’s conclusion does affirm the District Court’s action in setting aside the service of process made herein on Holmes, it does not necessarily follow that the final order of dismissal was proper at this stage.
. . . There may be other ways to effect valid service of process, e. g., attachment ... or perhaps, under some circumstances, on the Secretary of State. Of course, what those means are, or their availability in this case is not before us. Nor was it before the District Court.
There may well come a time in which the Trial Court, in the administration of the affairs of the Court, sees that there is simply no reasonably conceivable means of acquiring jurisdiction over the person of a defendant. When that time comes it may be proper to dismiss the cause. But, on this record, relating to one single attempted service of process, that point has not yet been reached. [268 F.2d at 554]
Appellants in this case ought to be given an opportunity to perfect service on Le-mos.
The question of service on Nile through Triton is more difficult. Rule 4(d) (3) permits personal service on a domestic or foreign corporation through Service on one of its officers, a managing or general agent, or any agent authorized by appointment or by law to receive service of process. In order for the corporation to be amenable to service in a state, it must have minimal contacts with the state, sufficient to warrant subjecting it to suit there without offending due process standards. See McGee v. International Life Insurance, 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). This must be more than an incidental contact with the state, although the party does not have to be authorized to do business in the state or have offices there. If the action of an agent of the party in the state is substantial, that will justify service on the defendant in that jurisdiction. See Arpad Szabo v. Smedvig Tankrederi A. S., 95 F.Supp. 519, 522 (S.D.N.Y.1951). If a defendant is found to have sufficient contacts to justify jurisdiction, complete and adequate personal service in compliance with the rules stated above must also be accomplished. It has been held that normally, the person in charge of the activities in the state which are the basis for the conclusion that the defendant is present is the managing agent for purposes of service. See Bomze v. Nardis Sportswear, 165 F.2d 33 (2d Cir. 1948).
On the basis of the skimpy record in this case, it is difficult to ascertain whether Nile has sufficient contacts to justify personal jurisdiction in New York. An affidavit of the president of Nile stated that the officers and directors are Greek citizens residing in Athens. The shares of the corporation are held by a Greek citizen residing in London, England. The corporation does not have any office or place of business in New York. It is engaged solely in international shipping. Appellants have produced no evidence of any business carried on in New York by Nile other than that of Triton.
The business affairs of Triton in New York, then, must be the basis for the power of the court to exercise jurisdiction over Nile, assuming it were properly served. Triton does solicit some business for Nile, but it is not clear whether this takes place in New York. Nothing indicates that Nile is associated or named in any way in connection with Triton’s office or that Triton does business only for Nile. Triton does have bank accounts in New York and an office there. It collects and disburses money for Nereus accounts, but apparently does not exercise discretion in these tasks and does not enter into contracts for Nile. The lower court held, without elaboration, that Nile was not present in New York. Finding, as we do, that service was inadequate under Rule 4(d) (3), we do not have to explore the intricacies of the current “minimum contacts” rule. See Aquascutum of London, Inc. v. S. S. American Champion, 426 F.2d 205 (2d Cir. 1970).
The crucial question in relation to service of process is whether Triton is a “general or managing agent” for Nile. Several eases have treated the issue of agency for foreign corporations and shipping companies. In De Claire Mink Ranches v. Federal Foods, Inc., 192 F.Supp. 148 (N.D.Ia.1961), the court discussed the definition of agent and concluded that it is a person or entity authorized to transact all business of the principal at a particular place or of a particular kind, generally. A general or managing agent must be invested with powers of discretion and must exercise judgment in his duties, rather than being under direct superior control as to the extent of his duty and the manner in which he executes it. See 2 Moore, Federal Practice § 4.22 [2] (2d Ed.1970).
In Arpad Szabo v. Smedvig Tankrederi A. S., supra, the court found that the activities of a shipping company’s agent which collected money and paid out funds for expenses incurred in operating the vessels and did occasional hiring for the shipowner, constituted “doing business” on the part of the principal and justified service on the agent. This case was followed in Green v. Compania De Navigacion Isabella, Ltd., 26 F.R.D. 616 (S.D.N.Y.1960), in which the court distinguished Kelly v. Three Bays Corp., 173 F.Supp. 835 (S.D.N.Y.1959), aff’d 276 F.2d 958 (2d Cir. 1960), a case in which the activities of the agent were held not to constitute presence of the principal. In Kelly, the agent solicited business for the principal and for many other firms and did occasional other tasks for the principal, but was not a husbanding agent and was not empowered to enter into contracts for the principal. And other cases have held that even a husbanding agent is not a general agent of the shipowner for purposes of service when it conducts all its activities in one locality and contracts with the owner on a ship-to-ship basis. Thyssen Steel Corp. v. Federal Commerce and Navigation Co., 274 F.Supp. 18, 20 (S. D.N.Y.1967); Amicale Industries, Inc. v. S. S. Rantum, 259 F.Supp. 534 (D.S. C.1966); Novitski v. Lykes Steamship Co., 90 F.Supp. 971 (E.D.Pa.1950).
The situation in the Amicale case included a factor present in this case; the corporation which did the husbanding in Charleston was an agent of a Louisiana corporation which was the shipper’s general agent in the United States. The decision may be construed to hold that sub-agents of the owner ought never be considered general agents under Rule 4(d) (3), in which case it would be directly on point, or can be seen as relying on the fact that the Charleston corporation handled only one city and did business on a ship-to-ship basis. In the present case, Triton is the sub-agent for the whole United States, and it does operate a running account for Nereus ships. Its activities are therefore somewhat closer to those of a general agent than were those of the corporation in Amieale. But Triton is in essence a collection agency, and monies are passed on to the principals as soon as possible. Triton does not exercise discretionary power; it is a sub-agent of Nile in one area for certain specific tasks, but is not the entity with overall authority for Nile’s activities in the United States. Nereus fills that role. These facts compel the conclusion that Triton does not fall within those who under Rule 4(d) (3) can be served to obtain jurisdiction over a corporation, and the service on Nile was properly quashed. We find no completed service on either defendant but reverse the dismissal of the action.
One further word is necessary. Should appellants obtain valid service over Lemos in one of the aforementioned ways, they will have to face his objection that he is not their “employer” under the Jones Act and is therefore not a proper party. He would also be expected to renew his objection to the assumption by a United States court of subject matter jurisdiction over these claims of foreign seamen, asserting that contacts with this country sufficient to warrant handling the case are absent. The court below noted in its opinion that had service been valid, it would have granted summary judgment on this ground. Such a conclusion is not warranted at this juncture. Discovery is being conducted on the remand from the companion case in Virginia, and the principles of the Lekkas case, controlling there, are applicable here. The court ought to give appellants an opportunity to substantiate their thesis that Lemos is an American resident who controls and is the beneficial owner of the Chariot; this inquiry will also determine his status as employer for purposes of Jones Act coverage.
There is no need at this time to delve further into the factors treated in Hellenic Lines Ltd. v. Rhoditis, supra, which influence the court’s decision on assumption of subject matter jurisdiction. While it is true that on the record as it now stands, the factors which normally incline the courts in this country to accept jurisdiction of the claims of foreign seamen are lacking, discovery may well tip the balance in the other direction. Clarification of the confused circumstances surrounding the ownership of Nile might reveal that Mr. Le-mos is indeed the beneficial owner of the company and is an American resident who ought not, through formalities of incorporation, escape the duties toward seamen which Congress has imposed on shipowners.
These issues will be relevant only if appellants obtain valid service over one of the parties. We reverse the dismissal of the complaint and remand for reinstatement so that appellants may attempt to remedy the defects in service.
. The New York courts have construed the terms “dwelling house” and “usual place of abode” for purposes of determining the validity of substituted service. See Karlin v. Avis, 326 F.Supp. 1325, 1330 (E.D. N.Y.1971) ; Rich Products Corp. v. Diamond, 51 Misc.2d 675, 273 N.Y.S.2d 687 (Sup.Ct.1966) ; Cottakis v. Pezas, 12 Mich.2d 214, 215, 176 N.Y.S.2d 495 (Sup. Ct.1958). If Mr. Lemos resides even temporarily in Rye and has his name and address in the telephone book, that may be sufficient to qualify his home as his “dwelling place” or “place of abode.”
. Appellants point out that in Hellenic Lines Ltd. v. Rhoditis, supra, the first affidavits of the president of the shipping company also denied contacts with the United States, but that later discovery revealed ownership by American interests. However, in that case, the plaintiffs had produced enough evidence to support in personam jurisdiction in this country; the issue was whether the court ought to exercise its discretion to decline subject matter jurisdiction. In any case, we can draw no inference from the activities of the parties there, different from those in the present case, to support the conclusion that Nile and Lemos are concealing the truth.
. In Fraley v. Chesapeake and Ohio Ry. Co., 397 F.2d 1 (3 Cir. 1968), the court ordered the defendant to answer interrogatories about the nature and extent of its business within the state in order for the trial court to make a decision on whether it was “doing business” in the state. Service had been adequate in that case. In this action, the court below refused to order Nile and Lemos to answer interrogatories submitted by the plaintiffs; these were aimed at showing American control of the corporation and Jones Act coverage, not business contacts with the State of New York. Should appellants obtain valid service, discovery on these issues may be appropriate. See p. 1802, infra.
. Appellants did not, as did the plaintiffs in Aquascutum, supra, make a motion, after service on an agent in this country was declared void, for permission to effect service on the defendants in a foreign country. On remand, they might explore the possibility of serving Nile or Nereus under Rule 4(d) (3) or under New York’s long-arm statute. We note, though, that on the current state of the record, the applicability of the latter provision is doubtful. See Delagi v. Volkswagenwerk AG, 29 N.Y.2d 426, 328 N.Y.S.2d 653, 278 N.E.2d 895 (N.Y.Ct.App. January 13, 1972).
. Forum non conveniens is not an appropriate ground for dismissal at this point. The doctrine, which “involves the dismissal of a case because the forum chosen by the plaintiff is so completely inappropriate and inconvenient that it is better to stop the litigation in the place where brought and let it start all over again somewhere else ... is quite naturally subject to careful limitation for it not only denies the plaintiff the generally accorded privilege of bringing action where lie chooses, but makes it possible for him to lose out completely, through the running of the statute of limitations in the forum finally deemed appropriate.” All States Freight, Inc. v. Modarelli, 196 F.2d 1010, 1011 (3d Cir. 1952) ; 1 Moore, Federal Practice 0.145 [2], 0.145 [5], A decision to dismiss “presupposes at least two forums in which the defendant is amenable to process . . . [and] furnishes criteria for choice between them.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-507, 67 S.Ct. 839, 842, 91 L.Ed. 1055 (1947). The factors to be taken into consideration include those relevant to the decision on refusal to exercise subject matter jurisdiction, particularly the issue of availability of another forum, as well as other practical questions such as access to sources of proof, and convenience and cost of obtaining or compelling attendance of witnesses. See Gkiafis v. Steamship Yiosonas, 387 F.2d 460 (4th Cir. 1967) ; Odita v. Elder Dempster Lines, Ltd., 286 F.Supp. 547 (S.D.N.Y.1968) ; Voyiatzis v. National Shipping and Trading Corp., 199 F.Supp. 920 (S.D.N.Y.1961). On the issue of availability of an alternative forum, the parties may wish to introduce proof of foreign law (cf. Rule 44.1, Fed. R.Civ.P.; 5 Moore, Federal Practice, 44.-1.01 [1]) ; normally when the plaintiff is remanded to a foreign forum, the defendant agrees on the record to submit to jurisdiction elsewhere and to post security for any judgment awarded there. See, e. g., Garis v. Companía Maritima San Basilio, 386 F.2d 155 (2d Cir. 1967) ; Berendson v. Rederiaktiebolaget Volo, 257 F.2d 136 (2d Cir.), cert. denied, 358 U.S. 895, 79 S.Ct. 156, 3 L.Ed.2d 121 (1958) ; Lambiris v. Neptune Maritime Co., App.Div., 326 N.Y.S.2d 862 (1st Dept.1971).
Question: Are there two issues in the case?
A. no
B. yes
Answer:
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songer_casetyp1_7-3-5
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I
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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 - misc economic regulation and benefits".
ITT WORLD COMMUNICATIONS, INC. and RCA Global Communications, Inc., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, and Graphnet Systems, Inc., Telenet Communications Corporation, TRT Telecommunications Corporation, and Western Union International, Inc., Intervenors.
Nos. 48, 61, Dockets 77-4028, 78-4047.
United States Court of Appeals, Second Circuit.
Argued Dec. 1, 1978.
Decided March 22, 1979.
Grant S. Lewis, New York City (LeBoeuf, Lamb, Leiby & MacRae, New York City, John S. Kinzey, Jr., Howard A. White, and John A. Ligón, New York City, of counsel), for petitioner, ITT World Communications, Inc.
H. Richard Schumacher, New York City (Cahill Gordon & Reindel, New York City, John A. Shutkin, Sandra S. Baron, Francis J. DeRosa and Charles M. Lehrhaupt, New York City, of counsel), for petitioner, RCA Global Communications, Inc.
Gregory M. Christopher, Washington, D. C. (F.C.C., Washington, D. C., Robert R. Bruce, Gen. Counsel, Daniel M. Armstrong, Associate Gen. Counsel and John H. Shenefield, Asst. Atty. Gen., Robert B. Nicholson, Daniel J. Conway, Dept, of Justice, Washington, D. C., of counsel), for respondents, Federal Communications Commission and United States of America.
E. Edward Bruce, Washington, D. C. (Covington & Burling, Washington, D. C. and Roderick A. Mette, Vice President and Counsel, TRT Telecommunications Corp., Washington, D. C., of counsel), for intervenor, TRT Telecommunications Corporation.
Donald E. Ward, Washington, D. C. (Philip M. Walker, Vice President and Gen. Counsel, Telenet Communications Corp., Vienna, Va., of counsel), for intervenor, Telenet Communications Corporation.
Before MOORE, FRIENDLY and GURFEIN, Circuit Judges.
FRIENDLY, Circuit Judge:
ITT World Communications, Inc. (ITT) and RCA Global Communications, Inc. (RCA), both international record carriers (IRC’s), joined by intervenor TRT Telecommunications Corp., also an IRC, ask us to review an order of the Federal Communications Commission (FCC or the Commission), released January 11, 1977, 63 F.C.C.2d 402 (1977), insofar as it granted applications of intervenors Graphnet Systems, Inc. (Graph-net) and Telenet Communications Corp. (Telenet) under § 214 of the Federal Communications Act (the Act), 47 U.S.C. § 214, for certificates to engage in specialized international record communications service. More specifically, Graphnet’s application was to lease facilities from Communications Satellite Corporation (Comsat) and connecting facilities in the United States to permit its subscribers to use its facsimile services to communicate with terminal devices in Belgium, Denmark, France, Italy, the Netherlands, Norway, Spain, Sweden, Switzerland, the United Kingdom and West Germany, and Telenet’s application was to obtain Comsat circuits and lease appropriate connecting facilities in the United States to extend its public packet-switched data communications service from the continental United States to the United Kingdom and points beyond. In the same proceeding, the FCC granted an application of RCA “for authority to provide an enhanced class of Overseas Datel Service (Datel II) to be offered initially on an experimental basis for a one-year period between the United States and The Netherlands using its previously authorized overseas communications facilities” and an application of Western Union International, Inc. (WUI), also an IRC, “for authority to use its previously authorized overseas communications facilities to provide Database service on an experimental basis for a one-year period between the United States and the United Kingdom.” 63 F.C.C.2d at 403. Pursuant to the Commission’s regulations, 47 C.F.R. § 63.52(c), ITT and RCA had filed timely petitions to deny Graphnet’s and Telenet’s applications.
On February 11,1977, RCA petitioned for reconsideration of the FCC’s decision insofar as it granted the applications of Graph-net and Telenet. Having meanwhile denied RCA’s request for a stay, the Commission denied the petition in an extensive opinion released April 3, 1978, Graphnet Systems, Inc., 67 F.C.C.2d 1020 (1978). ITT and RCA have petitioned for review by this court, and TRT has intervened in support of their petition. WUI, which had opposed the application before the FCC and intervened in this action, filed no brief and made no argument. Graphnet and Telenet likewise intervened but only Telenet filed a brief and argued.
I.
Before discussing the legal issues, it will be well to recount in summary form the structure of the United States system of “record carriers” as it was before the decision here under review. The Western Union Telegraph Co. (WU) was, until very recently, the sole domestic carrier of telegrams. However, following upon the decision in Specialized Common Carrier Services, 24 F.C.C.2d 318 (1970), 29 F.C.C.2d 870 (1971), reconsideration denied, 31 F.C.C.2d 1106 (1971), aff’d sub nom. Washington Utilities & Transp. Comm’n v. FCC, 513 F.2d 1142 (9 Cir.), cert. denied, 423 U.S. 836, 96 S.Ct. 62, 46 L.Ed.2d 54 (1975), numerous companies, including Graphnet and Telenet, have been authorized to furnish specialized domestic data services. International record service (including record service with Hawaii) has been furnished by only a few carriers. The market is dominated by RCA, ITT, and WUI, with several smaller companies, including TRT, French Cable Co., and U. S. Liberia Radio Corp., also participating. See generally Grad & Goldfarb, Government Regulation of International Telecommunications, 15 Colum. J. Transnat’l L. 384, 431 (1976). The IRC’s have been thought to be prohibited by the proviso to § 222(a)(5) of the Act, or by emanations from it, from engaging in domestic telegraph operations except by accepting and delivering messages at gateway cities approved by the FCC. At present there are only five such gateways, to wit, New York, Washington, D. C., San Francisco, Miami, and New Orleans. Since 1972 the Commission has been conducting — petitioners say rather has not been conducting — Docket No. 19660 in which the IRC’s request approval of numerous additional gateways. Pursuant to what appears to have been deemed a statutory prohibition, see International Record Carriers, 38 F.C.C.2d 543, 548 (1972) (establishing Docket 19660), the Commission, while allowing IRC’s to have domestic affiliates, has forbidden interconnection between them and the affiliated international operations pending the conclusion of Docket 19660. See, e. g., RCA Globcom Systems, Inc., 67 F.C.C.2d 1328, 1331-32 (1978); RCA Global Communications, Inc., 56 F.C.C.2d 660, 672 (1975); United States Transmission Systems, Inc., 48 F.C.C.2d 859, 862 (1974), reconsideration denied, 51 F.C. C.2d 207, 209 (1975), aff’d, American Tel. & Tel. Co. v. F. C. C., 176 U.S.App.D.C. 288, 539 F.2d 767 (1976). On the other side of the coin, this court has held that the Commission is prohibited from authorizing WU to engage in international mailgram service. Western Union International, Inc. v. FCC, 544 F.2d 87 (2 Cir. 1976), cert. denied, 434 U.S. 903, 98 S.Ct. 299, 54 L.Ed.2d 189 (1977). In addition to its other objections, petitioner RCA sees in the decision under review a departure from the previously prevailing separation of domestic from international operations, made without adequate consideration or record support; intervenor TRT claims the departure to have been illegal. We shall discuss these contentions in part V below.
II.
Section 214(a) prohibits new common carrier communication “lines” in the absence of a certificate from the Commission that “the present or future public convenience and necessity require” it. Section 214(a) itself imposes no procedural requirements. However, the Commission has laid down quite elaborate specifications for the contents of an application under § 214, 47 C.F.R. § 63.01 et seq., and has provided that any interested party may file an application to deny it, id. § 63.52(c). The applicant may then file an opposition and the opposer a reply. Allegations of fact not subject to official notice must be supported by affidavit. The lack of a hearing requirement in § 214(a) contrasts sharply with § 309(e), which provides that, upon an application being made for a construction permit or station license, the Commission shall hold a hearing if “a substantial and material question of fact is presented or the Commission for any reason is unable to make the finding” of “public interest, convenience and necessity” specified in § 309(a).
Neither is an evidentiary hearing on a § 214(a) application required by the Administrative Procedure Act. Although licensing constitutes “adjudication”, 5 U.S.C. § 551(6) and (7), this does not make an application under § 214 subject to an evidentiary hearing since 5 U.S.C. § 554 applies only to “every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing”, and § 556, so far as it deals with adjudications, applies only when a hearing is required by § 554.
This analysis has two consequences. The first is that the post-decision requests of TRT and WUI for an evidentiary hearing were addressed to the Commission’s discretion. The second is that the standard for our review under 5 U.S.C. § 706 is not the substantial evidence test of § 706(2)(E) but that of § 706(2)(A) — “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” See Automobile Club of New York, Inc. v. Cox, 592 F.2d 658, 664 (2 Cir. 1979).
Vague as the standard of § 214 is, the Commission is not without guidance in its interpretation. The leading case is FCC v. RCA Communications, Inc., 346 U.S. 86, 73 S.Ct. 998, 97 L.Ed. 1470 (1953). The Court there held that the Commission could not authorize a competing international radiotelegraph service solely because of a national policy in favor of competition but “must at least warrant, as it were, that competition would serve some beneficial purpose such as maintaining good service and improving it.” Id. at 97, 73 S.Ct. at 1005. It is not enough that “the Commission recites that competition may have beneficial effects” if it “does so in an abstract, sterile way.” Id. at 94 & n. 6, 73 S.Ct. at 1004. On the other hand it is “not inadmissible for the Commission, when it makes manifest that in so doing it is conscientiously exercising the discretion given it by Congress, to reach a conclusion whereby authorizations would be granted wherever competition is reasonably feasible.” It need not “make specific findings of tangible benefit” but must show “ground for reasonable expectation that competition may have some beneficial effect.” Id. at 96-97, 73 S.Ct. at 1005. Applying the RCA case, the Court of Appeals for the District of Columbia Circuit reversed and remanded an authorization to provide competing private-line voice only telephone service between the United States Mainland and Hawaii on the ground that it was impermissible to authorize such service merely to equalize competition among competitors and that the FCC’s statements on the benefits of competition were as “sterile” as in the RCA case. See Hawaiian Telephone Co. v. FCC, 162 U.S. App.D.C. 229, 234, 498 F.2d 771, 776 (1974).
Petitioners and intervenor TRT do not dispute that there is a growing market for the specialized services which Graphnet and Telenet proposed or that the service was not being provided when Graphnet and Telenet applied. They argue, however, that Graphnet and Telenet in fact were in no position to supply the service and that the Commission did not adequately consider the possibility of its being provided by the existing IRC’s either by interconnection with domestic circuits or by the extension of their own facilities to interior points if the Commission has been wrong in construing 47 U.S.C. § 222 as prohibiting this.
III.
The reason why Graphnet and Telenet were not able to furnish the direct service they proposed and have subsequently entered into interconnect agreements with IRC’s to do so is that the applicants had not — and indeed have not yet — made the necessary arrangements with the foreign communications agencies with which they must interconnect to provide international service. The claim is not simply that Graphnet and Telenet were not “fit, willing and able” to perform the services which they proposed, since § 214(a), unlike its counterparts in the Motor Carrier Act, 49 U.S.C. § 307, in Part III of the Interstate Commerce Act dealing with water carriers, 49 U.S.C. § 909(c), and in the Federal Aviation Act, 49 U.S.C. § 1371(d)(1), does not in terms require a finding to that effect, but that the Commission was unjustified in basing its award on the “new and innovative” character of Graphnet’s and Telenet’s proposals, 63 F.C.C.2d at 406-07, when in fact the IRC’s would have been equally interested in providing these specialized services as soon as foreign communications administrations were ready to handle them. As RCA argues (Brief, p. 42), the IRC’s were “victimized” by “their ‘defeat’ in a synthetic paper ‘race’ to filé an application without regard to whether it could be implemented or not.”
The Commission, Graphnet and Telenet answer, in effect, that this is the old problem of the chicken and the egg. The Commission thought that denial of Graphnet’s and Telenet’s applications for lack of the evidence of agreements with foreign governments usually required “might simply encourage foreign correspondents not to consider appropriate agreements for the overseas termination of Graphnet and Telenet services” — presumably because of doubt whether the latter would in fact be able to render the service — and believed that regulatory needs could be satisfied by requiring the execution and filing of satisfactory agreements prior to initiation of the services rather than prior to their authorization. 63 F.C.C.2d at 408.
The latter remark makes us wonder whether the Commission had grasped the IRC’s objection. While the reservation proposed by the Commission might well suffice to protect against arrangements that would unduly increase the cost of the service or constitute a precedent prejudicial to other carriers, it did not speak to the point that Graphnet and Telenet had made only a paper proposal and did not deserve a reward on the score of innovation. Still we think it is not unreasonable for the Commission to grant applications for permits in order to assure the foreign correspondents that the applicants are competent to deal with them without further difficulty in obtaining United States authorization. Even under the possibly more restrictive standards of the Interstate Commerce Act, see General Telephone Co. of Southwest v. United States, 449 F.2d 846, 856 (5 Cir. 1971), there is no rule that existing carriers must be afforded an opportunity to improve their service before a certificate can be issued to an applicant proposing new or better service. United States v. Dixie Highway Express, Inc., 389 U.S. 409, 88 S.Ct. 539, 19 L.Ed.2d 639 (1967), see also Blue Bird Coach Lines, Inc. v. United States, 328 F.Supp. 1331, 1336-37 (W.D.N.Y.1971). While it is true that the IRC’s could not have provided the improved service without the cooperation of foreign communications administrations, they have submitted nothing to show that they had specific plans to solicit such cooperation to offer facsimile or packet service until Graphnet’s and Telenet’s applications spurred them on.
While these considerations suffice to support the grant of temporary certificates to Graphnet and Telenet, they do not lead to the conclusion that the Commission was warranted in granting perpetual authorizations irrespective of how long the consummation of necessary agreements with foreign communications administrations may take. There comes a time when an authority unexercised because of inability becomes detrimental to the public interest, since it may discourage other carriers who have the ability from making the investment needed to perform a service, without any benefit to the public. In Cross-Sound Ferry Services, Inc. v. United States, 573 F.2d 725 (2 Cir. 1978), we reviewed an order of the Interstate Commerce Commission authorizing a competing ferry service where there were serious safety and accessibility problems at the termini. We approved the action of the ICC in granting a certificate limited to a three year term, at the end of which renewal could be considered. The ICC’s brief in Cross-Sound cited several eases where it had imposed time limitations when the feasibility of a service was in doubt. American Delivery Systems, 346 I.C.C. 465 (1974); Watkins Motor Lines, 113 M.C.C. 658, modified 114 M.C.C. 562 (1971); and Allied Delivery System, 120 M.C.C. 110 (1974). See also Texas-Oklahoma Exp., 110 M.C.C. 769, 784-85 (1969) (limit imposed because other carriers trying to provide same service had failed); Trans Western Exp., 118 M.C.C. 1, 12 (1973) (limit imposed to insure that applicant lived up to proposed performance). This was the course the FCC should have followed here; it was arbitrary and capricious to grant certificates unlimited in time when there was such serious doubt whether they could be implemented. Moreover, as will be seen, imposition of such a limit was required on other grounds as well.
IV.
The petitioners’ argument that the service proposed by Graphnet and Telenet could also be provided by the IRC’s via interconnection faces the initial difficulty that even if the proposition were established, it would not warrant our reversing the Commission. In addition to the cases cited in Part III, it is worth noting the statement in Washington Utilities & Transp. Comm’n v. FCC, supra, 513 F.2d at 1157, that the “statutory language does not suggest that the Commission is to give controlling weight to the mere fact that existing common carriers have the ability to perform the service an applicant wishes to furnish.” See also Pocket Phone Broadcast Service v. FCC, 176 U.S.App.D.C. 99, 103-104, 538 F.2d 447, 451-52 (1976). Petitioners’ argument must be rather that the Commission did not adequately consider the possibility of affording the service by interconnection and articulate the reasons why it would be preferable to authorize Graphnet and Telenet to provide a through service, and this at the cost of disrupting the historic separation of domestic and international record communications. See Part V infra.
It must be conceded that the FCC’s findings on this point are exceedingly meagre. The Commission says in 15 of its opinion, 63 F.C.C.2d at 405 that:
The services presently offered by the international record carriers do not have the inherent capability to provide data transmission services for a substantial number of potential users in a cost effective manner.
However, this does deal with the contention that the IRC's could expand their services when foreign communications administrations were ready to join, until which time, as developed above, Graphnet and Telenet were equally without capability to render the service which they proposed. In 17, 63 F.C.C.2d at 406, the Commission elaborates on the need for “more and better service” but acknowledges that “[i]t remains to be determined how this service can best be provided.” It then summarizes the four proposals before it, none involving interconnection. After characterizing Graphnet and Telenet as “authorized common carriers with proven capability and expertise in the provision of sophisticated domestic data communications services”, 63 F.C.C.2d at 407, and saying that grant of their applications “would extend the benefits of their capability and expertise into the competitive international environment and make available to the public the benefits inherent in their respective service offerings,” id., the Commission launches into a statement of its intentions to subject the new authorization “to specific reporting requirements so that the Commission can evaluate information gained from actual operating experience and keep itself informed as to the exact dimensions of the public need and how it can be best fulfilled.” Id. While the decision denying RCA’s petition for reconsideration, 67 F.C.C.2d at 1030-32, 1133-37, contains a more elaborate description of the proposed services, it also says nothing specific about interconnection.
The FCC urges on brief that the absence of any discussion of this subject was due to the fact that the issue was never raised. Our examination of the record shows that the issue was raised by WUI and, to a lesser extent, by RCA, with respect to Telenet. Indeed, WUI argued that interconnection was not only equal but superior to Telenet’s proposal. However, the point seems to have become lost in the shuffle of arguments proffered by the IRC’s including many that are no longer pressed. Considering the Commission’s opinion as a whole, we think that its expressions as to the desirability of projecting Graphnet and Telenet abroad was a sufficient answer to such argument on the score of interconnection as was made, although barely so.
y.
The IRC’s strongly pressed before the Commission the point that it was unfair to allow Graphnet and Telenet to operate from all points in the United States whereas they were confined to the five gateways, at least until, in the fullness of time, Docket No. 19660 might provide more. In 115 of its opinion, the FCC characterized RCA’s position with respect to competitive disadvantage as deriving “from the fact that RCA, as an international telegraph carrier, is restricted by Section 222 of the Act from domestic telegraph operations other than accepting or delivering international telegraph messages in designated gateway cities; whereas Graphnet and Telenet, which are not international telegraph carriers as defined in Section 222, are not similarly restricted.” 63 F.C.C.2d at 408-09. After developing why this disadvantage would not be so serious as the IRC’s contended, the Commission went on to “note that any possible competitive disadvantage which might accrue to the international telegraph carriers in this situation derives not from our actions authorizing Graphnet and Telenet to extend their service offerings, but from restrictions which Congress imposed on the international telegraph carriers. We cannot refuse to authorize services which would clearly benefit the public merely because a potential competitor might arguably be restricted in the nature of his competitive response by provisions of the Act which Congress, in its judgment, has seen fit to impose on certain entities.” 63 F.C.C.2d at 409. It also refused to require Graphnet and Telenet to set up separate corporations for their domestic and overseas service, as it had done in the case of the IRC’s. RCA Global Communications, Inc., supra, 56 F.C.C.2d 660. See also RCA Globcom Systems, Inc., supra, 67 F.C.C.2d 1328; ITT, Domestic Transmission Systems, supra, 62 F.C.C.2d 236.
In their briefs in this court RCA and ITT argue that the restriction on their serving points in the United States other than designated gateways is not compelled by the Act but results from Commission policy. Because of this, they say, it was error for the Commission to find public convenience and necessity in the ability of Graphnet and Telenet to provide direct service from and to nongateway points since all that was needed was for the Commission to modify its policy of forbidding the IRC’s to serve points other than gateways. Alternatively, ITT argues that the Commission should have viewed the case as matters would stand if a large number of additional gateways were to be designed in Docket No. 19660. In contrast, TRT argues for the first time here that, just as international telegraph carriers are restricted from domestic operations except in gateways (in its view by statute and not simply by FCC policy), domestic telegraph carriers are wholly prohibited from international operations. In answering RCA and ITT, counsel for the Commission say that “the Commission’s discussion of Section 222 was pure dictum” (Brief, p. 30 n. 22) and rely on the Commission’s findings of lack of significant prejudice. They object to our considering TRT’s argument since it was not presented to the Commission and alternatively contend it to be without merit. In reply briefs, RCA repeats that the Commission’s action was “flawed by a misperception” of § 222 of the Communications Act (pp. 13 — 21), and ITT insists that the characterization of the Commission’s references to § 222 as dictum requires a remand “if for no other reason than to permit the FCC to provide the Court with a fuller and more definitive statement of the Commission’s interpretation of Section 222 and its significance to this proceeding.” (p. 11 n.**). TRT urges us to consider its argument and to uphold it.
Although we have concluded that these petitions to review are not the appropriate vehicle for attempting definitive construction of § 222, it is necessary to open up the problem. We observe preliminarily that although obscurity in federal statutes is not a new phenomenon to this court, we have rarely seen opacity quite as dense as here. This is remarkable since the issue is not one understandably overlooked by Congress but rather one lying near the very heart of what that body had been debating for some years. The best solution, at least from the standpoint of the courts, would be for Congress to clear away the debris it created thirty-five years ago and clearly advise what it wants. Legislation to that end was introduced into the last Congress, see H.R. 13015, 95th Cong., 2d Sess. (1978), but was not reported out of committee. We understand that bills importantly affecting the structure of the industry have been introduced in the 96th Congress.
Section 222, entitled “Consolidations and Mergers of Telegraph Carriers”, was added to the Communications Act by the Act of March 6, 1943, 57 Stat. 5. Judge Anderson recounted much of the relevant background in his opinion for the majority of this court in Western Union International, Inc. v. FCC, supra, 544 F.2d at 89-91. Although Congress had been studying the larger problem of the future of the radiotelegraph industry, whose functioning had been considerably disrupted by national security considerations during World War II, the immediate concern of Congress was to permit the merger of the financially ailing Postal Telegraph Co., a domestic carrier, into Western Union Telegraph Co. (WU). Since this merger would have the effect of granting WU a de facto monopoly in “ordinary commercial messenger business within the United States”, S.Rep.No.769, Committee on Interstate Commerce, Study of the Telegraph Industry, 77th Cong., 1st Sess. 20 (1941) (hereafter Telegraph Study), Congress feared that WU, which also had extensive international operations, would be able, unless legislation prevented, to divert unrouted international messages to its own service, thereby seriously damaging other international record carriers. The problem had to be considered against the background that prior to June, 1942, RCA had served 12 and ITT’s predecessor, Mackay Radio & Telegraph Co., had served 16 large cities within the United States. Although the domestic radiotelegraph industry “grew up through a desire of these companies, which are primarily in the international communications business, to establish their own pick-up and delivery service in the important centers where the bulk of the international business originates,” it had developed, by 1942, into a substantial domestic business which amounted to approximately 15 percent of total revenue. Telegraph Study at 7.
Section 222(a), entitled “Definitions”, supplies these for ten terms “[a]s used in this section.” The important ones for our purposes are § 222(a)(2), (3), (5) and (6); we set these out in the margin. Of particular importance is the proviso to § 222(a)(5).
Section 222(b) authorizes consolidation or merger of telegraph carriers as follows:
(1) It shall be lawful, upon application to and approval by the Commission as hereinafter provided, for any two or more domestic telegraph carriers to effect a consolidation or merger; and for any domestic telegraph carrier, as a part of any such consolidation or merger or thereafter, to acquire all or any part of the domestic telegraph properties, domestic telegraph facilities, or domestic telegraph operations of any carrier which is not primarily a telegraph carrier: Provided, That, except as provided in paragraph (2) of this subsection, no domestic telegraph carrier shall effect a consolidation or merger with any international telegraph carrier, and no international telegraph carrier shall effect a consolidation or merger with any domestic telegraph carrier.
(2) As a part of any such consolidation or merger, or thereafter upon application to and approval by the Commission as hereinafter provided, the consolidated or merged carrier may acquire all or any part of the domestic telegraph properties, domestic telegraph facilities, or domestic telegraph operations of any international telegraph carrier.
Passing over § 222(c)(1), which contains provisions for the Commission’s passing upon proposed consolidations or mergers, we arrive at § 222(c)(2) which provides:
Any proposed consolidation or merger of domestic telegraph carriers shall provide for the divestment of the international telegraph operations theretofore carried on by any party to the consolidation or merger, within a reasonable time to be fixed by the Commission, after the consideration for the property to be divested is found by the Commission to be commensurate with its value, and as soon as the legal obligations, if any, of the carrier to be so divested will permit. The Commission shall require at the time of the approval of such consolidation or merger that any such party exercise due diligence in bringing about such divestment as promptly as it reasonably can.
Section 222(e) contains elaborate provisions designed to insure that “[i]n the case of any consolidation or merger of telegraph carriers pursuant to this section”, the merged carrier will equitably distribute among the international telegraph carriers telegraph traffic by wire or radio without the continental United States.
On a purely literal reading, § 222 does not speak at all with respect to applications under § 214 for service which the applicant is to perform itself, and the only operative provisions with respect to separation of domestic and international operations are the proviso to § 222(b)(1), supra, that except as therein provided no domestic telegraph carrier shall consolidate or merge with an international telegraph carrier, and the requirement of § 222(c)(2), supra, that any consolidation or merger of domestic telegraph carriers shall provide for the divestment of international telegraph operations theretofore carried on by any party to the consolidation or merger. On this literal approach, the proviso to § 222(a)(5) would be read as merely definitional, as the statute says it should be. In other words, for the purposes of applying the majority of the traffic and revenues tests of § 222(a)(2) and (3), international traffic accepted and delivered at the gateways, “and the incidental transmission or reception of the same over its own or leased lines or circuits within the continental United States”, presumably to or from the cable or radio station, constitutes domestic and not international traffic. Also, and more important, the international telegraph operations that had to be divested under § 222(c)(2) could engage in the operations described in the gateway proviso.
However, it has now been established, so far as this circuit is concerned, that in one respect § 222 means more than it literally says. Drawing heavily on legislative history, a divided panel of this court held in Western Union International, Inc. v. FCC, supra, 544 F.2d at 93, that “§ 222(c)(2)’s directive as to the divestment by the merged domestic carrier (WU) of ‘international telegraph operations theretofore carried on by any party to the consolidation or merger’ was meant as a continuing bar to WU’s involvement in international record communications....” However, this holding, from which one judge strongly dissented, 544 F.2d at 93-96, does not automatically lead to the conclusion that all of § 222 must be read into § 214. An important basis for the holding that WU was barred from applying under § 214 to engage in international operations was that “[tjhis was the price paid by the company for the acquisition of a domestic monopoly over telegraph service.” 544 F.2d at 93. Since the IRC’s sought no such monopoly but remained in vigorous competition with each other, a still more extensive invocation of legislative history or deference to administrative interpretation would be required to justify a reading of this statute that would bar the IRC’s from domestic telegraph operations outside the designated gateways as a matter of law.
The legislative history is both abundant and confusing. For present purposes it suffices to say that in the last phase of congressional consideration, the House committee deleted the divestment clause and stated it was therefore omitting the § 222(a)(5) proviso “as unnecessary”, H.R. Rep. No. 69, Committee on Interstate and Foreign Commerce, 78th Cong., 1st Sess. 6 (1943), but that both were restored by the Conference Committee, which explained its action as follows:
It was felt desirable to include this proviso, in order clearly to permit carriers to continue the operations referred to, because of the requirement (in subsection (c)(2)) that in case of a consolidation or merger of domestic telegraph companies the plan of consolidation or merger shall provide for the divestment of the international telegraph operations theretofore carried on by any party to the consolidation or merger. H. Rep. No. 142, Conference Report on S. 158, 78th Cong., 1st Sess. 10 (1943).
While this is rather Delphic, the Commission has long taken it as a mandate to prevent IRC’s from originating or terminating international traffic at cities other than those designated by the Commission as gateways. Western Union Telegraph Co., 68 F.C.C.2d 98, 99 (1978) (rejecting in part proposed tariff filed by WU pertaining to interconnection of domestic record services with IRC’s); RCA Globcom Systems, Inc., supra, 67 F.C.C.2d at 1331-32 (barring interconnection between IRC and domestic affiliate to avoid creation of unauthorized gateway); International Record Carriers, 58 F.C.C.2d 250, 254-57' (1976) (permitting each IRC to operate in all existing gateways); United States Transmission Systems, Inc., supra, 51 F.C.C.2d at 208-09 (barring interconnection between ITT and a domestic affiliate pending decision in Docket 19660); International Record Carriers, 40 F.C.C.2d 1082, 1084-85 (1973) (barring IRC’s from providing free direct access from hinterland points to gateway facilities for international traffic); International Record Carriers, 38 F.C.C.2d 543, 548 (1972) (establishing general inquiry into designation of new gateways). See also RCA Alaska Communications, Inc., 22 F.C.C.2d 200, 202-03 (1970). Indeed, the major premise of Docket 19660 is that if IRC’s are to be able to serve
Question: What is the specific issue in the case within the general category of "economic activity and regulation - misc economic regulation and benefits"?
A. social security benefits (including SS disability payments)
B. other government benefit programs (e.g., welfare, RR retirement, veterans benefits, war risk insurance, food stamps)
C. state or local economic regulation
D. federal environmental regulation
E. federal consumer protection regulation (includes pure food and drug, false advertising)
F. rent control; excessive profits; government price controls
G. federal regulation of transportation
H. oil, gas, and mineral regulation by federal government
I. federal regulation of utilities (includes telephone, radio, TV, power generation)
J. other commercial regulation (e.g.,agriculture, independent regulatory agencies) by federal government
K. civil RICO suits
L. admiralty - personal injury (note:suits against government under admiralty should be classified under the government tort category above)
M. admiralty - seamens wage disputes
N. admiralty - maritime contracts, charter contracts
O. admiralty other
Answer:
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