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What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
Thomas S. JONES, Plaintiff-Appellant, Cross-Appellee, v. CENTRAL SOYA COMPANY, INC., Defendant-Appellee, Cross-Appellant.
No. 83-7468.
United States Court of Appeals, Eleventh Circuit.
Dec. 10, 1984.
Champ Lyons, Jr., Mobile, Ala., for plaintiff-appellant, cross-appellee.
William C. Tidwell, III, Kathryn Anne Eckerlein, Mobile, Ala., for defendant-ap-pellee, cross-appellant.
Before HILL and HENDERSON, Circuit Judges, and WISDOM , Senior Circuit Judge.
Honorable John Minor Wisdom, U.S. Circuit Judge for the Fifth Circuit, sitting by designation.
ALBERT J. HENDERSON, Circuit Judge:
Thomas S. Jones and Central Soya Company, Inc. (“Central”) both challenge the reasonableness of the amount of attorney’s fees awarded to Jones by the United States District Court for the Southern District of Alabama in a successful action against Central alleging a violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (“ADEA”). The jury found Central’s conduct to be willful and awarded Jones double damages in the amount of $41,666.42. The district court later granted Jones an additional interim amount of $18,796.00 as well as reinstatement with full pension benefits.
Pursuant to a provision in 29 U.S.C. § 216(b) authorizing reasonable attorney’s fees to the prevailing plaintiff in an ADEA action, the district court awarded Jones approximately $24,000.00 allocable to counsel fees. On appeal, Jones alleges that the amount was insufficient because of 1) the exceptional result obtained in the litigation, 2) the purported contingency fee arrangement between Jones and his counsel, and 3) the delay in payment of the attorney’s fees. Central cross appeals, contending that the district court improperly awarded Jones attorney’s fees for the time billed for the work of an unnecessary second trial lawyer.
Awards of attorney’s fees in age discrimination actions are governed by 29 U.S.C. § 216(b) which provides: “[t]he court ... shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant ....” See 29 U.S.C. § 626(b) (rendering section 216(b) applicable to ADEA actions). A number of factors are relevant to the determination whether such an award is reasonable, the most familiar of which were discussed at length in Johnson v. Georgia Highway Express, 488 F.2d 714, 717-19 (5th Cir.1974).
In this case, the district court based its award on a “lodestar” figure consisting of the product of the time invested by Jones’ counsel and an hourly rate. Record, vol. 1, pp. 381-84. In doing so, the district court addressed each of the factors listed in Johnson and concluded that no adjustment of the lodestar amount was necessary. See id. at 381-86. We may overturn this award only for “clear abuse of discretion.” Dowdell v. City of Apopka, 698 F.2d 1181, 1187 (11th Cir.1983).
Jones first contends that the lodestar figure should have been increased because of the results obtained in the ADEA action. The district court reasoned that although counsel “achieved substantial relief for the plaintiff in this case, the court does not feel that counsel is entitled to an enhancement bonus on this factor.” Record, vol. 1, p. 385.
The Supreme Court of the United States has instructed that “[bjecause acknowledgment of the ‘results obtained’ generally will be subsumed within other factors used to calculate a reasonable fee it normally should not provide an independent basis for increasing the fee award.” Blum v. Stenson, — U.S. —, —, 104 S.Ct. 1541, 1549, 79 L.Ed.2d 891, 903 (1984). However, “in some eases of exceptional success an enhanced award may be justified.” Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40, 52 (1983); see Blum, — U.S. at —, 104 S.Ct. at 1550, 79 L.Ed.2d at 903 (quoting Hensley). We are confronted here with the question whether the result in this ease constitutes “exceptional success.”
Although the Supreme Court has not yet addressed in detail the-circumstances under which an award of attorney’s fees should be enhanced because of the result obtained, the Court noted in Blum that “where the experience and special skill of the attorney ... require the expenditure of fewer hours than counsel normally would be expected to spend on a particularly novel or complex issue” an increase may be warranted. Blum, — U.S. at —, 104 S.Ct. at 1549, 79 L.Ed.2d at 902. See also Ramos v. Lamm, 713 F.2d 546, 557 (10th Cir.1983) (“exceptional success” may be based upon extraordinary economies of time given the complexity of the task).
Other courts have articulated additional factors that may justify an enhanced attorney’s fee award such as the development of new law furthering important congressional policies, see Phillips v. Smalley Maintenance Services, Inc., 711 F.2d 1524, 1530-31 (11th Cir.1983); Johnson, 488 F.2d at 718; accord Ramos, 713 F.2d at 557, success achieved under unusually difficult circumstances, see White v. City of Richmond, 713 F.2d 458, 462 (9th Cir.1983) (near complete success achieved in face of highly unfavorable law); Ramos, 713 F.2d at 557 (“unusually difficult circumstances”), and the size of the award. See Yates v. Mobile County Personnel Board, 719 F.2d 1530, 1533 (11th Cir.1983); Wolf v. Frank, 555 F.2d 1213, 1218 (5th Cir.1977); Johnson, 488 F.2d at 718.
None of these grounds is sufficiently present in this case to compel the conclusion that the district court abused its discretion. There is no indication that the success of Jones’ attorneys was achieved with any special economics of time or under unusually difficult circumstances. Moreover, the case did not establish significant new law furthering an important congressional goal, and the $60,462.42 recovered is not such a substantial amount as to require enhancement.
In Ramos the Court of Appeals for the Tenth Circuit observed that “total victory” may constitute “exceptional success.” Ramos, 713 F.2d at 557. The main thrust of Jones’ argument appears to be based precisely on this point. According to Jones, because he prevailed on all his claims he is entitled to an enhanced award of attorney’s fees.
We decline, however, to equate “total success” with “exceptional success.” Although the Supreme Court in Hensley observed that “the extent of a plaintiff’s success is a crucial factor in determining the proper amount of an award of attorney’s fees,” Hensley, 461 U.S. at 440, 103 S.Ct. at 1943, 76 L.Ed.2d at 54, the Court has never suggested that complete victory alone requires an enhanced award. Indeed, the Court specifically distinguished “excellent” results from “exceptional” results and instructed that only the latter could justify an increased grant of attorney’s fees. Id., 461 U.S. at 435, 103 S.Ct. at 1940, 76 L.Ed.2d at 52. Winning on all claims does not seem to us to be so unusual that it must be deemed “exceptional.”
Furthermore, the Court in Hensley held that, given the vast range of success possible in a civil rights action, a decrease in the lodestar amount is not required simply because the plaintiff failed to win every contention raised in his lawsuit. Hensley, 461 U.S. at 440, 103 S.Ct. at 1943, 76 L.Ed.2d at 55. We believe the converse follows — just as losing on some claims does not necessarily mandate a decrease in the lodestar figure, neither does winning on all claims demand an increased amount. The central inquiry remains whether the expenditure of counsel’s time was reasonable in light of the overall success achieved. See id., 461 U.S. at 436, 103 S.Ct. at 1941, 76 L.Ed.2d at 52.
A contrary boilerplate rule that total victory mandates a larger award of attorney’s fees would mean that lawyers fortunate enough to attract clients with highly meritorious claims would always be entitled to increased attorney’s fees. Statutory entitlements to attorney’s fees were not designed to provide windfalls to lawyers. See, e.g., S.Rep. No. 1011, 94th CONG., 2d SESS. 6 (1976), reprinted in [1976] U.S.CODE CONG. & AD.NEWS 5908, 5913 (Civil Rights Attorney’s Fees Awards Act).
This is not to say that the totality of the success is never a relevant factor in determining whether a result is “exceptional.” We simply hold that the mere fact that a plaintiff recovered everything he sued for in the underlying litigation does not, by itself, mandate an enhanced award. In an appropriate case, the completeness of the success might be weighed along with the legal and factual hurdles, the economies of time and skill involved, the monetary award and the law created in evaluating whether a result is “exceptional.” Because the other influences are not present in this case, we conclude that the district court did not abuse its discretion in declining to enlarge the fee notwithstanding the fact that Jones recovered on all claims.
Jones next asserts that the district court erred by not considering the contingency fee arrangement he allegedly had with his counsel. The Supreme Court recently deferred a ruling on whether an upward adjustment of the attorney’s fees is authorized because of the risk of nonrecovery. See Blum, — U.S. at —, 104 S.Ct. at 1550 n. 17, 79 L.Ed.2d at 903 n. 17. It is well established in this circuit, however, that a contingency fee arrangement may justify an increase in an award of attorney’s fees. See, e.g., Hall v. Board of School Commissioners, 707 F.2d 464 (11th Cir.1983) (per curiam); Marion v. Barrier, 694 F.2d 229, 231-32 (11th Cir. 1982) (per euriam); Jones v. Diamond, 636 F.2d 1364, 1382 (5th Cir.) (en banc), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981).
To decide the issue in this case we must distinguish between two types of risks an attorney may assume in making a fee arrangement. First, an attorney may risk all entitlement to fees by entering into a conventional contingency agreement with his client. Second, although not making his entitlement to fees dependent upon the verdict or judgment, an attorney always assumes the risk that he will not be paid by his client because of indigency. If an attorney is aware, when finalizing his agreement, that his client will be unable to pay, and that the only recourse for collecting his compensation is a statute providing for fee-shifting, then for practical purposes, the attorney would have assumed the risk of nonrecovery if his client does not prevail.
The district court recognized this distinction in reasoning that “[ajlthough adequate compensation was, as a practical matter, probably contingent upon a successful result, the case was not taken on a contingent fee basis . . . . [Cjounsel is not entitled to an enhancement bonus on this factor.” Record, vol. 1, at 385. This quotation is a finding of fact that there was no contingency fee agreement between Jones and his counsel. In addition, the court evidently reasoned that, although there was a “practical risk” of nonpayment because of Jones’ indigency, this risk did not justify a fee enhancement.
We may overturn the district court’s finding of fact only if it is “clearly erroneous.” Fed.R.Civ.P. 52(a). The facts in the record reflect considerable doubt about the fee arrangement between Jones and his attorney. At an initial meeting between Jones and his attorney in February, 1981, the fee was not discussed. Record, vol. 2, p. 393-7. Later, an hourly bill was sent to Jones. When Jones expressed his inability to pay it, his attorney told him they would “cross that bridge later.” Id. at 393-9. Several months then passed during which there was no further mention of the fee. Id. at 393-9 to 393-10. Jones later authorized his lawyer to settle the case for up to $40,000.00 of which a third would be retained as attorney’s fees. Id. at 393-12. However, no settlement ever materialized. After Jones prevailed at the jury trial, he agreed that his counsel would “look exclusively to the Court for the fixing of a reasonable fee” without disturbing the jury award. Id. at 393-13.
At no point was it apparent that Jones’ counsel agreed to forego compensation for his efforts in the event the action was unsuccessful. Accordingly, we are not left with the requisite “definite and firm conviction” that the district court made a mistake in finding there was no contingency fee arrangement between Jones and his attorney.
Moreover, the district court was correct in reasoning that the “practical risk” assumed by Jones’ counsel is not a basis for enhancing a fee award. Jones argues that one purpose of fee-shifting statutes is to attract competent counsel and that compensating for the “practical risk” would encourage lawyers to take civil rights cases involving indigent clients. According to Jones, refusing to provide this compensation would have a “chilling effect” on the willingness of attorneys to take such cases.
It is true that in passing statutes supporting the entitlement to attorney’s fees, Congress intended to encourage competent counsel to take on possibly undesirable cases by providing for adequate compensation for their successful efforts. See, e.g., S.Rep. No. 1011, 94th CONG., 2d SESS. 6 (1976), reprinted in [1976] U.S. CODE CONG. & AD.NEWS 5908, 5913 (Civil Rights Attorney’s Fees Awards Act). This court has recognized that enhancement on the basis of a conventional contingency arrangement furthers this congressional purpose. See, e.g., Yates, 719 F.2d at 1534.
We do not believe, however, that Congress intended that such advocates be paid for the financial risks they assume to a greater degree than other lawyers. As we stated in Jones, compensation for risk “is neither less nor more appropriate in civil rights litigation than in personal injury cases.” Jones, 636 F.2d at 1382.
In this case, counsel for Jones seek an amount compensating them for the risk of nonpayment by a client liable for fees, a risk that is assumed without special compensation by all attorneys in all cases. A lawyer may not preserve a right of recourse against his client for fees and still expect to be compensated as if he had sacrificed completely his right to payment in the event of an unsuccessful outcome. To justify a risk premium a lawyer must agree to hold his client unaccountable for his fees if he loses the case. Because the district court found that no such agreement existed, the court did not abuse its discretion in refusing to enhance the fee award on the basis of contingency.
Jones’ last argument is that the district court abused its discretion by not awarding additional attorney’s fees to compensate for delay in payment. This court has recognized that if the hourly rate for attorney’s fees is based on historical rates, thus reflecting the reasonable attorney’s fee at the time the work was performed, an adjustment may be necessary to compensate for inflation and interest. See Johnson v. University College of the University of Alabama, 706 F.2d 1205, 1210-11 (11th Cir.), cert. denied, — U.S. —, 104 S.Ct. 489, 78 L.Ed.2d 684 (1983); Morgado v. Birmingham-Jefferson County Civil Defense Corps, 706 F.2d 1184, 1193-94 (11th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 715, 79 L.Ed.2d 178 (1984). The district court did not discuss delay, and did not state whether the hourly rate it used to compute Jones’ award was current or historical. The evidence the court could have considered in arriving at the applied rate of $85.00 per hour contains information about both current and historical rates. Under these circumstances we cannot determine whether the district court abused its discretion by failing to increase the award to account for delay.
We decline, however, to remand this case for clarification or reconsideration because we hold that Jones waived the right to seek an enhancement of attorney’s fees on the basis of delay. He failed both at the district court hearing on attorney’s fees and in his “Application for Award of Attorney’s Fees,” Record, vol. 1, pp. 291-306, to raise the issue of enhancement for delay. In reaching our conclusion we are mindful of the general rule that the “burden rests on the party seeking an attorney’s fee award to file a fee application and proffer proof going to the Johnson guidelines before the trial court.” Carr v. Blazer Financial Services, Inc., 598 F.2d 1368, 1371 (5th Cir.1979). Because Jones did not advance any argument for delay until after the district court’s order granting attorney’s fees, we decline to consider it as a basis for overturning the award. See Gates v. Collier, 616 F.2d 1268, 1278 n. 16 (5th Cir.1980) (suggesting waiver of claim for interest on award of attorney’s fees when issue not raised until after the district court made the award), modified on rehearing, 636 F.2d 942 (5th Cir.1981) (per curiam).
Finally, Central, as cross-appellant, urges that the district court abused its discretion by not reducing the award by the amount allocated for the allegedly duplica-tive work performed at trial by a second attorney for Jones. The district court considered the issue and concluded that it was not “unreasonable for the plaintiff to have been represented at trial by two experienced attorneys. The defendant was represented at the trial by house counsel and trial counsel, although house counsel did not participate actively in the litigation.” Record, vol. 1, p. 382.
A reduction in a fee “is warranted only if the attorneys are unreasonably doing the same work. An award for time spent by two or more attorneys is proper as long as it reflects the distinct contribution of each lawyer to the case and the customary practice of multiple-lawyer litigation.” Johnson, 706 F.2d at 1208 (emphasis in original); see Ward v. Kelly, 515 F.2d 908, 912 n. 11 (5th Cir.1975); Johnson, 488 F.2d at 717.
Except for the fact that both were present at trial, there is no evidence in the record suggesting that Jones’ attorneys were doing identical work. Also, there is no indication in the record, aside from the fact that only one lawyer actively participated in the trial for Central, that it was unreasonable for Jones to retain two trial attorneys. Indeed, the record reflects that the lack of opportunity for pretrial preparation by Jones’ attorney may have necessitated additional trial counsel. See Record, vol. 2, p. 393-5. At any rate, in the absence of any evidence to the contrary, we cannot conclude that the trial judge, who was in the best position to evaluate the reasonableness of the use of two trial at-in torneys by Jones, abused his discretion declining to reduce the fee.
The judgment of the district court AFFIRMED. is
. In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this court adopted as precedent all decisions of the former Fifth Circuit decided prior to October 1, 1981.
The Johnson court cited the following considerations as being relevant to the determination of the reasonableness of the award:
1) the time and labor required;
2) the novelty and difficulty of the questions;
3) the skill requisite to perform the legal service properly;
4) the preclusion of other employment by the attorney due to the acceptance of the case;
5) the customary fee;
6) whether the fee is fixed or contingent;
7) time limitations imposed by the client or the circumstances;
8) the amount involved and the results obtained;
9) the experience, reputation and ability of the attorneys;
10) the "undesirability” of the case;
11) the nature and length of the professional relationship with the client; and
12) awards in similar cases.
Johnson v. Georgia Highway Express, 488 F.2d 714, 717-19 (5th Cir.1974).
Johnson dealt with 42 U.S.C. § 2000e-5(k), which permits attorney’s fees for the prevailing party in certain Title VII actions. Its reasoning, however, has been applied to awards of attorney’s fees under 29 U.S.C. § 216(b). See, e.g., Morgado v. Birmingham-Jefferson County Civil Defense Corps, 706 F.2d 1184 (11th Cir.1983) (violation of Equal Pay Act, 29 U.S.C. § 206(d), to which section 216(b) also applies), cert. denied, -U.S.-, 104 S.Ct. 715, 79 L.Ed.2d 178 (1984). The Johnson criteria were also approved by Congress when it passed the Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988. See S.Rep. No. 1011, 94th CONG., 2d SESS. 6 (1976), reprinted in [1976] U.S.CODE CONG. & AD.NEWS 5908, 5913. In Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939 n. 7, 76 L.Ed.2d 40, 50 n. 7 (1983), a case addressing the reasonableness of an award of attorney’s fees under section 1988, the Supreme Court stated that the "standards set forth in this opinion are generally applicable in all cases in which Congress has authorized an award of [attorney’s] fees to a ‘prevailing party.’” Accordingly, our inquiry extends beyond just those cases dealing with section 216(b).
. Neither the number of hours nor the hourly rate applied is at issue in this appeal.
. Computing a "lodestar” figure first and then adjusting it in light of other considerations is a widely accepted practice. See, e.g., Blum v. Stenson, — U.S. —, —, 104 S.Ct. 1541, 1543-44, 79 L.Ed.2d 891, 895-96 (1984); Hensley v. Eckerhart, 461 U.S. 424, 433-435, 103 S.Ct. 1933, 1939-40, 76 L.Ed.2d 40, 50-51 (1983); Ursic v. Bethlehem Mines, 719 F.2d 670, 676-77 (3d Cir.1983); White v. City of Richmond, 713 F.2d 458, 460-61 (9th Cir.1983); Ramos v. Lamm, 713 F.2d 546, 552 (10th Cir.1983); Copeland v. Marshall, 641 F.2d 880, 890-91 (D.C.Cir.1980) (en banc).
. “Although the Court should consider the amount of damages, or back pay awarded, that consideration should not obviate court scrutiny of the decision’s effect on the law.” Johnson v. Georgia Highway Express, 488 F.2d 714, 718 (5th Cir.1974). The Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988, not only ”make[s] it possible for non-affluent litigants to obtain legal representation, but to reward attorneys whose service has benefited the public interest.” Dowdell v. City of Apopka, 698 F.2d 1181, 1191 (11th Cir.1983) (emphasis in original). The cost-shifting contemplated by section 1988 is "designed to induce and encourage litigation on the theory that litigants acting as ‘private attorneys general' may help to enforce important congressional policies . . . .” Id. at 1189 n. 12.
. See also Elser v. I.A.M. National Pension Fund, 579 F.Supp. 1375, 1381 (C.D.Cal.1984) (No enhancement under 29 U.S.C. § 1132(g) when the "relief obtained by [the] plaintiffs was that due them---- In order to be considered an exceptional result, it would have to be one not thought likely to be achieved.”).
. The fact that a class was benefited, rather than an individual, has been a consideration in the past in calculating an award of attorney’s fees. See, e.g., Morgado v. Birmingham-Jefferson County Civil Defense Corps, 706 F.2d 1184, 1194 (11th Cir.1983) (not abuse of discretion for district court to determine that the case was less difficult because the plaintiff was an individual rather than a class), cert. denied, — U.S. —, 104 S.Ct. 715, 79 L.Ed.2d 178 (1984); Johnson v. Georgia Highway Express, 488 F.2d 714, 718 (5th Cir.1974). This notion however, appears to have been laid to rest by the Supreme Court of the United States. See Blum v. Stenson, — U.S. —, —, 104 S.Ct. 1541, 1549 n. 16, 79 L.Ed.2d 891, 903 n. 16 (1984).
. For example, the White court increased an award of attorney’s fees for exceptional success when the plaintiff obtained injunctive relief in spite of its restricted availability under Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). The legal obstacles overcome in this case do not compare with those in White.
. Jones contends that the recovery in the ADEA litigation was actually worth over $330,000.00 because of the present value of the pension benefits and reinstatement. We recognize that “fees awarded ... [should] not be reduced because the rights involved may be nonpecuniary in nature,” S.Rep. No. 1011, 94th CONG., 2d SESS. 6 (1976), reprinted in [1976] U.S.CODE CONG. & AD.NEWS, 5908, 5913. Nonetheless, even accepting this figure, we cannot say that the district court abused its discretion by declining to enhance the award of attorney's fees.
. We express no opinion concerning the relative weight of these factors for determining "exceptional success” nor the degree to which any or all of them must be present to justify the enhancement of an attorney's fee award on the basis of the results obtained. In addition, we express no opinion about the extent, if any, to which these factors are necessarily indistinguishable from the existing Johnson criteria. We merely hold that, even if all these factors are valid considerations, the district court did not abuse its discretion in denying an enhanced attorney’s fee award on the basis of "exceptional success.”
Our opinion does not necessarily foreclose the possibility that in future cases in this circuit an increase in an award of attorney’s fees may be justified on the basis of “exceptional success” even when all claims asserted are not successful. See White v. City of Richmond, 713 F.2d 458, 461-62 (9th Cir.1983) (enhancement upheld despite minor concessions by plaintiff during settlement negotiations).
. Justice Brennan wrote separately in Blum, however, "to reaffirm ... that Congress has clearly indicated that the risk of not prevailing, and therefore the risk of not recovering any attorney’s fees, is a proper basis on which a district court may award an upward adjustment to an otherwise compensatory fee.” Blum v. Stenson, — U.S. — , —, 104 S.Ct. 1541, 1550, 79 L.Ed.2d 891, 904 (1984) (Brennan, J., concurring).
. Counsel for the appellant admitted at this point that the fee situation was "vague.” Record, vol. 2, p. 393-12.
. In addition, we note that in an effort to justify the employment of two trial attorneys, Jones' counsel stated that two lawyers were necessary in light of the fact that Jones could not afford pretrial deposition discovery. Record, vol. 2, p. 393-5. The district court may have taken this to mean that Jones' ability to pay was so significant an issue before trial that cost-cutting measures were necessary. Such concern over Jones’ ability to pay suggests that the parties expected, at least at that point, that Jones would ultimately be liable for his counsel's fees. This liability is inconsistent with a contingency fee arrangement.
. Vindication of the policy of the law depends to a significant degree on the willingness of highly skilled attorneys, such as those now before the court, to accept employment in discrimination cases on a wholly contingent basis. They will hardly be willing to do so if their potential compensation is limited to the hourly rate to which they would be entitled in noncontingent employment. Busy and successful attorneys simply could not afford to accept contingent employment if those were the rules that were applied. The enforcement of our civil rights acts would then be entrusted largely to less capable and less successful lawyers who lack sufficient employment. Such an arrangement would ill serve policies of enormous national importance.
Yates v. Mobile County Personnel Board, 719 F.2d 1530, 1534 (11th Cir.1983).
. The relevant period of delay generally runs from the time payment for legal services rendered would normally be due to the time of the receipt of the payment. In this case, however, the relevant period may be somewhat shorter because the district court awarded interest from the date of its order granting attorney’s fees to Jones. Record, vol. 1, p. 387.
. The district court’s order stated that "$85.00 per hour for time expended on the merits of the case is a reasonable fee for [Jones] in accordance with the customary hourly fee charged for this type of litigation.” Record, vol. 1, p. 384.
. The district court stated that it based its hourly rate figure on 1) the affidavit of Champs Lyons, Jr., one of Jones’ attorneys, 2) the testimony at the hearing for the application of the award of attorney’s fees, and 3) the Defendant’s Response to Post-Judgment Interrogatories. Record, vol. 1, pp. 383-84.
The affidavit was dated February 8, 1983, Record, vol. 1, p. 306, and stated that "when I handle litigated matters on a strictly hourly basis, my regular rate is $95.00 an hour . . . .” Id. at 298. The use of the present tense suggests that the rate was current.
The hearing testimony revealed that an initial bill was sent to Jones in June, 1981, reflecting a rate of $80/hour. Record, vol. 2, p. 393-8. This would represent a historical rate, applicable two years before the district court’s August 2, 1983, order granting attorney’s fees. In addition, two witnesses were asked to state their opinion on the "customary range for hourly fees charged in Mobile in Federal court litigation.” Id. at 393-41 to 393-44. The answers, apparently indicating current fee ranges, were $60.00-100.00 per hour, and $75.00-100.00 per hour. Id. at 393-42, 393-44; see also id. at 393-38 ($75.00-$100.00 per hour).
Finally, the Defendant’s Response to Post-Judgment Interrogatories replied to a question concerning “the then current hourly rate,” Record, vol. 1, p. 284, and a question asking for "the customary hourly rate,” id. at 286, by giving the same answer of $85.00 per hour. Id. at 351-52. These last answers suggest that the historical and current rates may be the same.
. In an affidavit accompanying his request for attorney’s fees, counsel for Jones reviewed the Johnson factor involving awards in other cases and stated that "reported cases, particularly older ones, should be viewed with circumspection, not only because of the impact of inflation since the date of the services, but also because they typically involve special circumstancefs] unique to the facts of the case." Record, vol. 1, p. 306. Despite the reference to inflation, this statement is insufficient to raise the delay issue.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_post_trl
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D
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What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on some post-trial procedure or motion (e.g., allocating court costs or post award relief) favor the appellant?" This doe not include attorneys' fees, but does include motions to set aside a jury verdict. 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".
In re BOWLING GREEN MILLING CO., Inc. HATTER et al. v. UNITED STATES. UNITED STATES v. HATTER et al.
Nos. 9167, 9168.
Circuit Court of Appeals, Sixth Circuit.
Dec. 1, 1942.
G. S. Milam, of Russellville, Ky., and Robert D. Willock, of Bowling Green, Ky. (G. S. Milam, of Russellville, Ky., and R. D. Willock and Rodes & Willock, all of Bowling Green, Ky., on the brief), for E. P. Hatter and others.
Leavenworth Colby, of Washington, D. C. (Eli H. Brown, III, and Malcolm P. Wallace, both of Louisville, Ky., on the brief), for United States and others.
Before ALLEN, HAMILTON and Mc-ALLISTER, Circuit Judges.
ALLEN, Circuit Judge.
This case involves a controversy over the title to wheat deposited with a milling company, now bankrupt. The bankrupt, prior to adjudication, was engaged in a general milling business in Bowling Green, Kentucky, and also operated a number of warehouses for the storage of wheat, some of which were located in other towns. The wheat in question was delivered to the bankrupt by farmers mainly during the year 1940, and in small quantities during the three previous years, in exchange for which the farmers were, in general given a so-called “white receipt,” of which the following is typical:
“7-23-40
“Received of E. P. Hatter & Son, P. O. Franklin, Ky., 31379 Lbs. 59 Lb. test wheat for six months free storage in our fireproof elevator, and we agree to pay market price at any day your wheat is offered for sale.
“Or, if left on deposit for exchange, -Lbs. of-flour per bushel.
“Due ——— Lbs. ——— flour.
“Bowling Green Milling Company,
“ by H. Y. Copeland.”
The wheat thus received was commingled according to grade.
Pursuant to the Agricultural Adjustment Act of 1938 which directed commodity loans to be made available to producers eligible thereunder (Title 7 U.S.C. § 1302(a) and (b), 7 U.S.C.A. § 1302(a, b), the Commodity Credit Corporation, an agency of the United States subject to the direction of the Secretary of Agriculture (Title 15 U.S.C. § 713 and note, 15 U.S.C.A. § 713 and note), entered into certain contracts with two banks in the vicinity which were designated as “lending agencies.” Under the contracts the banks were to make loans to farmers on the security of assignments of warehouse receipts representing wheat owned by them. While the farmers were to have the right to redeem their wheat by payment of the loans, they were not to be personally liable for such payment and the Credit Corporation agreed to indemnify the banks against loss on the loans.
In contemplation of the loan arrangements with the banks the Secretary of Agriculture, acting on behalf of the Credit Corporation, also entered into a contract with the bankrupt under which the bankrupt agreed to accept grain for storage and issue warehouse receipts in a form approved by the Secretary. Under this contract, which was referred to as the Uniform Grain Storage Agreement, the bankrupt agreed to keep all eligible grain in store in a warehouse designated in the agreement and to maintain in the warehouse a stock of grain of the class, grade and quality described in the warehouse receipts sufficient to deliver the grain described by such receipts. The bankrupt also agreed to “load out or deliver to the holder of any warehouse receipt grain of the same class, grade, quantity and quality * * * as that described by- the warehouse receipt.”
Under the arrangement, when any farmer desired to secure a government loan he surrendered the white receipts heretofore described and received in lieu thereof negotiable “blue” receipts, which identified the grain by grade, weight and ownership precisely as it was identified in the white rer ceipt and among other provisions included the following: “Said grain has been received with other- grain of like grade and of about the same time of this receipt and is deliverable to the person from whom received, or order, upon the surrender of this receipt. * * *”
At the time of bankruptcy blue receipts representing some 26,319 bushels of wheat had been issued and assigned as security for the payment of loans which were duly advanced to the farmers by the banks. In addition to the blue receipts there were white receipts outstanding which represented some 85,000 bushels on which no loans were obtained. The bankrupt had on hand, according to its records, only 82,191 bushels, leaving a shortage of approximately 30,000 bushels. After bankruptcy the Credit Corporation, under its arrangement with the banks, purchased the notes at their face value from the banks and became the holder of the blue receipts.
A committee representing the holders of the white receipts filed a petition claiming that the deposit of the wheat with the bankrupt created a bailment and therefore sought an adjudication that the holders of the white receipts were the owners of wheat equal in amount and equivalent in quality to that called for by the white receipts. The Credit Corporation filed a petition in the name of the United States, seeking to reclaim an amount of the wheat sufficient to satisfy in full the blue receipts. The Credit Corporation claimed the holders of the white receipts had sold their wheat to the bankrupt, and hence were in the position of general creditors, while the holders of the blue receipts were bailors of the wheat represented thereby and entitled to possession of an equivalent amount of wheat. It also claimed that the bankrupt had violated its Uniform Storage agreement, giving rise to a claim for damages under which the Credit Corporation has priority because its claim arises out of a debt due to the United States. Title 31 U.S.C. § 191, 31 U.S.C.A. § 191; Title 11 U.S.C. § 104(a) (5), 11 U.S.C.A. § 104, sub. a (5).
A hearing was had before a referee, who concluded that the holders of the white receipts and the holders of the blue receipts stood on an equal footing as co-owners of the wheat- in mass, and that the bankrupt had not acquired title thereto.
The District Court disagreed with the conclusions of the referee. It took judicial notice of what it termed “a universal custom prevailing in agricultural communities in the marketing of all farm produce, without exception, in both the Western and Eastern Districts of Kentucky,” that when a farmer delivers wheat to a milling company and accepts a warehouse receipt such as the white receipt, no bailment is intended and an immediate sale is consummated. It held that since blue receipts were obtained by surrender of white receipts, the holders of white receipts and the Credit Corporation were merely creditors standing on an equal footing in their claims against the bankrupt, and decided that since the Credit Corporation loaned no money to the farmers and was not a creditor of the bankrupt at the time of adjudication, under the holding in United States v. Marxen, 307 U.S. 200, 59 S.Ct. 811, 83 L.Ed. 1222, the Credit Corporation was not entitled to priority.
As this record presents no proof tending to show that the holders of either white or blue receipts sold their wheat, and such a conclusion is supported only by the asserted trade usage upon which the District Court relied, the first important question is whether the court erred in taking judicial notice of the alleged custom. Both parties agreed in the original briefs filed on appeal and in the statements of points to be relied upon that the court had erred in taking judicial notice of this alleged custom. The Government, in its main brief on appeal, stated that it denies “that such a custom ever prevailed,” but it has now changed its position on this question. We think, however, that the former agreement of counsel for all parties, acquainted with the customs of Kentucky, on this point of judicial notice is significant. A general custom need not be pleaded, and the court may take judicial notice of a custom which extends throughout the country and is recognized as part of the common law. We are unable to agree that there was sufficient uniformity or recognition of the alleged practice to which the District Court referred to entitle it to be raised to the dignity of a general custom. Considered as a local custom, its availability depended upon the existence of definite conditions which were not here shown to be present. The custom was not pleaded or relied upon in any way, nor, so far as this record shows, mentioned at the hearing. The first mention of it appears in the District Court’s opinion. But a local custom or usage may not be taken advantage of unless pleaded. Mowbray & Robinson Co. v. Kelley, 170 Ky. 271, 274, 185 S.W. 1130. Cf. Brumfield v. Consolidated Coach Corp., 240 Ky. 1, 18, 40 S.W.2d 356. A local custom must be well established, reasonable and generally known, of such age, uniformity of observance, certainty, fixedness of character and notoriety that a jury would be justified in saying that it was known to the party sought to be affected by it. Huston v. Peters, Hardin & Co., 1 Metc. 558, 58 Ky. 558. Under Kentucky law there is a strong disinclination in the courts “to allow the general laws of the country to be varied by proof of local usages. Such an usage is binding only on the ground that the party, sought to be charged, contracted with reference to it. Hence it must appear that he had actual knowledge of it, or the evidence must be such as to clearly authorize the presumption that he had knowledge of it. * * * ” Caldwell, Hunter & Co. v. Dawson, 4 Metc. 121, 61 Ky. 121. No knowledge whatever of such a usage is indicated upon the part of the farmers delivering this wheat. It is not sufficient that an act is frequently done, for a loose, variable custom or discretionary practice will not be permitted to control the rights of the parties to a contract. Aulich v. Craigmyle, 248 Ky. 676, 681, 59 S.W.2d 560.
In addition, under Kentucky law evidence of a custom or usage of trade is admissible only as a means of arriving at the intention of the parties, never to thwart or control it. Kendall v. Russell, 5 Dana 501, 35 Ky. 501, 30 Am.Dec. 696; Lillard v. Kentucky Distilleries & Warehouse Co., 6 Cir., 134 F. 168. In the instant case the blue receipts contained express statements showing that the deposit of wheat was intended as a bailment. The white receipt, while less explicit, also states plainly that there is to be a sale “at any day your wheat is offered for sale” and therefore recognizes that there will be no sale until the farmer makes an offer of his wheat. To hold that a usage exists under which an immediate sale is made of the wheat upon delivery of such a receipt, therefore, is to make use of usage to thwart and control the express intention of the parties.
Usage or custom cannot be availed of to dispense with evidence unless the fact shown thereby is certain and indisputable. “Notice, even when taken, has no other effect than to relieve one of the parties to a controversy of the burden of resorting to the usual forms of evidence. * * * 'It does not mean that the opponent is prevented from disputing the matter by evidence if he believes it disputable.’ ” Ohio Bell Telephone Co. v. Public Utilities Commission of Ohio, 301 U.S. 292, 301, 57 S.Ct. 724, 729, 81 L.Ed. 1093. Here, as there, the matter is important because in the instant case the question whether the white receipt transactions were sales or bailments was the “very point in issue.” This is another way of stating the rule that usage, to be availed of, must be well established, uniform, certain, fixed in character, and commonly known. Huston v. Peters, Hardin & Co., supra. We cannot consider, in a controversy where both parties agree that no such custom existed, and both parties assign the ruling on this point as error, that there is no doubt concerning its existence. We recognize the superior opportunity for knowledge possessed by the District Court as to the existence of local customs or usages in Kentucky, but to approve the application of the doctrine of judicial notice on the facts of the present case “would be to turn the doctrine into a pretext for dispensing with a trial.” Ohio Bell Telephone Co. v. Public Utilities Commission of Ohio, supra, at page 302 of 301 U.S., at page 729 of 57 S.Ct., 81 L.Ed. 1093. In fact the ruling would seem by application of the doctrine of judicial notice, where the alleged custom was not pleaded, to raise a controversy not presented by the record; but this, as held by the Supreme Court of the United States, cannot be done. Mountain View Mining & Milling Co. v. McFadden, 180 U.S. 533, 21 S.Ct. 488, 45 L.Ed. 656; Arkansas v. Kansas & Texas Coal Co., 183 U.S. 185, 190, 22 S.Ct. 47, 46 L.Ed. 144; Mutual Life Ins. Co. v. McGrew, 188 U.S. 291, 312, 23 S.Ct. 375, 47 L.Ed. 480, 63 L.R.A. 33.
Since the District Court erred in taking judicial notice of the alleged custom, we treat the assumption that such a custom existed as entirely-unsupported and consider the nature of the transaction as based upon the wording of the white receipt, the blue receipt, and the testimony. No substantial evidence was introduced to show that the transaction between the bankrupt and the holders of white receipts constituted a sale. The wheat was delivered, but no money passed at the time of delivery and no agreement was made by the bankrupt to pay any specific amount at any time in the future. While the white receipt is very brief and does not cover all possible elements of such a transaction, it is complete and unambiguous in the terms which are stated. It is denominated a receipt, and the only contract which it evidences is that six months free storage shall be given in the elevator for the wheat delivered and that market price will be paid on any day when the “wheat is offered for sale.” The provision for storage for such an extended period smacks not of sale, but of bailment. The agreement to pay the market price when the wheat is offered for sale contemplates a future transaction which may culminate in a sale, but does not effect a passage of title before such offer to sell is made.
The conclusion that holders of the blue receipts parted with title to the wheat is plainly erroneous, for these receipts were issued in strict compliance with the Kentucky statute (Carroll’s Kentucky Statutes, § 4786), and the blue receipt transaction clearly was a bailment.
The fact that numerous holders of the white receipts gave up these receipts for blue receipts which covered exactly the same deposit of wheat does not tend to establish that there was a sale at the time that the white receipts were delivered for if the wheat was sold and if a loan was obtained with that wheat as security, the loan should have been obtained by the bankrupt as owner, instead of by the farmers. In fact the entire underlying theory of these government loans, upon which the system of contracts was based, was that the farmers retained title to the wheat after delivery to the warehouseman.
We conclude that the transaction covered by the white receipt is a bailment and that the bankrupt rested under an implied obligation to redeliver wheat of the quality and quantity described therein to the holder of the receipt. We do not decide that the only possible disposition of this case requires the wheat to be distributed in land, for we think the bankruptcy court has ample authority to order a sale and distribution of the proceeds if it deems such procedure the most fair and equitable. Inasmuch as all holders are bailors, the entire mass of the wheat is owned in common, title never passed to the bankrupt, and the wheat or its proceeds is to be distributed to the claimants, including the Credit Corporation, on a pro rata basis. The Credit Corporation is on the same footing as the holders of white receipts. Its rights rise no higher than those of the original holders of blue receipts. Citizens’ National Bank v. W. H. Simmons & Co., 210 Ky. 683, 276 S.W. 494.
We agree with the District Court that the Credit Corporation is not entitled to priority under § 191, Title 31 U.S.C., 31 U.S.C.A. § 191, as an agency of the United States. It took over the notes and warehouse receipts and reimbursed the banks for money loaned the farmers subsequent to the instant bankruptcy. Prior thereto it had no claim against the bankrupt. The contract to redeliver wheat was made for the benefit of the holder of the receipt and could be enforced only by such holder. Prior to bankruptcy the Credit Corporation did not hold the receipt, and after making the loans, and before bankruptcy, only the banks, the then holders of the receipts, had a claim for violation of the agreement. Nor is the claim of priority strengthened by the fact that it is now asserted in the name of the United States. The rights of the creditors are fixed as of the time of the filing of the petition in bankruptcy. United States v. Marxen, supra; In re Miller, 2 Cir., 105 F.2d 926.
As the District Court erred in its conclusion that the transactions constituted sales and not bailments and as its conclusion upon that point controls the nature and extent of the relief to be afforded the various claimants, the judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
Question: Did the court's ruling on some post-trial procedure or motion (e.g., allocating court costs or post award relief) favor the appellant? This doe not include attorneys' fees, but does include motions to set aside a jury verdict.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_treat
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
UNITED STATES of America, Plaintiff-Appellee, v. John Rudolph CROOK, Defendant-Appellant.
No. 79-2559
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Nov. 27, 1979.
Rehearing and Rehearing En Banc Denied Dec. 26, 1979.
John Rudolph Crook, pro se.
J. R. Brooks, U. S. Atty., Michael V. Rasmussen, Asst. U. S. Atty., Birmingham, Ala., for plaintiff-appellee.
Before COLEMAN, FRANK M. JOHNSON, Jr., and GARZA, Circuit Judges.
Fed.R.App.P. 34(a), 5th Cir. R. 18.
PER CURIAM:
This is an appeal from the denial of a pro se petition for relief filed under 28 U.S.C. § 2255. For the reasons set forth below, we affirm the district court.
On December 18, 1978, John Rudolph Crook, the appellant, entered a plea of guilty to one count of possession of heroin with intent to distribute. 21 U.S.C. § 841(a)(1). He was sentenced to ten years’ imprisonment and ten years of special parole.
At the guilty plea proceedings, the district judge informed Crook that the maximum sentence for his offense was fifteen years or $25,000 or both, plus a special parole term of not less than three years. Crook contends that the judge violated Rule 11 of the Federal Rules of Criminal Procedure by failing to explain that there was no statutory maximum on the length of the special parole term he could impose. See Fed.R.Cr.P. 11(c)(1) (requiring judge to determine that defendant understands maximum possible penalty provided by law).
We find this contention to be without merit. In open court and after Crook was sworn, the exchange at issue was recorded as follows:
THE COURT: Do you know what the maximum sentence is under this charge?
DEFENDANT CROOK: Yes, sir.
THE COURT: What is it?
DEFENDANT CROOK: Fifteen years or 25,000.
THE COURT: Fifteen years or $25,000 or both, plus a special parole term of not less than three years, if it is your first conviction and not less than six years if you have had a prior conviction. A special parole term. Do you understand that?
DEFENDANT CROOK: Yes, sir.
THE COURT: Do you understand what that means?
DEFENDANT CROOK: Yes, sir.
There was no violation of the rule as contended.
But even assuming such a violation, Crook is not entitled to relief. Although Crook now alleges that he was unaware of the unlimited possible length of the special parole term, he does not contend that if he had been so advised he would not have pled guilty. He claims only a technical violation of the rule. It is well-established that such a claim does not justify collateral relief. United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979); Lambert v. United States, 600 F.2d 476, 477 (5th Cir. 1979) (applying Timmreck). See also Keel v. United States, 585 F.2d 110 (5th Cir. 1978) (en banc).
Crook’s other claim is that he was denied the effective assistance of counsel and that he was entitled to an evidentiary hearing in order to prove such denial.
This claim is also without merit. In this Circuit, in cases in which a guilty plea is entered, the duty of defense counsel is to make certain that the plea is entered voluntarily and knowingly. See Carbo v. United States, 581 F.2d 91, 93 (5th Cir. 1978). The record reflects that such was the case here. Crook did not make any specific factual allegations indicating otherwise, only a general statement that more thorough investigation of his case might have led his counsel to advise him to plead not guilty. Given this setting, an evidentiary hearing was not necessary. See United States v. Sanderson, 595 F.2d 1021, 1022 (5th Cir. 1979).
AFFIRMED.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
songer_genresp2
|
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 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.
BUTCHER & SHERRERD et al. v. WELSH et al.
No. 10948.
United States Court of Appeals Third Circuit.
Argued April 20, 1953.
Decided Aug. 5, 1953.
Rehearing Denied Aug. 28, 1953.
W. Wilson White, Philadelphia, Pa., (Howard H. Rapp, Philadelphia, Pa., White, Williams & Scott and Morgan, Lewis & Bockius, Philadelphia, Pa., on the brief) for petitioners.
Harry J. Alker, Jr., of Philadelphia, Pa., Edwin Hall, 2d, Philadelphia, Pa., (Francis E. Walter, Easton, Pa., on the brief) for intervenors.
Before KALODNER, STALEY and HASTIE, Circuit Judges.
KALODNER, Circuit Judge.
This is an original proceeding upon petition for writs of mandamus and prohibition to be directed to the Honorable George A. Welsh and the other Judges of the United States District Court for the Eastern District of Pennsylvania.
Petitioners are assignees of a judgment which was obtained in the District Court in the case of Federal Deposit Insurance Corp. v. Alker, Civil Action No. 3047, affirmed by this Court, 1945, 151 F.2d 907. The defendants in that proceeding are intervenors herein.
The history of this litigation stretches over a decade. Its pertinent highlights are as follows: In 1943, F.D.I.C. sued Harry J. Alker, Jr. (“Alker”) (and other nominal defendants) to recover the balance due from Alker on a loan made to him by the Integrity Trust Company (“Integrity”) on a demand collateral note. Alker’s note and collateral had been pledged with F.D.I.C. together with the other banking assets of Integrity as security for a loan by F.D.I.C. to 'Integrity, prior to the latter’s closing. F.D.I.C. in due course called in the loan, sold the collateral and sued for the resulting deficiency. Alker defended on the ground that he had an oral agreement with Integrity which provided the latter was not to disturb the loan or the collateral until security values had risen to such a point that Alker could recover his “equity” in the collateral. The case was tried in the District Court by the Honorable George A. Welsh, respondent herein, without a jury. Judgment was entered for the plaintiff against Alker in the amount of $117,-581.35 on November 8, 1944; motions for a new trial were denied; and the judgment was affirmed by this Court in November, 1945, supra, upon the authority of the Supreme Court decision in D’Oench, Duhme & Co., Inc., v. Federal Deposit Insurance Corp., 1942, 315 U.S. 447, 62 S.Ct. 676, 86 L.Ed. 956. Certiorari was denied by the Supreme Court, 327 U.S. 799, 66 S.Ct. 901, 90 L.Ed. 1025. Two petitions for rehearing were denied, 328 U.S. 877, 66 S. Ct. 976, 90 L.Ed. 1645, and 328 U.S. 879, 66 S.Ct. 1117, 90 L.Ed. 1647. Motions for leave to file petitions for rehearing were thrice denied. 328 U.S. 881, 66 S.Ct. 1361, 90 L.Ed. 1648, Id., 329 U.S. 823, 67 S.Ct. 28, 91 L.Ed. 699, and 329 U.S. 830, 67 S.Ct. 350, 91 L.Ed. 704. The mandate of affirmance was finally returned to the District Court on October 24, 1946.
Following return of the mandate affirming the judgment of the District Court, defendants filed with Judge Welsh a motion for new trial on the ground of after-discovered evidence, and, inasmuch as the judgment had been affirmed by this Court, a petition was filed here in the nature of a bill of review, seeking leave to the District Court to consider the motion. After hearing, this petition was denied, 3 Cir., 1947, 163 F.2d 123. A petition for rehearing was then filed alleging further after-discovered evidence, which petition was again denied, 3 Cir., 1947, 164 F.2d 469. The Supreme Court denied certiorari, 334 U.S. 827, 68 S.Ct. 1337, 92 L.Ed. 1755, and a petition for rehearing, 334 U.S. 862, 68 S.Ct. 1527, 92 L.Ed. 1782. Motions for leave to file petitions for rehearing were thrice denied; 335 U.S. 838, 69 S.Ct. 14, 93 L.Ed. 390, Id., 335 U.S. 864, 69 S.Ct. 123, 93 L.Ed. 409, Id., 335 U.S. 894, 69 S.Ct. 242, 93 L.Ed. 431. The defendants then once again petitioned this Court for rehearing, and for a stay in the handing-down of our mandate. This petition was denied, 3 Cir., 1948, 169 F.2d 336. Pursuant to denial of certiorari by the Supreme Court, 336 U.S. 953, 69 S.Ct. 880, 93 L.Ed. 1108, the mandate denying leave to the District Court to hear the motion for new trial was returned to that court on July 30, 1948.
Shortly thereafter, on August 25, 1948, defendants filed a “renewal” of motion for a new trial in the District Court. This motion was first granted by the court below, and then denied; and appeal was taken by the defendants from the denial. We affirmed the District Court’s denial, Secretary of Banking of Pa. v. Alker, 3 Cir., 1950, 183 F.2d 429, certiorari denied, Du Ban v. Federal Deposit Ins. Corp., 340 U.S. 917, 71 S.Ct. 351, 95 L.Ed. 663, rehearing denied, 340 U.S. 939, 71 S.Ct. 489, 95 L.Ed. 678. Thus, a third mandate of this Court affirming the judgment against the defendants was returned to the District Court on September 7, 1950.
Some nineteen months later, on April 24, 1952, defendants, without further application to this Court, filed another motion for a new trial with Judge Welsh. On December 2, 1952, Judge Welsh entered an Order granting a new trial. 'In an opinion accompanying his Order he stated that he did so in order to afford the defendants the opportunity of “presenting evidence hitherto unavailable of certain phases of the case which might alter the whole, picture as now presented.”
Petitioners immediately made application here for writs of mandamus and prohibition, alleging that Judge Welsh, acted beyond his jurisdiction and in direct disobedience of the prior mandates of this Court. The petition prays that the Order ox December 2, 1952, be vacated, and that the. several Judges of the District Court he prohibited from proceeding with a new trial of the cause. In his answer Judge Welsh states that lie granted a new trial in the belief that jurisdiction to do so was conferred upon him by virtue of Rule 60 (b), as amended, of the Federal Rules of Civil Procedure, 28 U.S.C.
Wc are of the opinion that this case is a proper one for the issuance of the writs prayed for.
It is true that ordinarily mandamus may not be resorted to as a mode of review where a statutory method of appeal has been prescribed; Pennsylvania R. Co. v. Kirkpatrick, 3 Cir., 1953, 203 F.2d 149. In Roche v. Evaporated Milk Ass’n, 1943, 319 U.S. 21, 63 S.Ct. 938, 941, 87 L.Ed. 1185, it was held: “The traditional use oí the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to- compel it to exercise its authority when it is its duty to do so.” (Emphasis supplied.) See also Ex parte Republic of Peru, 1943, 318 U.S. 578, 63 S.Ct. 793, 87 L.Ed. 1014; Ex parte Kawato, 1942, 317 U.S. 69, 63 S.Ct. 115, 87 L.Ed. 58; McCullough v. Cosgrave, 1940, 309 U.S. 634, 60 S.Ct. 703, 84 L.Ed. 992; Interstate Commerce Commission v. United States ex rel. Campbell, 1933, 289 U.S. 385, 53 S.Ct. 607, 77 L.Ed. 1273; Ex parte United States, 1932, 287 U.S. 241, 53 S.Ct. 129, 77 L.Ed. 283; State of Colorado v. Symes, 1932, 286 U.S. 510, 52 S.Ct. 635, 76 L.Ed. 1253; State of Maryland v. Soper, No. 1, 1926, 270 U.S. 9, 46 S.Ct. 185, 70 L.Ed. 449; State of Maryland v. Soper, No. 2, 1926, 270 U.S. 36, 46 S.Ct. 192, 70 L.Ed. 459; State of Maryland v. Soper, No. 3, 1926, 270 U.S. 44, 46 S.Ct. 194, 70 L.Ed. 462.
Inasmuch as the action of the District Court in granting a new trial was clearly beyond its jurisdiction the above stated principle is applicable here. Where a judgment has been affirmed on appeal and the mandate handed down it is beyond the power of the lower court to disturb the judgment without leave of the appellate court. This procedure is required by long-settled principles. Simmons Co. v. Grier Bros. Co., 1922, 258 U.S. 82, 42 S.Ct. 196, 66 L.Ed. 475; National Brake & Electric Co. v. Christensen, 1921, 254 U.S. 425, 41 S.Ct. 154, 65 L.Ed. 341; In re Potts, 1897, 166 U.S. 263, 17 S.Ct. 520, 41 L.Ed. 994; Brady v. Beams, 10 Cir., 1943, 132 F.2d 985; Simonds v. Norwich Union Indemnity Co., 8 Cir., 1934, 73 F.2d 412. In the instant case not one, but three, mandates of this court were returned to the District Court. Under the circumstances, we are not required to pass upon the validity of the intervenors’ reasons for asking a new trial, or of respondent’s reasons for granting it. Indeed, mandamus could not issue merely because we disagreed with the District Judge as to the correctness of his ruling. What is here involved is an utter lack of jurisdiction to act. And where the 'lower court is without jurisdiction to vacate a judgment, mandamus is the appropriate remedy. Delaware, Lackawanna & Western Railroad Co. v. Rellstab, 1928, 276 U.S. 1, 48 S.Ct. 203, 72 L.Ed. 439.
Respondent contends that recent amendments to Rule 60 (b) of the Federal Rules of Civil Procedure confer upon the trial court the power to grant relief from the operation of a judgment without prior approval of the appellate court. We cannot subscribe to this contention. Rule 60 (b), while enlarging the power of the District Courts over judgments without respect to the running of the term of court, does not confer upon District Courts the power to alter or amend a judgment which has been affirmed by this court or the Supreme Court, for such alteration would affect the decision of the reviewing court, which it is not within the power of the District Courts to do. Home Indemnity Co. of New York v. O’Brien, 6 Cir., 1940, 112 F.2d 387. Further, we have already had occasion to hold that the 1948 amendments to the Rule, relied upon by respondent, did not change its effect in this respect. Carpenter v. Rohm & Haas Co., Inc., 3 Cir., 1950, 180 F.2d 749.
For the reasons stated, the rule to show cause why writs of mandamus and prohibition should not issue is made absolute. Accordingly, writs will issue to the Honorable George A. Welsh and the other Judges of the United States District Court for the Eastern District of Pennsylvania : (a) directing him and them to vacate the Order of Judge Welsh dated December 2, 1952, in Civil Action No. 3047, purporting to grant a new trial; and (b) prohibiting him and them from proceeding with a new trial in said litigation.
. Simultaneously with the filing in the Dis-Court of the motion “for renewal of motion for a new trial” the defendants filed a petition with this Court for reconsideration of our prior denial of their petition in the nature of a bill of review seeking leave to the District Court to consider their motion for a new trial. 1947, l63 F.2d 123. The petition for reconsideration was dismissed in an order entered by this Court on October 27, 1948.
. Rule 00(b) of the Federal Pules of Civil Procedure provides in part:
“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: * * * (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.”
. In re Standard Gas & Electric Co., D.C. Del.1945, 63 F.Supp. 876, cited by the intervenors, is not applicable here, for what was there modified by the District Court after appeal was merely an interlocutory decree, and not a final judgment.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_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.
Theodore H. CASE, Individually and as Co-Executor of the Estate of Natalie C. Case, Deceased, Hart B. Morrison and Margaret M. Morrison, Plaintiffs-Ap-pellees, Cross-Appellants, v. UNITED STATES of America, Defendant-Appellant, Cross-Appellee.
Nos. 78-3330 to 78-3333.
United States Court of Appeals, Sixth Circuit.
Argued June 18, 1980.
Decided Oct. 30, 1980.
Rehearing Denied Dec. 5, 1980.
James R. Williams, U. S. Atty., James C. Lynch, Asst. U. S. Atty., Cleveland, Ohio, David J. Curtin, M. Carr Ferguson, Gilbert Andrews, Mike Paup, Gilbert S. Rothen-berg, Tax Div., Appellate Section Dept, of Justice, Washington, D. C., for defendant-appellant, cross-appellee.
Paul A. Weick, Weick & Gibson Co., L. P. A., Cuyahoga Falls, Ohio, for plaintiffs-ap-pellees, cross-appellants in Nos. 78-3330 and 78-3331.
John Kennedy Lynch, Cleveland, Ohio, for plaintiffs-appellees, cross-appellants in Nos. 78-3332 and 78-3333.
Before ENGEL, KEITH, and BOYCE F. MARTIN, Jr., Circuit Judges.
BOYCE F. MARTIN, Jr., Circuit Judge.
This controversy involves two taxpayers’ suits for refunds of federal income tax paid for the year 1970. Both the United States and the taxpayers have brought appeals from the judgment of the District Court.
We must determine whether gains realized from the disposition of certain real estate should be characterized as long-term capital gain, short-term capital gain, or ordinary income.
I. The Facts
On June 1, 1969, taxpayers Morrison and Case formed a partnership. Their purpose was the acquisition of real estate near Geneva, Ohio, in an area adjacent to Lake Erie and Geneva State Park. Long-range plans included transfer of the properties purchased to a corporation, which the taxpayers would form to develop and sell residential units and a recreational complex. An alternate possibility was resale of the properties in bulk to another, larger developer. Taxpayer Morrison had many years experience marketing real estate in Ohio; taxpayer Case was president of the local telephone company and well-qualified to handle arrangements for bringing utilities to the proposed project.
The partnership’s first purchase was a 3.8 acre tract located on the shore of Lake Erie near the Geneva State Park boundary. “The Behner property” contained about a dozen summer cottages. By declaration of trust dated June 27, 1969 and a warranty deed of June 30, 1969, Herbert and Nona Behner conveyed the property to the Northeastern Ohio National Bank as trustee for beneficiaries Morrison and Case and their wives. The price was $72,800, which the conveyors received from the bank.
The second acquisition was the “Johnson property,” an 8.2 acre tract containing several cottages and a few permanent homes. It was located west of the Behner property. On February 16, 1970, Morrison and Case contracted to purchase the property from George and Catherine Johnson for a price of $150,000. The taxpayers made a $2,000 down payment and agreed to pay an additional $18,000 on or before July 15, 1970. The balance of $130,000 was due on or before January 15, 1971. The contract provided 1) that title would not be transferred until the purchase price was paid in full; 2) that the taxpayers would obtain possession sixty days after the transfer of title; 3) that in lieu of interest on the deferred payments, the Johnsons would receive all rents and profits from the property until passage of title; and 4) that taxes, assessments and insurance would be prorated between the parties as of the date of transfer.
On March 15, 1970, the taxpayers acquired a third tract from Jack and Inez Nightwine. The Nightwine property adjoined the Johnson property and also contained summer cottages. The partnership obtained, for $64,456.95, the Nightwines’ rights under a 1969 purchase contract. Toward that sum, the taxpayers paid $500 on July 20, 1970 and $15,500 on October 15, 1970. They received immediate possession and assumed responsibility for all taxes and assessments.
Morrison, acting individually, contracted to purchase a fourth parcel of land on January 15, 1970. The 162-acre tract had been owned since 1965 by the “B’tawn Beach Club” partnership, consisting of taxpayer Case and his three brothers. Case did not participate in Morrison’s purchase of the B’tawn property, apparently because he wished to avoid a conflict of interest.
The B’tawn contract provided for a total price of $425,000, to be allocated among a $10,000 down payment, a payment of $290,-000 due on or before December 1, 1970 and a final payment of $125,000 to be made on or before December 31, 1970. Morrison did not, however, adhere to these terms. Instead, upon execution of the contract, he gave the B’tawn partnership a promissory note for $10,000; he did not make payment on the note until November 23, 1970. The B’tawn contract provisions governing deferred passage of title and possession were very similar to those contained in the Johnson contract.
The record indicates that the taxpayers attempted to acquire other property contiguous with the four tracts described above. Mr. Case testified, “you can’t sell to some development company in New York and Chicago and have little spots here and little spots there that are missing.” At the same time, however, the taxpayers explored the possibility of developing the property themselves; tentative plans called for the formation of a corporation to be financed by outside investors. Toward this end, they engaged an artist to prepare preliminary sketches of the proposed “Shoreland Acres,” consulted an engineer, and opened negotiations with utility companies for the provision of services to the project.
On September 22, 1970, the State of Ohio announced that the United States Department of the Interior had approved expenditures of up to $1.5 million for the expansion of nearby Geneva State Park. Shortly thereafter, the taxpayers received notice of the State’s intention to acquire the Behner, Johnson, Nightwine, and B’tawn tracts. We outline, briefly, the transactions which followed this notice of condemnation.
On November 27, 1970, the taxpayers instructed the Northeastern Ohio National Bank, as trustee, to grant the State of Ohio a thirty-day option to purchase the Behner property for $175,000. The State exercised this option and on December 7, 1970, the bank transferred title to the State. On December 29, 1970, the State issued a warrant to the bank in the amount of $175,000. The bank discharged the deed of trust on the property and paid the remainder of the $175,000 to the taxpayers.
On November 27, 1970, the taxpayers granted the State a similar option to purchase the Johnson property for $334,000. The State exercised this option on the date it was granted. On December 7, 1970, the Johnsons deeded the property to the taxpayers, who, in turn, transferred title to the State on December 11, 1970. Upon receipt of $334,000 from the State, the taxpayers paid the Johnsons the approximately $110,-000 still owning on the original purchase agreement.
Also on November 27,1970, the taxpayers granted the State an option to purchase the Nightwine property for $139,000. This sale was completed on December 11, 1970, whereupon the taxpayers paid the Night-wines the remaining balance due of $48,-457.
Morrison handled the sale of the B’tawn property in a somewhat different fashion. On December 4, 1970, the B’tawn Beach Club partnership conveyed title of the property to Howard Nazor as trustee for Morrison. Nazor was instructed not to convey title to Morrison until the latter paid the balance of $415,000 due on the original $425,000 price. The deed of trust was recorded December 11, 1970. On December 16, 1970, Nazor, as trustee for Morrison, granted an option to the State to purchase the B’tawn tract for $565,000. On December 17, before the B’tawn Beach Club partnership had received further payment from Morrison, Nazor conveyed both legal and equitable title to the state of Ohio. On December 29, 1970, the State issued a warrant for $565,000 to Nazor, who proceeded to pay the B’tawn Beach Club partnership the balance due on the original contract. He then distributed the remainder to Morrison.
The following chart summarizes the important points in the taxpayers’ real estate transactions:
II. The Controversy
In their respective income tax returns for 1970, Morrison and Case reported the gains realized from the sales of their properties as long-term capital gains. In the course of an audit, the Internal Revenue Service decided that the gains should have been reported as ordinary income. Accordingly, the Service assessed tax deficiencies against Morrison in the amount of $93,094.62 plus interest, and against Case in the amount of $53,080.56 plus interest. Each taxpayer paid his deficiency in full and filed a timely claim for refund. The Service denied both claims and Morrison and Case initiated separate actions in District Court.
Before the two suits were consolidated the United States filed a motion for partial summary judgment against Morrison. It contended that he had held, for tax purposes, the Johnson and B’tawn properties for less than six months; even if he were entitled to report his gains on the sale of these tracts as capital gains, those gains would be taxable on a short-term rather than a long-term basis. In support of its motion, the United States pointed out that Morrison’s tax liability under a short-term capital gain theory would be identical to his liability if the gains were characterized as ordinary income.
The District Court concluded that Morrison had, in fact, held the Johnson property for less than six months; to that extent, it granted the government’s motion for summary judgment. Morrison v. United States, 449 F.Supp. 654 (N.D.Ohio 1977). The Court declined to rule on the appropriate treatment of Morrison’s gain from the sale of the B’tawn property until it heard further evidence.
After trial, for which Morrison’s and Case’s suits were consolidated, the District Court ruled that the taxpayers’ sales of all four tracts generated capital gain and not ordinary income. Morrison v. United States, 449 F.Supp. 663 (N.D.Ohio 1977). The Court’s reasoning can be summarized as follows: on September 22, 1970, when Morrison and Case received formal notice of the state’s intention to acquire their properties, the taxpayers held their real estate for sale in the ordinary course of business; at the time of the actual sales to the state, however, the taxpayers held the properties for investment purposes and therefore realized gain on the disposition of capital assets.
In its discussion of the six-month holding period required for long-term capital gain taxation, the Court ruled that Case’s gain on the sale of the Johnson tract and Morrison’s gain on the sale of the B’tawn property failed to qualify as “long-term” and were, therefore, subject to “short-term” tax treatment. According to the Court, the taxpayers neither assumed the burdens nor enjoyed the benefits of ownership of these two properties until they actually obtained title to them. As noted above, this event did not take place until a few days before title was conveyed to the State.
The government did not contest that the taxpayers had held the Behner and Night-wine tracts for more than six months. Accordingly, the Court found that the gain realized on the sale of these properties was long-term capital gain and that the taxpayers were entitled to a partial refund.
We believe that the District Court achieved the correct result insofar as it determined the amount of tax Morrison and Case ultimately had to pay. However, we have profound misgivings about the rationale underlying the decision below.
III. The Issue on Appeal
On appeal, the government contends that the taxpayers held their properties “for sale to customers in the ordinary course of business.” If this position is correct, the taxpayers should have reported their gain from the disposition of the properties as ordinary income.
Section 1202 of the Internal Revenue Code (26 U.S.C.) provides preferential tax treatment for long-term capital gain. During the tax year 1970, Section 1222(3) defined long-term capital gain as gain derived from the sale of a “capital asset” held for more than six months. Section 1221(1) offers a negative definition of “capital asset”: it is property which does not fall within certain enumerated categories, among them “property held by the taxpayer primarily for sale to customers in the ordinary course of his trade of business.”
The taxpayers, of course, maintain that none of the exceptions set out in Section 1221(1)- apply to the four tracts of real estate described earlier. If they are correct, then their properties were, by definition, capital assets. Furthermore, argue the taxpayers, for purposes of federal taxation, they “held” all four properties for more than six months and were therefore entitled to report their gains as long-term capital gains.
In our review, we adhere to the rule that the preferential capital gains provisions in the tax code are to be narrowly construed. Corn Products v. Commissioner, 350 U.S. 46, 52, 76 S.Ct. 20, 24, 100 L.Ed. 29 (1955); Omer v. United States, 329 F.2d 393, 395 (6th Cir. 1964). In consequence, the taxpayers must overcome a heavy burden of proof in order to prevail.
IV. The Standard of Judicial Review
The government contends that we need not confine ourselves to a “clearly erroneous” standard of review in this case. In support of its position, it cites Third, Fourth, and Fifth Circuit decisions which indicate that the determination of whether the taxpayers held their properties “for sale in the ordinary course of business” is one of law, or “ultimate fact.” Jersey Land and Development Corp. v. United States, 539 F.2d 311, 315 (3rd Cir. 1976); Turner v. Commissioner, 540 F.2d 1249, 1252 (4th Cir. 1976); Biedenharn Realty Co. v. United States, 526 F.2d 409, 416 (5th Cir. 1976). This characterization of the issue, in effect, permits an appellate court to re-examine the evidence without giving customary deference to the original findings of the trial court.
The authorities cited by the government are undoubtedly well-reasoned; however, we are resolved to adhere to the principles expressed in Philhall v. United States, 546 F.2d 210, 214 (6th Cir. 1976), and, most recently, in Gartrell v. United States, 619 F.2d 1150 (6th Cir. 1980). We held in those cases that the determination of whether property is held “primarily for sale” depends entirely upon judicial ascertainment of the taxpayer’s intent. It is, therefore, an ordinary issue of fact, subject to reversal on appeal only if we believe the District Court’s findings were “clearly erroneous.”
V. Review of Authorities
The District Court found: 1) that the taxpayers held their properties primarily for sale to customers in the ordinary course of business; 2) that the threat of condemnation changed this purpose; but 3) that the taxpayers held the Johnson and B’tawn tracts for an insufficient period of time to qualify for long-term capital gains treatment.
The taxpayers maintain: 1) that there was no evidence to support the District Court’s first finding; 2) that the threat of condemnation confirmed the “capital” nature of their gains from sale of the properties; and 3) that they held the Johnson and B’tawn tracts for more than six months. They offer several arguments in support of the third assertion: first, that Ohio law of equitable conversion substantiates their claim to a sufficient holding period; second, that they obtained the “benefits and burdens of ownership” more than six months prior to the state’s purchases; and third, that the purchase contracts gave them “options” within the meaning of Section 1234(a) of the Code.
A. The purpose for which the taxpayers held their properties.
In Matthews v. Commissioner, 315 F.2d 101, 107 (6th Cir. 1963), we enumerated eight factors to consider .in deciding whether property is held “primarily for sale.” They are: 1) the purpose for which the property was acquired; 2) the purpose for which the property was held; 3) the extent of improvements made to the property; 4) the frequency, number, and continuity of sales; 5) the nature and substantiality of the transactions; 6) the nature and extent of the taxpayer’s dealings in similar property; 7) the extent of advertising to promote sales; and 8) whether or not the property was listed for sale either directly or through brokers. See also Broughton v. Commissioner, 333 F.2d 492, 495 (6th Cir. 1964); Gartrell v. United States, supra at 1155-56.
In this case, the taxpayers testified that they acquired the properties in order to “hold ... and develop” them. As we have already noted, they hoped to transfer the properties to a corporation, to be financed and fifty percent owned by two outside investors. The government, in its argument, emphasizes repeatedly that this plan to transfer the real estate to a corporation at costs negates any investment motive on the taxpayers’ part. This interpretation ignores that aspect of the proposed transfer which represents, quite simply, sound tax planning. Transfer of the properties at cost instead of at an appreciated figure would have the effect of postponing recognition of a taxable gain. That the taxpayers intended to use this legitimate means of avoiding an imminent tax scarcely obviates the possibility that they did, in fact, regard their properties as an investment.
Furthermore, the taxpayers did not make improvements to any of the properties; they merely maintained them in their existing condition. The properties were neither advertised nor listed for sale, and no sales in fact occurred until the state issued its condemnation notices.
The District Court was impressed with Morrison’s considerable experience in marketing Ohio real estate; it apparently inferred from his background that he was holding these particular properties primarily for sale. The government introduced no evidence whatsoever to support such a finding-a significant omission, since the Code specifically contemplates that dealers may segregate certain transactions in property similar to their stock in trade in order to qualify for capital gains tax treatment. 26 U.S.C. § 1236(a). Buono v. Commissioner, 74 T.C. No. 15, 1980 Tax Ct.Rep., Dec. 36,-925; Boykin v. Commissioner, 344 F.2d 889, 894 n. 8 (5th Cir. 1975).
In light of tne foregoing observations, we are constrained to hold that there was insufficient evidence to support the District Court’s conclusion that the taxpayers’ properties were held “primarily for sale.” Cf. Appeal of Bush, 610 F.2d 426 (6th Cir. 1979).
B. The effect of the threat of condemnation.
The District Court found that the taxpayers changed their purpose in holding the properties; under threat of condemnation, they became investors holding capital assets. The .Court based its decision on Ridgewood Land Co., Inc. v. Commissioner, 477 F.2d 135 (5th Cir. 1973); Commissioner v. Tri-S Corp., 400 F.2d 862 (10th Cir. 1968); and a Tax Court case, later reversed as Juleo, Inc. v. Commissioner, 483 F.2d 47 (3rd Cir. 1973).
Our reversal of the District Court’s ruling that the taxpayers initially held their property “primarily for sale” eliminates the need to consider the effect of the condemnation notice on these particular litigants. In view of the approach taken below, however, we wish to clarify our position on the legal issue lest this case engender confusion in future cases before the courts of this Circuit.
We agree with the Third Circuit’s rationale for reversing the Tax Court in Juleo, Inc., supra; as a corollary, we reject the suggestion that, for federal tax purposes, mere receipt of a condemnation notice automatically transforms property held “primarily for sale” into investment property. As the government notes in its brief, any property owner who receives a notice of condemnation presumably abandons whatever plans he originally entertained in favor of a new, albeit temporary, reason for holding the condemned property. Common sense application of established tax principles mitigates against giving this circumstance conclusive effect. Except as specifically provided by statute, cf. 26 U.S.C. § 1033, we decline to determine the tax consequences of a sale solely on the strength of a finding that the sale was involuntary.
Ordinarily, the characterization of an asset as “capital” or “non-capital” requires an analysis of several factors; the preceding section of this opinion illustrates just such an exercise. The addition of a condemnation notice to this calculus merely injects one more element to be considered; it does not eliminate the calculus altogether.
C. Whether the taxpayers held the B’tawn and Johnson properties for the six-month period prerequisite to preferential long-term capital gain treatment.
On appeal, the taxpayers argue that the District Court erred in concluding that gains realized on the sale of the B’tawn and Johnson properties were ineligible for taxation at the long-term capital gain rate.
They argue, first, that Ohio law of equitable conversion substantiates their claim to a sufficient holding period. Generally speaking, “State law determines what property rights and interests a taxpayer has, but federal law determines the consequences of such rights and interests for tax purposes.” Coin am v. Commissioner, 263 F.2d 119 (5th Cir. 1959).
The state law argument can be summarized as follows: in Ohio, the principle of equitable conversion invested the taxpayers with an equitable interest in the two properties. We are asked to treat this equitable interest as a capital asset which, when sold, yielded capital gains. The taxpayers assert that they obtained this equitable interest at the time they signed the purchase contracts for the two tracts, more than six months prior to disposition of the properties.
This argument is undoubtedly ingenious; however, Ohio case law does not support its application to the present facts. We quote from Sanford v. Breidenbach, 111 Ohio App. 474, 173 N.E.2d 702 (1960): “Equitable conversion does become effective in those cases in which the vendor has fulfilled all conditions and is entitled to enforce specific performance, and the parties, by their contract, intend that title shall pass upon the signing of the contract of purchase.” (Emphasis added.)
The B’tawn and Johnson contracts, described in Part I of this opinion, clearly intended no such result; on the contrary, the sellers specifically reserved title to the property until they received payment in full. Since payment took place only days before disposition of the properties, the taxpayers’ reliance on the principle of equitable conversion is misplaced.
In the alternative, the taxpayers advance the “practical” test announced by this Court in Commissioner v. Baertschi, 412 F.2d 494 (6th Cir. 1969); and Dettmers v. Commissioner, 430 F.2d 1019 (6th Cir. 1970). In those cases we held that “ownership of real property is acquired either upon delivery ... of the deed or upon transfer of the benefits and burdens of ownership, whichever occurs first.” Dettmers, supra at 1023. The taxpayers point to the fact that they maintained the properties and, in the case of the Johnson tract, applied rental income to offset the interest owed the Johnsons; from this, they ask us to infer “benefits and burdens of ownership” of a character sufficient to sustain a favorable ruling. Again, however, the purchase contracts are clear. Virtually all the “benefits and burdens of ownership” remained in the vendors until the purchase price was fully paid.
Finally, the taxpayers contend that the purchase contracts created options to buy. 26 U.S.C. § 1234(a) accords gains or losses from “privileges ■ or options to buy” the same tax treatment as the property subject to those options. Inasmuch as the properties themselves would have been capital assets in the taxpayers hands, they urge us to treat these “options” as we would treat the underlying properties. The “options” the taxpayers claim to possess would, of course, date back to the signing of the purchase contracts.
Our review of the meaning of an “option” for purposes of Section 1234 convinces us that the taxpayers did not, in fact, possess “options” within the meaning of the statute. What they did possess were bilateral contract rights, to which Section 1234 does not, by its terms, apply. In a scholarly analysis of this issue, the Court of Claims examined the language, legislative history, and Revenue Rulings pertinent to Section 1234; it concluded that an “option” is, for purposes of the statute, a very narrow concept. United States Freight Co. v. United States, 422 F.2d 887, 894-5, 190 Ct.Cl. 725 (1970). We agree, and affirm the District Court’s decision against the taxpayers’ claim to a six-month holding period.
VI. Conclusion
As we have already noted, this opinion modifies the rationale but not the actual result of the trial court’s decision. The District Court’s order directing the government to issue the taxpayers a partial refund of federal income taxes, is therefore, affirmed.
. The District Court’s approach is logically inconsistent with the treatment the tax laws accord judicially enforceable payments in general, and condemnation proceeds in particular. Thus, amounts received in settlement of a claim for lost profits are taxable as the profits would have been taxed, as ordinary income. Raytheon Production Corp. v. Commissioner, 144 F.2d 110 (1st Cir.), cert. denied, 323 U.S. 779, 65 S.Ct. 192, 89 L.Ed. 622 (1944). If the claim is for damage to a capital asset, the amount received in settlement is treated as a return of capital, taxable at capital gain rates if the recovery exceeds the asset’s basis. Farmers & Merchants Bank v. Commissioner, 59 F.2d 912 (6th Cir. 1932).
With respect to condemnation proceeds, the Code envisions the possibility of ordinary income treatment of gain realized on condemnation of inventory. Section 1231(a) provides in part for capital gain treatment of gains recognized upon condemnation of “property used in the trade or business.” Section 1231(b)(1)(B), which defines such property, however, provides as well that real estate which is held primarily for sale cannot qualify for capital gain under Section 1231.
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:
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songer_respond1_7_2
|
C
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
HEINER, Collector of Internal Revenue, v. HEWES.
Circuit Court of Appeals, Third Circuit.
February 14, 1929.
No. 3823.
John D. Meyer, U. S. Atty., W. J. Aiken, Asst. U. S. Atty., and John A. McCann, all of Pittsburgh, Pa., and C. M. Charest and William E. Davis, both of Washington, D. C., for appellant.
Gunnison, Fish, Gifford & Chapin and Orsin J. Graham, all of Erie, Pa., for appellee.
Before BUFFINGTON and WOOLLEY, Circuit Judges, and McVICAR, District Judge.
WOOLLEY, Circuit Judge.
The Commissioner of Internal Revenue assessed additional income taxes for tho year 1918 against Charles P. Hewes based upon a taxable gain in the sale of a single tract of land. On appeal the Board of Tax Appeals redetermined the tax. After paying the tax under protest, followed denial of a claim for refund, Hewes brought this suit to recover the amount paid, with interest. Tho case was tried to the court without a jury on a stipulation of facts framed and submitted in the nature of a case stated. The plaintiff had a judgment and the defendant appealed. The sole question involved, as stated by the appellant, is: What was the amount of taxable gain derived from the sale in 1918 of tho land in question 1 There being admittedly a taxable gain, we think the true question involved is: By what rule should the taxable gain in such ease be determined?
Given in barest outline, the facts are these: A narrow strip of land extended from street to street midway a block in a busy section of the City of Erie, Pennsylvania. It was used by owners of adjoining lands and by tho public as well. In 1896 the city assessed against the property a tax for its share of the cost of paving one of the abutting streets for which, later, the property was sold. It was purchased by F. B. Greene, president of the paving company, individually but in trust for the company. In tho same year Greene sold and by deed conveyed the property to Hewes, the plaintiff, for $1.00 and his mortgage for $800 secured by and restricted to the land in question, the mortgage to be “canceled” should the title fail. In 1900 Hewes sued the owners of the adjoining properties for trespass but took a voluntary nonsuit. Later, he endeavored to enlist Greene in another title litigation which he had instituted, but failing in that, Greene, after negotiations ending in 1915, satisfied the $800 mortgage and accepted from the plaintiff $500 “in full settlement and payment of the purchase money due from the said Charles P. Hewes on conveyance of the property” in 1896.
In 1912 Hewes brought an action of ejectment in a Pennsylvania state' court against the owners of the adjoining lands. While that suit was pending he offered the land to the defendants for $6,500. The offer being refused, he proceeded until, in 1915, he obtained a 'judgment which was affirmed by the Supreme Court of Pennsylvania. Hewes v. Miller, 254 Pa. 57, 98 A. 776; Stearns Co. v. Hewes, 256 Pa. 577, 100 A. 1054. After an action of trespass against the abutting owners and recovery of mesne profits, the plaintiff in 1918 sold the property for $33,-230, which, together with the mesne profits recovered, he included in his tax return for that year but from which he deducted $28,-000 as the value of the property at the critical period in 1913. Apropos that figure it is stipulated in this suit that the fair market price or value of the tract “in the hands of an owner able to convey a complete title with exclusive right of possession to it on March 1,1913, was not less than $28,000.”
On this state of facts three rules have been applied to determine the taxable gain arising from the sale based on correspondingly varying values on Mareh 1, 1913:
The Commissioner determined the value of the property as of that date at $6,500 on the principle that that amount, being the^um for which the plaintiff, after 1913, offered to sell the land to the defendants in the eject- ' ment suit, was the fair market price or value; the Board of Tax Appeals redetermined the value at $5,750 on the theory that $500, the .amount the plaintiff finally paid for the property in 1915, plus $5,250 expended between 1912 and 1915 in the ejectment litigation which established the title, was the fair market price or value of the property in 1913; .and the learned district court adjudged the value at $28,000, the amount stipulated as the fair market price or value on Mareh 1, 1913, in the hands of an owner able to convey a complete title with exclusive right of possession conformably with its understanding of the rule prescribed by the statute.
The applicable provision of the Revenue Aet of 1918 is section 202a (40 Stat. 1060), which provides:
“That for the purpose of ascertaining the gain derived or loss sustained from the sale •or other disposition of property, real, personal, or mixed, the basis shall be—
“(1) In the case of property acquired before Mareh 1, 1913, the fair market price or value of such property as of that date; and
“(2) In the ease of property acquired on or after that date, the cost thereof. * * * ”
The defendant urg-es that in view of the transactions between Greene and Hewes beginning in 1896 with the delivery of a deed of conveyance with a nominal consideration and the giving of a mortgage for $800 and concluding in 1915 with satisfaction of the mortgage, payment of $500 and recording the deed, there was between Greene (and perhaps the paving company) on one part and Hewes on the other a constructive trust which did not ripen into a title in Hewes until, ^ft-er March 1, 1913, the fluctuating consideration was finally paid, and that in consequence Hewes acquired the property after that date, and that under section 202a (2) the property should be valued at cost. This is still another rule sought to be applied in determining the value of the property in question. We are, on the facts, constrained to hold against this contention and stand with the learned trial judge on his finding that the doings of the parties, especially Greene’s delivery in 1896 and subsequent recognition of an absolute conveyance, were inimical to the existence of a trust. The question of taxable gain therefore is ruled by section 202a
(1) of the Revenue Act of 1918 prescribing, in the case of property acquired before March 1,1913, its fair market price or value on that date as the basis of the tax.
Applying this, the only valid rule, to the ease, what does the stipulated record show as to the “fair market price” or the “fair market value?’ of the plaintiff’s property on Mareh 1, 1913? As it discloses no sale of the property and no sales of nearby properties in that year it supplies no evidence of a market price. Coneededly it had a market value, stipulated to be $28,000’ if the owner’s title were good and his right to possession exclusive. This qualification of the stipulation cannot alter the true value of the property unless, as the defendant urges, we should take into account the adverse claims of title. By this we are asked, in effect, to appraise the adverse claims of title and reckon the value of the property by deducting the value of the claims.' We think such a rule is not sound because not sanctioned by the statute and not practicable because impossible of application. Any claim made adversely to the title of property has a quality or value, even a nuisance value, that may affect its ready sale but it does not change its actual value. If it be thought there is a difference between actual value and market value it is certain that the statute does not authorize the determination of fair market value, the basis of taxable gain, by deducting from actual value any amount which someone might think is the destructive value of a claim made adverse to the title. Moreover it is the value of property, not the value of adverse claims of title or the value of property affected by adverse claims, that the statute makes the basis of the taxpayer’s liability for taxation. If it wore otherwise any assertion of a,n unfounded claim of title would become if not the basis certainly a factor of taxation and the rule of tho statute •would be displaced by the acts and whims of strangers, thereby actually and, 'we think, unla,wfully depreciating the true taxable value of property and depriving the taxpayer of a lawful advantage.
As the courts of Pennsylvania have in this instance decided that the plaintiff, ever since the delivery of the deed in 189G, had a good title with right to exclusive possession to the property in question, we are constrained to hold that its fair market value on March 1,1913, was that which was stipulated.
The judgment is affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer:
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songer_casetyp1_7-3-3
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D
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the 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".
In re SKORCZ. TRUSTEES SYSTEM REINCO CO. v. SKORCZ.
No. 4899.
Circuit Court of Appeals, Seventh Circuit.
June 24, 1933.
Rehearing Denied Nov. 16, 1933.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
Walter Hamilton, of Chicago, 111., for appellant.
John C. Melaniphy, of Chicago, 111., for appellee.
SPARKS, Circuit Judge
(after stating the facts as above).
Appellant contends that the court erred in entering the restraining order because: (1) The note, assignment of wages, and notice of such assignment, under the law of Illinois, created a lien on the wages of bankrupt after adjudication, when and as such wages were earned, and that lien was not discharge-able in bankruptey; (2) the wages included in the restraining order constituted no part of bankrupt’s estate, and appellant had instituted no suit of any kind for their recovery prior to the issuance of the order, nor had it made any threat to collect the same; (3) .the circuit court of Cook county had assumed jurisdiction of the siTbjeet matter of the restraining order and of the parties prior to the issuance of the order, and the district court had no authority under the bankruptey act to issue it.
It is not denied that the decisions of the Supreme Court of Illinois hold that an assignment of future wages made more than four months prior to adjudication in bankruptcy to secure any indebtedness creates a lien on such wages. Mallin v. Wenham, 209 Ill. 252, 70 N. E. 564, 65 L. R. A. 602, 101 Am. St. Rep. 233; Monarch Discount Co. v. Chesapeake & Ohio Ry. Co., 285 Ill. 233, 120 N. E. 743. If this doctrine is to be considered as controlling this court in the instant case, then of course appellant’s first contention is correct; but appellee on the other hand contends: (1) That the decisions of the state courts are not binding on the federal courts in the determination of what is property under the Bankruptcy Act; and (2) that the decisions of the Illinois court are contrary to the weight of reason and authority of federal and other state courts which hold that wages to be earned in the future are not property upon which a lien may attach.
Future wages are conditional in their nature, being dependent upon performance of the services to be rendered. It follow# therefore that an assignment given against such wages cannot create a legal lien since there is no property in being at the time the assignment is given. The lien must therefore be an equitable one which cannot attach until the property comes into being. If in the meantime the debt has been discharged by the action in bankruptcy, the lien falls. Appellant argues that this court is precluded from holding thus by reason of the Illinois decisions to the contrary which it asserts are binding upon this court. Those decisions constitute a local definition of principles applying to a situation which is not limited to this state, but which has arisen in many of the states. The decisions do not depend upon statutory law, but upon the local interpretation of general law. Further, since bankruptey is itself an equitable proceeding as is the interpretation of an equitable lien, we think this court is not bound by the decisions of the state court under the principles laid down in Swift v. Tyson, 16 Pet. 1, 18, 10 L. Ed. 865, and Guffey v. Smith, 237 U. S. 101, 114, 35 S. Ct. 526, 59 L. Ed. 856.
While we find no ease in which the Supreme Court has passed on the specific question involved in the instant ease, nevertheless it has in several cases laid down certain broad principles regarding the interpretation of the Bankruptcy Act which we think control our decision here. In Board of Trade v. Johnson, 264 U. S. 1, 44 S. Ct. 232, 234, 68 L. Ed. 533, it said,
“Of course, where the Bankrupt Law deals with property rights which are regulated by the state law, the federal courts in bankruptcy will follow the state courts; but when the language of Congress indicates a policy requiring a broader construction of the statute than the state decisions would give it, federal courts cannot be concluded by them. Board of Trade v. Weston, 156 C. C. A. 112, 243 F. 332.”
In the Weston Case just cited, the court said,
“Now, it would be strange if the dominant grant to Congress to legislate upon bankruptcy and insolvency, and which, when exercised, supersedes state legislation respecting these matters, should nevertheless be subordinate to the right of each state to determine what is or shall be property, subject to the terms of the Bankruptcy Act.”
In Williams v. U. S. Fidelity & Guaranty Co., 236 U. S. 549, 35 S. Ct. 289, 290, 59 L. Ed. 713, the court said,
“It is the purpose of the'Bankrupt Act [11 USCA] to convert the assets of the bankrupt into cash for distribution among creditors, and then to relieve the honest debtor from the weight of oppressive indebtedness, and permit him to start afresh free from the obligations and responsibilities. ® * * And nothing is better settled than that statutes should be sensibly construed, with a view to effectuating the legislative intent.”
In Re Voorhees (D. C.) 41 F.(2d) 81, 85, an Ohio statute as to assignment of wages was held not controlling in bankruptcy proceedings, and the court said,
“It seems to us that any state law which attempted to create a lien upon such property or earnings so as to be effective and operative after the discharge of the bankrupt would be construed by the federal courts to be ineffective for that purpose. * * * It seems to us that the purpose of the Bankruptcy Act is plain, and that any device, whether an assignment, * * * or what not, would be ineffectual against its purpose to give the bankrupt a new start.”
The weight of authority supports appellee’s contention that wages to be earned in the future are not property upon which a lien may attach prior to their existence. A different rule, however, was enunciated in Mallin v. Wenham, 209 Ill. 252, 70 N. E. 564, 65 L. R. A. 602, 101 Am. St. Rep. 233, and Citizens’ Loan Ass’n v. Boston & M. Ry. Co., 196 Mass. 528, 82 N. E. 696, 14 L. R. A. (N. S.) 1025, 124 Am. St. Rep. 584, 13 Ann. Cas. 365. With the rule and the reasoning therein announced we are not in accord. This being true we hold that appellant, at the time of the adjudication in bankruptcy, had no lien upon the bankrupt’s wages which had not at that time been earned, nor upon such wages as and when they were earned.
It may he conceded, as contended by appellant, that the wages included in the restraining order constituted no part of the bankrupt’s estate at the time of the adjudication. That estate, and none other, the court was hound to administer; hut it does not follow from this admission that the bankruptcy court is not interested in the protection of the bankrupt’s subsequent estate. Indeed, quite the converse is true, and constitutes the primary purpose of the bankruptcy enactment. That the bankruptcy court has plenary power to award that protection by injunction we think there can be no doubt, otherwise the effect of the Bankruptcy Act oftentimes might be destroyed. 11 USCA § 11, subd. 15; Seaboard Small Loan Corp. v. Ottinger, supra; In re Fellows (D. C.) 43 F. (2d) 122; In re Voorhees, supra; In re Swofford Bros. (D. C.) ISO F. 549; In re Home Discount Co., supra.
Appellant’s contention that prior to the restraining order there were no actions or threats on its part relative to the enforcement of its alleged lien sufficient to authorize or warrant the issue of the order is without merit. Its service of notice of the assignment upon the employer and its answer to the interpleader were sufficient to warrant the court’s action in that respect.
Decree affirmed.
“But, admitting the doctrine to he fully settled in New York, it* remains to be considered, whether it is obligatory upon this court, if it differs from the principles established in the general commercial law. It is observable, that the courts of New York do not found their decisions upon this point, upon any local statute, or positive, fixed or ancient local usage; but they deduce the doctrine from the general principles of commercial law. It is, however, contended, that the 34th section of the judiciary act of 1783 [28 USCA § 725] *• * * furnishes a rule obligatory upon this court to follow the decisions of the state tribunals in all cases to which they apply. That section provides ‘that the laws of the several states, except where the constitution, treaties or statutes of the United States shall otherwise require or provide, shall be regarded as rules of decision, in trials at common law, in the courts of the United States, in cases where they apply.’ In order to maintain the argument, it is essential * * ” to hold, that the word ‘laws,’ in this section, includes within the scope of its meaning, the decisions of the local tribunals. In the ordinary use of language, it will hardly be contended that the decisions of courts constitute laws. They are, at most, only evidence of what the laws are, and are not, of themselves, laws. They are often re-examined, reversed and qualified by the courts themselves, whenever they are found to be either defective, or ill-founded, or otherwise incorrect. The laws of a state are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long-established local customs having the force of laws. In all the various cases
* * * this court have uniformly supposed, that the true interpretation * * * limited its application to state laws, strictly local * * * and to rights and titles to things having a permanent locality, such as the rights and titles to real estate, and other matters immovable and intra-territorial in their nature and character. It never has been supposed by us, that the section did apply, or was designed to apply, to questions of a more general nature, not at all dependent upon local statutes,
* * * as, for example, to the construction of ordinary contracts or other written instruments, and especially to questions of general commercial law, where the state tribunals are called upon to perform the like functions as ourselves, that is, to ascertain, upon general reasoning and legal analogies, what is the true exposition of the contract or instrument, or what is the just rule furnished by the principles of commercial law to govern the case.
* * ¥ Undoubtedly, the decisions of the local tribunals upon such subjects are entitled to, and will receive, the most deliberate attention and respect of this court; but they cannot furnish positive* rules, or conclusive authority, by which our own judgments are to be bound up and governed.”
Guffey v. Smith, 237 U. S. 101, 35 S. Ct. 526, 530, 69 Li. Ed. 856. “ * By the legislation of Congress and repeated decisions of this court it has long been settled that the remedies afforded and modes of proceeding pursued in the Federal courts, sitting as courts of equity, are not determined by local laws or rules of decision, but by general principles, rules and usages of equity having uniform operation in those courts wherever sitting. v ‘Wherever a case in equity may arise and be determined, under the judicial power of the United States, the same principles of equity must be applied to it, and it is for the courts of the United States, and for this court in the last resort, to decide what those principles are, and to apply such of them, to each particular case as they may find justly applicable. Neves v. Scott; 13 How. 268, 14 L. Ed. 140.”
Seaboard Small Loan Corporation v. Ottinger (C. C. A.) 50 F. (2d) 856, 77 A. L. R. 956 ; In re West (D. C.) 128 F. 205; In re Karns (D. C.) 148 F. 143; In re Ludeke (D. C.) 171 F. 292; In re Home Discount Co. (D. C.) 147 F. 538; In re Lineberry (D. C.) 183 F. 338; In re Voorhees (D. C.) 41 F.(2d) 81; In re Fellows (D. C.) 43 F.(2d) 122; In re Potts (D. C.) 54 F. (2d) 144; Levi v. Loevenhart, 138 Ky. 133, 127 S. W. 748, 30 L. R. A. (N. S.) 375, 137 Am. St. Rep. 377; Leitch v. No. Pac. Ry. Co., 95 Minn. 35, 103 N. W. 704, 5 Ann. Cas. 63; Rate v. American Smelting & Refining Co., 56 Mont. 277, 184 P. 478; Hupp v. Union Pac. Ry. Co., 99 Neb. 654, 157 N. W. 343, L. R. A. 1916E, 247; Rowe v. Public Finance Co., 37 Ohio App. 133, 174 N. E. 164. See also 1 Collier on Bankruptcy (13th Ed.) 600, and 7 Corpus Juris, p. 411.
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_casetyp1_7-3-5
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L
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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".
HOLUB v. SWORD S. S. LINE, Inc. THE WESTERN SWORD.
No. 10369.
Circuit Court of Appeals, Fifth Circuit.
Dec. 18, 1942.
H. C. Hughes, of Galveston, Tex., for appellant.
W. M. Ryan, of Houston, Tex., for ap= pellee.
Before HUTCHESON and McCORD, Circuit Judges, and KENNERLY, District Judge.
KENNERLY, District Judge.
On July 10, 1941, the Steamship “Western Sword” was at the Port of Galveston, Texas, to take on a cargo of sulphur to be shipped by the Texas Gulf Sulphur Company. Appellant and another, both employees of the Sulphur Company, went upon the Ship on that date to inspect her holds and determine whether they were clean and in condition for taking on a cargo of sulphur. The Ship had formerly been equipped with cargo battens (planks or strips of wood) held in place by “cleats” (also called “angle irons” or “cargo board hangers”) made of iron. The cargo battens were not needed in shipping sulphur and had been removed, but the cleats remained. It was necessary in inspecting the Ship for Appellant to climb about, and in doing so, he, instead of using the ladders belonging to the Ship, which were available, used the cleats, and because the bolt or bolts holding it had rusted, one of the cleats, when his weight was placed upon it, broke or came loose, causing him to fall, and he was injured.
Thereupon, Appellant brought this suit in Admiralty against the Ship for damages for such injury, charging unseaworthiness of the Ship and that she and her owners were negligent.
The Owners appeared, answered specially, and only as Claimants of the Ship, denied negligence, claimed Appellant to be guilty of negligence, pleaded assumed risk, and set forth that Appellant had been paid compensation for his injury under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq., and that this suit, if prosecuted at all, should be prosecuted by Appellant’s employer, the Sulphur Company. Judgment went for Appellee, and Appellant is here complaining. The Trial Judge filed Findings of Fact, which we find well supported by the evidence, and which we approve.
The cleats were placed and maintained in the Ship solely to hold the cargo battens in place and not for use by Appellant or others in climbing about inspecting the Ship. Appellee owed Appellant no duty to maintain them so that Appellant could safely use them to climb upon, and the Ship was not rendered unseaworthy because of Appellee’s failure to do so, nor was such failure negligence unless Appellee knew, or under the facts should have known, or was charged with notice, that Appellant intended to and would so use them. The Queen Elizabeth, D.C., 209 F. 712, Consolidation Coastwise Co. v. Conley, 1 Cir., 250 F. 679, 680, New Orleans Coal & Bisso Towboat Co. v. United States, 5 Cir., 86 F.2d 53, Smith v. United States, 5 Cir., 96 F.2d 976.
The Trial Judge found that Appellee had no means of knowing and did not know before the injury that Appellant was on the Ship for the purpose of inspecting it, and had no reason to believe that he would go on the Ship and make use of the cleats in climbing to make the inspection. Appellant and several of the other witnesses testified to a local custom of persons using the cleats instead of the ladders in inspecting ships, but the Trial Judge made no specific finding on the point. He did find that if there was such a local custom, that it was conclusively shown that Appellee did not know of it. He also found that there was no such general custom, but that it was the general custom, which was known to Appellee, for persons so inspecting ships to make use of ladders, and that ladders were available on the Ship and would have been furnished Appellant at his request. That neither Appellant nor his fellow employee requested the use of ladders.
The Judgment for Appellee was right. It is affirmed.
The wording of the charge of unseaworthiness and negligence as found in Appellant’s Libel is as follows:
“That the S. S. Western Sword and the owners thereof were guilty of negligence in the following particulars :
“(a) In failing to have their ship in proper and seaworthy condition for the use of persons like the libelant who would have business upon said ship ;
“(b) In failing to have their ship properly inspected so that they might have discovered the condition of said cargo board hanger;
“(c) In failing to provide the libelant with a safe place to do the work which those in charge of the S. S. Western Sword and its owners knew had to be performed in the loading of sulphur cargoes.
“(d)"In failing to have a safe cargo board hanger (cleats) upon said ship in a place where it was well known that those doing such work as required by libelant would probably and necessarily go.”
Findings 7 and 8 of the Trial Judge are as follows:
“7. Libelant and his witnesses testified to a local custom of using the cleats for the purpose of climbing up the sides of the vessel and making these inspections. There was no evidence, however, of any general custom and it was shown conclusively that the ship’s officers knew of no such local custom. The general custom was to make use of ladders, which were available on the vessel at the time and would have been furnished upon request. They were not requested by libelant or his fellow employee. The ship’s officers had no means of knowing, before the injury, that libelant was on the vessel for the purpose of making an inspection; and no reason to believe that he would make use of the cleats in climbing up to make his inspection. There was no evidence that this particular vessel had ever been inspected before by employees of the Sulphur Company, and no evidence justifying the Court in concluding that the ship’s officers might have anticipated the use of the cleats for such purpose.
“8. Of course the owners of the vessel owed libelant the duty to furnish him a safe place to work, and to warn him of any hidden danger; but this is not a case in which defective appliances were furnished or where the owners or officers-of the vessel had notice of a local custom or reasonable grounds to believe that libelant would use the cleats for- the purpose of climbing up the sides of the vessel.”
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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songer_direct2
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for 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.
In re TINKOFF. TINKOFF et al. v. GOLD et al.
No. 8311.
Circuit Court of Appeals, Seventh Circuit.
Feb. 9, 1944.
Rehearing Denied May 3, 1944.
Ella Tinkoff, pro se., and Paysoff Tinkoff, of Chicago, 111., for appellants.
Kellam Foster and Louis Cohen, both of Chicago, 111., for appellees.
Before EVANS, SPARKS, and MIN-TON, Circuit Judges.
MINTON, Circuit Judge.
Ella Tinkoff, the debtor, filed a petition for an arrangement under Chapter XII of the Bankruptcy Act, 11 U.S.C.A. § 801 et seq. Her petition is not in the record. However, from the indiscriminate assortment of papers and briefs that have been permitted to be filed in this case, much as • goods are commonly accepted by a storage warehouse, we gather that there are three pieces of real estate in which she claims to have some interest. These parcels are known as the Hamm, the Mailers, and certain unimproved properties. Proceedings were had in the Superior Court of Cook County, Illinois, foreclosing mortgages on all these properties. We are unable to ascertain any details as to the unimproved property which seems to have been of little value. But the facts as to the Hamm and Mailers properties seem to be as follows:
On June 22, 1934, a suit to foreclose the Mailers property was filed in the State court against Ella Tinkoff, the owner of the property, and her husband, Paysoff Tinkoff. January 28, 1936, a decree of foreclosure was entered. February 17, 1936, an order was entered denying the motion of the Tinkoffs to vacate and set aside the decree of sale. March 7, 1936, the court approved the master’s report of sale. January 26, 1937, a petition was filed by the Tinkoffs to vacate the order approving the master’s report of sale. On the same date, the petition was denied and the sale confirmed.
Prior to August 7, 1935, a foreclosure proceeding was commenced on the Hamm property. The decree of strict foreclosure was entered February 4, 1936. On September 5, 1936, the Tinkoffs filed a petition to vacate the decree of February 4, 1936. On January 26, 1937, the petititon to vacate was denied. On February 4, 1937, the Tinkoffs filed another petition to vacate the decree of February 4, 1936, but this second petition was never acted on. On May 24, 1937, the Appellate Court of Illinois denied the right of the Tinkoffs to appeal from the decree of February 4, 1936, and the order of January 26, 1937.
On November 15, 1935, Ella Tinkoff filed a voluntary petition in the bankruptcy court for relief under Section 74 of the Bankruptcy Act, 11 U.S.C.A. § 202. The bankruptcy court dismissed her petition on January 20, 1936. We affirmed on July 16, 1936 (7 Cir., 85 F.2d 305) and on October 1, 1936, denied a petition for rehearing. The ground for dismissal was that the petition in bankruptcy was not filed in good faith.
On March 6, 1936, this Court restrained the foreclosure proceedings in the State court on the Mailers property, and on November 21, 1936, the Hamm proceedings were included. On January 12, 1937, this Court vacated all of its restraining orders.
The alleged interest in the Mailers property sought to be arranged derives from a claim by Paysoff Tinkoff that the return of service of the summons made upon him in Kansas did not exemplify that the notary public who swore the serving officer was a notary, as required by Illinois decisions. We do not see how such a defect would help the debtor. Even if we assume the service on Paysoff Tinkoff was defective and not cured, that did not invalidate the service upon and proceedings against Ella Tinkoff. The service as to her being valid, whatever interest she had was subject to the jurisdiction of the court and any action taken was binding on her. This alleged defect in the service on Paysoff, if it existed, would not increase the interest of Ella Tinkoff in the property. Her interest was foreclosed by the decree. From this decree she had only an equity of redemption, which has long since expired. She therefore had no interest in the Mailers property left to her by reason of defective service on her husband, if it was defective and uncured.
It is also urged that as to the Hamm property the state proceedings are still pending, because the court made no disposition of the motion filed February 4, 1937, to vacate the decree of foreclosure entered February 4, 1936. Under the Illinois practice, this motion to be effective had to be made within thirty days after the entry of the decree sought to be vacated. Smith Hurd Ill.Rev.Stat.1943, Ch. 110, § 174(7), Ch. 77, §§ 82-84; Davis v. East St. Louis & Suburban R. Co., 290 Ill.App. 540, 542, 543, 9 N.E.2d 254. The motion by the appellants was made eleven months too late. A failure to dispose of a motion filed too late cannot affect the order to which the tardy motion was directed.
Finally, it is contended by the appellants that, although the foreclosure proceedings were begun in a court of competent jurisdiction, the initiation of the. bankruptcy suit rendered void all proceedings which had taken place in the State court subsequent to the filing of the petition in bankruptcy.
We cannot agree to this proposition. Section 74 of the Bankruptcy Act, 11 U.S. C.A. § 202, contains no automatic ouster of the jurisdiction of other courts, such as is provided by Section 75, sub. o, 11 U. S.C.A. § 203, sub. a, relating to farmer debtors. Section 75, sub. o, by its own force effects the ouster. Section 74, sub. n, merely authorizes the bankruptcy court to stay proceedings in other courts. Benitez v. Bank of Nova Scotia, 1 cir., 110 F.2d 169, 174.
No stay was entered except by this Court. Our stay was entered March 6, 1936, without notice. On March 7, 1936, before our stay order was served upon the court below, an order confirming the sale of the Mailers property was entered there. We refused to entertain any contempt proceedings for the entry of that order.
Since there was no effective stay order in force prior to our order of March 6, 1936, and since the Bankruptcy Act did not automatically stay such proceedings, we look to prior decisions to learn whether the appellants have any support for their contention that the filing of the petition in bankruptcy by its own force made void all proceedings in the State court. They rely upon Isaacs v. Hobbs Tie & Timber Co., 282 U.S. 734, 51 S.Ct. 270, 75 L.Ed. 645. In that case, the State foreclosure proceedings were begun after the bankruptcy proceedings had been instituted and after the bankruptcy trustee had thereby acquired constructive possession of the land. In the case at bar, the bankruptcy petition followed the commencement of the foreclosure proceedings in the State court.
The mortgages foreclosed in the State court were not vulnerable under the Bankruptcy Act. The Sate court was in possession of the property and was foreclosing valid mortgages when the petition in bankruptcy was filed. The filing of such petition in and of itself did not oust or affect the jurisdiction of the State court to proceed to final disposition. The rule in such circumstances is stated thus in Straton v. New, 283 U.S. 318, 326, 51 S.Ct. 465, 468, 75 L.Ed. 1060:
“Following these cases the federal courts have with practical unanimity held that where a judgment which constitutes a lien on the debtor’s real estate is recovered more than four months prior to the filing of the petition, the bankruptcy court is without jurisdiction to enjoin the prosecution of the creditor’s action, instituted pri- or to the filing of a petition in bankruptcy, to bring about a judicial sale of the real estate.
“The trustee in bankruptcy may intervene in such suits to protect the interests of the estate.”
The rule enunciated by Justice Miller in the old case of Eyster v. Gaff, 91 U.S. 521, 524, 23 L.Ed. 403, is applicable to the facts of our case and effectively disposes of the appellants’ argument. Justice Miller said:
“It is a mistake to suppose that the Bankrupt Law avoids of its own force all judicial proceedings in the State or other courts the instant one of the parties is adjudged a bankrupt. There is nothing in the act which sanctions such a proposition.
“The court in the case before us had acquired jurisdiction of the parties and of the subject-matter of the suit. It was competent to administer full justice, and was proceeding, according to the law which governed such a suit, to do so. It could not take judicial notice of the proceedings in bankruptcy in another court, however seriously they might have affected the rights of parties to the suit already pending.
“It was the duty of that court to proceed to a decree as between the parties before it, until by some proper pleadings in the case it was informed of the changed relations of any of those parties to the subject-matter of the suit. Having such jurisdiction and performing its duty as the case stood in that court, we are at a loss to see how its decree can be treated as void.
The proceedings in the State court were valid. Ella Tinkoff is not shown to have any interest in the property for which she seeks to provide an arrangement. There was no error in dismissing her petition.
The judgment of the District Court is affirmed.
Pfeil v. Loeb, 255 Ill.App. 484, and cases there cited.
Rodman v. Quick, 211 Ill. 546, 71 N.E. 1087; Culver v. Lincoln Sav. & Bldg. Ass’n, 271 Ill.App, 91.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
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songer_usc2sect
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1912
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
David Anthony DOYLE, Plaintiff-Appellant, v. The OKLAHOMA BAR ASSOCIATION; James M. Tisdale, individually and as Chairman, Professional Responsibility Commission, Oklahoma Bar Association; Paul M. Vassar, individually and as Member, Professional Responsibility Commission, Oklahoma Bar Association; Dan Murdock, individually and as General Counsel, Oklahoma Bar Association; Thomas C. Riesen, individually and as Assistant General Counsel, Oklahoma Bar Association; Marvin C. Emerson, individually and as Executive Director, Oklahoma Bar Association, Defendants-Appellees.
No. 92-6104.
United States Court of Appeals, Tenth Circuit.
July 19, 1993.
Sylvia Marks-Barnett, Oklahoma City, OK, for plaintiff-appellant.
George F. Shorts (Cynthia L. Sparling with him on the briefs), Short Barnes Wiggins Margo & Adler, Oklahoma City, OK, for defendants-appellees.
Before MOORE, GODBOLD, and ANDERSON, Circuit Judges.
The Honorable John C. Godbold, Senior Judge, United States Court of Appeals, Eleventh Circuit, sitting by designation.
STEPHEN H. ANDERSON, Circuit Judge.
David Anthony Doyle appeals the dismissal of his civil rights action under 42 U.S.C. § 1983 against the Oklahoma Bar Association (the “Bar”), its executive director, general counsel, assistant general counsel, and two members of the Professional Responsibility Commission (the “PRC”). Doyle brought this action after he became dissatisfied with the way Bar counsel and the PRC handled a grievance he had filed with the Bar against his ex-wife’s lawyer. His complaint is based on the theory that he has federal constitutional rights to have á lawyer investigated after a grievance is filed, to have a meaningful investigatory process for grievances so as to keep the profession, respectable, to have the defendants comply with the Oklahoma Supreme Court’s Rules Governing Disciplinary Proceedings, and to have defendants monitor lawyers so they will not make material misrepresentations in court. Complaint ¶ 21, Appendix to Appellant’s Brief at 9.
The district court dismissed Doyle’s complaint pursuant to Fed.R.Civ.P. 12(b)(6) for failing to allege a constitutionally protected right, among other things, 787 F.Supp. 189. We agree and affirm.
BACKGROUND
The Oklahoma Supreme Court (the court) has exclusive jurisdiction in all matters involving the licensing and discipline of lawyers in Oklahoma. Okla.Stat.Ann. tit. 5, Ch. 1, App. 1-A, R. 1.1. In the exercise of that authority the court has promulgated rules governing lawyer discipline (the Rules). Id. The Rules, among other things, address the filing, consideration, and investigation of grievances against lawyers, through the office of the General Counsel of the Bar, and the PRC, a body consisting of lawyers and nonlawyers.
In the exercise of its sole discretion, the PRC may cause a formal complaint against a lawyer to be filed with the court, charging.specified violations of the Code of Professional Responsibility or other prescribed standards of professional conduct. Hearings (essentially a trial and open to the public) on the formal complaint take place before three-member panels selected from the Professional Responsibility Tribunal (Tribunal), another body created by the Rules and consisting of both lawyers and ’nonlaw-yers. The hearing panel has no power either to impose or refuse to impose discipline. It submits to the court findings, conclusions and recommendations, which are advisory only and in no way binding on the court. Thereafter, the court, in its sole discretion, makes such findings of its own and takes such action with respect to the charges against the lawyer as it deems appropriate, including dismissal of the proceedings, imposition of some type of discipline, or some other action. Okla.Stat.Ann. tit. 5, Ch. 1, App. 1-A, R. 6.16; State v. Miskovsky, 824 P.2d 1090, 1093 (Okla.1991).
The system relating to lawyer discipline in Oklahoma, therefore, is prosecutorial in nature (discretion to investigate and to charge) up to and through the filing of a formal complaint against a lawyer at the direction of the PRC. After such. a complaint is filed the process proceeds to the hearing, or trial, stage which is adjudicatory in nature or, more precisely, quasi adjudicatory, since the result of the hearing proceedings is advisory and nonenforceable. See Tweedy v. Oklahoma Bar Ass’n, 624 P.2d 1049, 1054-55 (Okla.1981). As indicated above, only the supreme court can discipline. See Miskovsky, 824 P.2d at 1093.
The allegations contained in Doyle’s complaint center on the handling of Doyle’s grievances at the prosecutorial level or, as he claims, a stage even prior to that-grievance intake procedures.
On January 26, 1990, Doyle sent a written grievance to the Bar complaining about the conduct of his ex-wife’s lawyer. The complaint filed by - Doyle in this action attaches communications received by him in the matter but omits the ones he.sent, including the grievance in question; however, we gather from paragraphs 6 and 22 of the complaint that Doyle lost a child custody proceeding in state court, following which he complained to the Bar that his ex-wife’s lawyer committed perjury “which resulted in judgments and orders adverse to [Doyle].” Complaint ¶ 6, Appendix to Appellant’s Brief at 3.
■Under the Rules, when a written grievance is filed against a lawyer the General Counsel of the Bar may proceed in the alternative as follows:
RULE 5.2. INVESTIGATIONS. After making such preliminary investigation as the General Counsel may deem appropriate, the General Counsel shall either (1) notify the person filing the grievance and the lawyer that the allegations of. the grievance are inadequate, incomplete, or insufficient to warrant the further attention of the Commission, provided that such action shall be reported to the Commission at its next meeting, or (2) file and serve a copy of the grievance... upon the lawyer....
(emphasis added). As the Rule indicates, the General Counsel has authority to screen out those grievances which are inadequate, incomplete, or insufficient to warrant further attention, with notice to that effect to the person who filed the grievance. That authority was exercised with respect to Doyle’s complaint. On February 7,1990, twelve days after Doyle filed his grievance, the Assistant General Counsel of the Bar wrote the following letter to Doyle:
Dear Dr. Doyle:
We are in receipt of your complaint against the above-referenced attorney. The Oklahoma Bar Association understands your situation, however, it is our opinion that we are not in a position to resolve this matter for you.
The General Counsel’s Office deals with grievances alleging attorney conduct which violates the Oklahoma Rules of Professional Conduct. An attorney’s conduct may seem inappropriate but it may not necessarily rise to the level of a legal. ethics violation.
I am hopeful that this matter will be promptly resolved to your satisfaction.
Exhibit B to Complaint, Appendix to Appellant’s Brief at 18 (emphasis added).
Doyle responded with two letters to the General Counsel (neither of which was attached as an exhibit to the complaint) apparently complaining about the Assistant General Counsel’s disposition of Doyle’s grievance and demanding another result. The General Counsel wrote back saying he would look into the way the grievance was handled and.get back to Doyle in a week. That contact did not occur. When Doyle did not hear from the General Counsel by August 1990, he filed a grievance against him. That grievance, filed with the PRC, alleged misconduct by counsel in carrying out his duties under Rule 3.2(b), which provides as follows: ■
RULE 3.2. DUTIES. The General Counsel of the Oklahoma Bar Association shall have the following powers and duties in the are of discipline under these Rules:
(b) To investigate all matters involving possible misconduct or alleged incapacity of any lawyer called to the General Counsel’s attention by complaint or otherwise;
About three weeks later Doyle, having heard nothing from the PRC, wrote to the Vice Chief Justice of the Oklahoma Supreme Court apparently complaining about the handling of both of his grievances. The justice responded by return mail, with a copy to the General Counsel, informing Doyle that he was not permitted to correspond directly with the Supreme Court on such matters, and enclosing explanatory materials. Counsel immediately reported by letter to the justice, describing the status of Doyle’s grievance. The letter stated:
Dear Justice Opala:
I have enclosed a copy of my initial correspondence with Dr. David Doyle concerning his complaint. I have also spoken with Dr. Doyle over the telephone and regularly receive facsimile transmissions from him. Dr. Doyle may also be referred to a facsimile transmission sent to him after he received our initial letter. That review did not cause a change in our position.
I will cooperate with you and am available for further discussions regarding this matter if needed.
Exhibit E to Complaint, Appendix to Appellant’s Brief at 21 (emphasis added). Doyle promptly amended his grievance against the General Counsel, alleging that counsel’s report to the Vice Chief Justice constituted a violation of Rule 3.3. That Rule provides:
RULE 3.3. GRIEVANCES AGAINST THE GENERAL COUNSEL OF THE ASSOCIATION.
(a) Whenever a grievance is filed, or information is received by the Commission which could lead to the filing of a formal complaint against' the General Counsel of the Association, the members of the Commission and the President and the Executive Director of the Association shall immediately be notified.
(b) The General Counsel shall disqualify himself from all further participation in the investigation and determination of the matter, and the chairman of the Commission, or in the event of the chairman’s absence of inability to act, the vice-chairman, shall appoint a lawyer-member of the Commission, or the Commission shall retain outside counsel, to act in the place of the General Counsel in the investigation and determination of the matter, and in its subsequent prosecution, in the event formal proceedings before a panel of the Professional Responsibility Tribunal result.
The Executive Director of the Bar (to whom Doyle had written as well), and a member of the PRC, Paul M. Vassar, both responded to Doyle’s latest filing, informing Doyle that the General Counsel had disqualified himself and that pursuant to Rule 3.3(b) Vassar had been appointed by the chairman of the PRC to act with respect to both of Doyle’s grievances. Mr. Vassar informed Doyle that he would “conduct such investigation as I think the matter warrants.” Exhibit G to Complaint, Appendix to Appellant’s Brief at 23. Doyle then apparently proceeded to contact and threaten Vassar, who responded:
Dear Sir:
On October 2, 1990, I advised you that as a lawyer-member of the Professional Responsibility Commission of the Oklahoma Bar Association, that I was conducting an investigation into the complaints that you had lodged with the Association. This investigation is ongoing and is being conducted in accordance with the Rules Governing Disciplinary Proceedings of the Association as promulgated by the Supreme Court of the State of Oklahoma. A copy of those Rules has been furnished to you by others.
I have read everything that you have submitted to the Association. -I fully understand your complaints. If it is neces-. sary for me to receive additional information from you, I will contact you. I specifically request that you do not contact me further unless I do so. I will not acknowledged (sic) receipt of any further communications from you unless I ask for them.
I view your letter of October 31,1990, as an attempt to interfere and threaten my investigation. I will not tolerate such from you or anyone else. You are a member of the Bar. I suggest.that you conduct yourself accordingly.
Exhibit H to Complaint, Appendix to Appellant’s Brief at 24.
Doyle’s complaint in this action asserts that Vassar’s appointment violated Doyle’s constitutional rights because Vassar had already reviewed Doyle’s grievances, and the investigations conducted by the General Counsel and Assistant General Counsel of the Bar, and had concluded that no further investigation was necessary. Complaint ¶ 16, Appendix to Appellant’s Brief at 7. The complaint also asserts that Doyle was wrongfully refused access to Vassar, and that Vassar’s letter displayed an anti-member-of-the-public and anti-member-of-the-public-who-is-not-an-American animus, thus infecting the integrity of the investigatory process, stripping it “of fairness and procedural safeguards required by due process.” Id. at 8, ¶ 19. The complaint alleges that all of this violated rights conferred upon Doyle by the preamble-to the Rules Creating and Controlling the Oklahoma Bar Association.
The complaint also accuses the Executive Director of the Bar and the defendant members of the PRC of failing to supervise the General Counsel so as to compel him to investigate the original grievance and notify Doyle of actions taken, prevent counsel from writing a status report letter to the Vice Chief Justice of the Oklahoma Supreme Court, and force counsel to disqualify himself more promptly than he did.
Due to the violation of these alleged constitutional rights, Doyle asserts in his complaint that he was damaged as follows: (1) he has been unsuccessful in his state court litigation because the lawyer about whom he complained was not disciplined; (2) he “suffers much anxiety and distress over attempts to secure access to the proper processing of the PRC and thereby some relief for his custody and visitation concerns”; (3) he has lost time from his business and practice as a barrister in Australia; (4) he has spent money and time traveling and instructing his lawyer; and (5) he has paid attorneys fees in his state court litigation because of the alleged misconduct of the lawyer-he seeks to have disciplined by the Bar, and fees for pursuing his disciplinary grievance. For these alleged damages, Doyle seeks a joint and several judgment of $4 million against the defendants.
STANDARD OF REVIEW
We review de novo the dismissal of a complaint under Fed.R.Civ.P. 12(b)(6), confining our review to the allegations of the complaint and taking them as true. See Ayala v. Joy Mfg. Co., 877 F.2d 846, 847 (10th Cir.1989). We are not obliged to consider the various allegations newly made by Doyle on appeal, since it is only the sufficiency of the complaint which is being reviewed.
DISCUSSION
A. STANDING.
A threshold issue in this case-one not addressed by the parties or the court below-is whether Doyle has standing to bring this suit and this appeal. The issue of standing is jurisdictional in nature, thus requiring our examination both as to our own jurisdiction and that of the district court. See Alexander v. Anheuser-Busch Cos., 990 F.2d 536, 538 (10th Cir.1993) (and cases cited therein); Frank Rosenberg, Inc. v. Tazewell County, 882 F.2d 1165, 1168 (7th Cir.1989), cert. denied, 493 U.S. 1023, 110 S.Ct. 726, 107 L.Ed.2d 745 (1990).
"[S]tanding and the cause of action based on violation of civil rights" are easily confused. Dohaish v. Tooley, 670 F.2d 934, 936 (10th Cir.), cert. denied, 459 U.S. 826, 103 S.Ct. 60, 74 L.Ed.2d 63 (1982). Both "focus on the nature of the plaintiffs injury and the nature of the invasion of his alleged right." Id.
For standing to exist, the plaintiff must "allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). The injury must be "distinct and palpable," Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975), as opposed to abstract, conjectural, or merely hypothetical. See City of Los Angeles v. Lyons, 461 U.S. 95; 101-02, 103 S.Ct. 1660, 1664-65, 75 L.Ed.2d 675 (1983); Frank Rosenberg, Inc. v. Tazewell County, 882 F.2d at 1168-69 (Plaintiff must have suffered "injury in fact" in order to satisfy the Article III requirement of justiciability.). Thus, one does not have standing to assert a violation of rights belonging to another, since the person entitled to a right is the only one who can be directly injured by its deprivation. See Warth, 422 U.S. at 499, 95 S.Ct. at 2205 (a litigant "must assert his own legal rights"); Barrows v. Jackson, 346 U.S. 249, 255, 73 S.Ct. 1031, 1034, 97 L.Ed. 1586 (1953).
Applying these principles, Doyle's complaint demonstrates on its face that he lacks standing. Essentially, he wanted a lawyer disciplined or at least greatly inconvenienced at the state level, and to use the result to somehow mount a collateral attack on a state court judgment. His complaint for damages rests on a core assertion that he was unconstitutionally deprived of these aims. As indicated above, the PRC acts in a prosecutorial capacity. Tweedy, 624 P.2d at 1052. As such it has full discretion to investigate, reinvestigate, weigh and reweigh actual or likely evidence, charge or not charge, and to reconsider and reverse or modify any decisions with respect to any of the foregoing at any time during the process. Id. at 1054-55. The sole discretion whether or not to file a formal complaint against a lawyer lies with the prosecutor, the PRC. Id.; Rule 5.3.
The United States Supreme Court has made it clear that "a private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973). Accordingly, "a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution." Id. Similarly, in Leeke v. Timmerman, 454 U.S. 83, 102 S.Ct. 69, 70 L.Ed.2d 65 (1981), the Court, citing Linda R.S, as controlling, dismissed on standing grounds a § 1983 suit alleging improper interference with plaintiffs' attempt to have an arrest warrant issued against persons who allegedly beat them, causing injury. The Court noted the rule that the plaintiffs had no federal right to the prosecution of another; and, in addition, there was no guarantee the warrant would have issued or, if so, that the prosecutor would have exercised discretion to prosecute. Id. 454 U.S. at 86-87, 102 S.Ct. at 70-71.
Subsequently, this court dismissed a § 1983 civil rights action on standing grounds in Dohaish, stating:
The ordinary citizen does not have a general interest justifying a lawsuit based on the criminal prosecution or non-prosecution of another. Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973). Such a right is not recognized in the law and, indeed, it would be contrary to public policy to allow every private citizen to force the prosecutor to proceed with a case in pursuit of a private objective. The district attorney is sworn to uphold the law generally and does not have a duty to enforce the law for the purpose of providing satisfaction to a third person who has no direct legal interest.
Dohaish, 670 F.2d at 937. See also Sattler v. Johnson, 857 F.2d 224, 226-27 (4th Cir.1988).
The fact is that the only one who stands to suffer direct injury in a disciplinary proceeding is the lawyer involved. Doyle', has no more standing to insert himself substantively into a license-based discipline system than he has to compel the issuance of a license.
We hold that Doyle lacks standing to bring this appeal and this action. However, to eliminate any doubt which may arise due to the multiplicity and generality of Doyle’s substantive due process claims, we elect to proceed to an alternate holding on the merits. See Daniels v. Williams, 474 U.S. 327, 339-40, 106 S.Ct. 662, 678, 88 L.Ed.2d 662 (1986) (Stevens, J., concurring in the judgment); Curry v. Baker, 802 F.2d 1302, 1313 (11th Cir.), cert. denied, 479 U.S. 1023, 107 S.Ct. 1262, 93 L.Ed.2d 819 (1986); Trujillo v. Board of County Comm’rs of County of Santa Fe, 768 F.2d 1186, 1187 (10th Cir.1985).
B. FAILURE TO STATE A CLAIM UNDER § 1983.
In an action under 42 U.S.C. § 1983 the plaintiff must “state a claim for violation of [a] right[ ] secured to him under the United States Constitution.” Siegert v. Gilley, — U.S. -, -, 111 S.Ct. 1789, 1791, 114 L.Ed.2d 277 (1991). See Baker v. McCollan, 443 U.S. 137, 140, 99 S.Ct. 2689, 2692, 61 L.Ed.2d 433 (1979). Doyle’s constitutional claim, as identified in his complaint, rests entirely on the Due Process- Clause of the Fourteenth Amendment. Complaint ¶ 21, Appendix to Appellant’s Brief at 9; Appellant’s Brief at 18.
The Due Process Clause “is the source of three different kinds of constitutional protection.” Daniels, 474 U.S. at 337, 106 S.Ct. at 677. First, it provides a “guarantee of fair procedure,... referred to as ‘procedural due process,’ ” in connection with any deprivation of life, liberty or property by a state. Id. This is “the most familiar office” of the Clause. Collins v. Harker Heights, — U.S. -, -, 112 S.Ct., 1061, 1068, 117 L.Ed.2d 261 (1992). Second, the Clause contains a substantive component “that protects individual liberty against ‘certain government actions regardless of the procedures used to implement them.'" Id. (quoting Daniels, 474 U.S. at 331, 106 S.Ct. at 665). This substantive component is referred to as substantive due process. Id. Third, the Clause incorporates the specific protections of most of the Bill of Rights against the states. These, too, are referred to as "substantive" rights, and are comprised within the "liberty" provision of the Clause. Planned Parenthood of S.E. Pa. v. Casey, - U.S. -, 112 S.Ct. 2791, 2804, 120 L.Ed.2d 674 (1992). See Daniels, 474 U.S. at 337, 106 S.Ct. at 677; Griffin v. Strong, 983 F.2d 1544, 1546 (10th Cir.1993); Miller v. Campbell County, 945 F.2d 348, 352 (10th Cir.1991), cert. denied, - U.S. -, 112 S.Ct. 1174, 117 L.Ed.2d 419 (1992).
Doyle alternatively invokes both substantive and procedural due process protections on the same facts, Appellant's Brief at 10-24, but the complaint does not fairly raise any claims under the incorporated provisions of the Bill of Rights. In sum, he argues that "the right to require a state bar to process a request for the investigation of lawyers, once the state bar accepts the grievance, according to the Rules of the state bar is a right guaranteed by the Constitution of the United States." Appellant's Brief at 10-11. We hold that it is not.
The Sixth Circuit addressed and flatly rejected a strikingly similar claim in Saier v. State Bar of Michigan, 293 F.2d 756 (6th Cir.), cert. denied, 368 U.S. 947, 82 S.Ct. 388, 7 L.Ed.2d 343 (1961). It held that "the right to require the State Bar to process Appellant's request for an investigation of certain lawyers is not a right guaranteed by the Federal Constitution." And, it affirmed the district court's dismissal of the complaint for failure to state a cause of action. Id. at 761. The district court in this case agreed with the holding in Saier, and so do we. Doyle's attempts to distinguish Saier, Appellant's Brief at 11-12, all ignore the clear reasoning and holding of the court, and-as with all of Doyle's arguments-evidence a total lack of comprehension of rights protected under the Due Process Clause.
1. Substantive Due Process.
Fairly analyzed, Doyle's argument is that the Federal Constitution imposes a duty on the defendants to do various things for him (investigate and process his grievance, somehow help him alter state court judgments by filing a formal disciplinary complaint against a lawyer, prevent perjurious statements in court; and so on), or to someone else (investigate and/or commence disciplinary proceedings against a lawyer). Substantive due process rights do not remotely relate to such claims. Substantive rights refer to "substantive liberties of the person," Casey, - U.S. at -, 112 S.Ct. at 2808, such as "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education." Id. at, 112 S.Ct. at 2807. Additionally, the Clause acts substantively to restrain the state from "the `affirmative abuse of power.'" DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 196, 109 S.Ct. 998, 1003, 103 L.Ed.2d 249 (1989) (quoting Parratt v. Taylor, 451 U.S. 527, 549, 101 S.Ct. 1908, 1920, 68 L.Ed.2d 420 (1981) (Powell, J., concurring in result)); see Daniels, 474 U.S. at 331, 106 S.Ct. at 665; Davidson v. Cannon, 474 U.S. 344, 347-48, 106 S.Ct. 668, 670, 88 L.Ed.2d 677 (1986). That includes the exercise of government power which is "conscience shocking, in a constitutional sense." Collins, - U.S. at -, 112 S.Ct. at 1063. See, e.g., Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952) (stomach pumping); Ingraham v. Wright, 430 U.S. 651, 674, 97 S.Ct. 1401, 1414, 51 L.Ed.2d 711 (1977) (excessive corporal punishment of student); Garcia v. Miera, 817 F.2d 650, 656 (10th Cir,1987) (corporal punishment of student "so grossly excessive as to be shocking to the conscience.... "), cert. denied, 485 U.S. 959, 108 S.Ct. 1220, 99 L.Ed.2d 421 (1988).
Substantive due process rights do not encompass a right to compel a state to do something for someone riot under some form of custody or restraint, Sand certainly not to compel the type of actions envisioned in Doyle's complaint. See, e.g., Collins, - U.S. at -, 112 S.Ct. at 1071; DeShaney, 489 U.S. at 198, 109 S.Ct. at 1005; Maldona do v. Josey, 975 F.2d 727, 729-30 (10th Cir.1992), cert. denied, - U.S. -, 113 S.Ct. 1266, 122 L.Ed.2d 662 (1993). It hardly merits mentioning because it is so obvious, that the same is true with respect to a claim that the state ought to do something to someone else. Cf. Linda R.S., 410 U.S. at 618-19, 93 S.Ct. at 1149; Leeke, 454 U.S. at 86-87, 102 S.Ct. at 70-71; Sattler, 857 F.2d at 227; Dohaish, 670 F.2d at 936-37. Doyle states no substantive due process claim.
2. Procedural - Due Process.
As indicated above, procedural due process does not prevent the state from depriving an individual of liberty or property. It only requires that a fair procedure be provided for the deprivation. The threshold requirement is a sufficient allegation by the plaintiff that the plaintiff possesses a liberty or property interest.
A property interest must be specific and presently enforceable. “To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must have a legitimate claim of entitlement to it.” Board of Regents v. Roth, 408 U.S. 564, 577, 92 5.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). The only attempts made by Doyle to identify a property interest of which he was allegedly deprived, arise for the.first time in his brief on appeal. Appellant’s Brief at 20-22. He argues: (1) that, like a driver’s license, the state issued him a license to complain, then revoked it when his grievance was not processed properly; (2) that if the lawyer was disciplined Doyle might be “reimbursed” by the Client Security Fund, or the Supreme Court might order “restitution;” and (3) if the lawyer was disciplined and, as a result, sought reinstatement, “restitution” might be required. These assertions of property rights (or “liberty” interests: the brief is not specific) can only be described as ludicrous. Neither Doyle’s complaint nor his newly-advanced arguments allege a constitutionally cognizable property interest.
“[A] state creates a protected liberty interest by placing substantive limitations on official discretion.” Olim v. Wakinekona, 461 U.S. 238, 249, 103 S.Ct. 1741, 1747, 75 L.Ed.2d 813 (1983). “[A]n individual claiming a protected [liberty] interest must have a legitimate claim of entitlement to it.” Kentucky Dep’t of Corrections v. Thompson, 490 U.S. 454, 459, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989) (emphasis added). An abstract desire or unilateral hope do not establish a protected’ interest. Id. “The most common manner in which a State creates a liberty 'interest” is not only “by establishing ‘substantive predicates’ to govern official decisionmaking...but “by mandating the outcome to he reached upon a finding that the relevant criteria have been met.” Id. at 462, 109 S.Ct. at 1909 (emphasis added).
The types of state created liberty interests asserted by Doyle are: (1) those relating to compliance by the general counsel and PRC with the Rules; (2) the policies and aims stated in the preamble to the rules creating the Bar (and other preambles referred to on appeal); (3) the right to have the Bar monitor attorneys so they will not make misrepresentations in court; and (4) state constitutional guarantees (Okla. Const., art. 2, §§ 6 and 7). Nothing in these claims identifies an Oklahoma statute, rule, regulation, preamble, or anything else which requires that “a particular outcome must follow” if certain predicates are met. Thompson 490 U.S. at 463, 109 S.Ct. at 1910 (emphasis added). That is, if investigations were conducted, disqualifications accomplished, no letter written to the Vice Chief Justice, outside counsel appointed, notices given, Vassar not involved, and so on, no particular outcome was mandated by the Rules, preambles, or state constitution. The PRC still retained the sole discretion to charge (and to define the charge), and multiple levels of discretion followed even if a formal complaint was filed. The fact that Doyle filed a grievance guaranteed him nothing under state law by way of a certain outcome with respect to the discipline or lack of discipline of another person.
In short, Doyle has asserted nothing more than a right to process. “Process is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement.” Olim, 461 U.S. at 250, 103 S.Ct. at 1748. The mere expectation of receiving a state afforded process does not itself create an independent liberty interest protected by the Due Process Clause. Id. at 250 n. 12, 250-61, 103 S.Ct. at 1748 n. 12, 1748; Velasco-Gutierrez v. Crossland, 732 F.2d 792, 798 (10th Cir.1984).
3. Summary.
The Rule stated above, that there is no constitutional right to have someone else prosecuted or disciplined, includes the fact that the investigatory powers conferred by the Oklahoma Supreme Court’s Rules were not established to serve the private purposes of grievants. See Dohaish, 670 F.2d at 937. The system is an aid to and part of the disciplinary process, an essential part of which is weeding out improper and unfounded claims of misconduct. The only person entitled to the due process which the Rules clearly provide is the lawyer who may be subject to license-related sanctions. See, e.g., Bell v. Burson, 402 U.S. 535, 539, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90 (1971).
Doyle’s admitted goal of somehow collaterally attacking a state court decree regarding custody and visitation rights, Complaint ¶ 22, Appendix to Appellant’s Brief at 9-10, is impossible and a blatant abuse of the regulatory process. The state court which issued the decree would in no way be bound by the outcome of a regulatory proceeding. Relief, if any is available, must be sought directly in the state court or on appeal from that court’s order. Cf. Leeke, 454 U.S. at 86, 102 S.Ct. at 70; Linda R.S., 410 U.S. at 618-19, 93 S.Ct. at 1149. Furthermore, if, as Doyle contends, he was injured by the perjury or misrepresentation of another, a civil action for that injury is recognized in Oklahoma. Perjury is also a crime in Oklahoma. Copeland v. Anderson, 707 P.2 d 560, 568 (Okla.Ct.App.1985). These are the only permissible avenues to redress Doyle’s injuries, if in fact any actionable misrepresentations occurred as he alleges. See Saier, 293 F.2d at 759.
We have considered every argument and claim made by Doyle, whether or not directly addressed herein. We reject them all. We hold that the complaint in this action does not allege the deprivation of any right under the Constitution of the United States.
C. SANCTIONS.
We have included more detail about Doyle's complaint and arguments than this case warrants because it explains our views regarding sanctions. It is entirely insufficient to describe this case as frivolous. Perhaps Doyle and his counsel were simply incompetent at the district court level; but after two amended complaints followed by the district court's ruling, they were abundantly on notice that the asserted causes of action were nonexistent in law under § 1983. Yet they have appealed and persisted on appeal in arguments which are utterly baseless, and patently inconsistent with a massive body of authority, as well as raising claims-all specious-not fairly raised in the complaint under review. We conclude that this appeal is both frivolous and vexatious.
In addition to our inherent power to impose sanctions upon litigants in order to regulate the court's docket, promote judicial efficiency, and deter frivolous filings, see, e.g., Roadway Express, Inc. v. Piper, 447 U.S. 752, 764-66, 100 S.Ct. 2455, 2463-64, 65 L.Ed.
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 28? Answer with a number.
Answer:
|
songer_source
|
J
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
M. T. STRAIGHT’S TRUST, Francis L. McCrea, Trustee, Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 15458.
United States Court of Appeals Eighth Circuit.
June 7, 1957.
Richard E. Williams, Des Moines, Iowa, for petitioner.
Melva M. Graney, Atty., Dept of Justice, Washington, D. C. (Charles K. Rice, Acting Asst. Atty. Gen., and Lee A. Jackson, Hilbert P. Zarky and Louise Foster, Attys., Dept, of Justice, Washington, D. C., were with her on the brief), for respondent.
Before STONE (retired), WOOD-ROUGH and VAN OOSTERIIOUT, Circuit Judges.
STONE, Circuit Judge.
Merton T. Straight was one-half owner of a partnership — the Adel Clay Products Company. December 31, 1945, he executed an instrument conveying irrevocably “Three-fourths of his half interest in the partnership” to trustees in trust for the benefit of his wife, a daughter and a son (with two sisters as ultimate contingent beneficiaries), one-third of the annual income therefrom to be paid to each of the three primary beneficiaries with provisions for payments to either of the two children in the discretion of the trustees. In view of the issues presented here, it is unnecessary to detail the provisions of this trust instrument in full. It declared the fullest control of the corpus as to investment, changing and treatment thereof in the trustees. The payments were to the wife, one-third of the income from the trust annually; and to each of the two children annually such part of the income, "but not exceeding one-third”, as the trustees may determine “is necessary for his [her] education, comfort and support”.
In 1946-1948, the trustees filed separate annual income tax returns for each of the three beneficiaries. The revenue officials challenged this method and insisted that there should be but one annual return to cover all of the three beneficiaries, thus treating the annual earnings of the trust as a unit for taxation purposes. We need not detail the various proceedings in connection with this controversy between the trustees and the tax officers as to whether this trust deed created three separate units or only one unit for national income tax purposes. It suffices to state that the trustees finally paid the claimed deficiencies on August 15, 1952, and, on August 15, 1952, filed a petition for refund in the Tax Court claiming that the trust deed created three separate trust estates for income tax purposes.
On August 13, 1953, in an Iowa State Court, Merton T. Straight filed a petition in equity for reformation of this trust deed to carry out his intention to establish separate trust estates — one each for his wife, for his daughter and for his son respectively. Neither the Commissioner nor any governmental officer or agency was made a party to this action; nor did such participate therein. On September 18, 1953, after trial, the Iowa Court entered a decree declaring that Straight had always thought and intended to create three separate trusts by the trust deed of December ■31, 1945; that the trustees had always thought and administered that deed as creating three separate trusts; had set up and maintained a separate set of accounts for each of the three trusts; had distributed to the three beneficiaries on that basis; and that the original trust deed was ambiguous.
To rectify this situation, the chancellor entered a decree approving three separate trust deeds — one for each of the primary beneficiaries; declared them to express the true intent of the grantor (Straight); and declared such substitution to relate back “nunc pro tunc” to the execution of the original trust deed.
September 20, 1954, petitioner filed an amended petition before the Tax Court. The amended petition set forth a resume’ of the reformation proceedings and prayed the Tax Court to determine that the original trust deed created three “separate and distinct taxable entities”; that the liabilities and deficiencies set forth in the Notice of Deficiency against the M. T. Straight Trust be eliminated; and that the reformation decree “is binding on the Commissioner of Internal Revenue, Respondent herein, in connection with the determination of the tax liability of the Petitioner for the calendar years 1947 and 1948”.
In the “Stipulation of Facts”, filed in the Tax Court (September 20, 1954) is the following: “The petitioner is not contesting the proposed deficiencies shown in the Notice of Deficiency on any ground other than that arising from respondent’s [Commissioner of Internal Revenue] determination that the trust conveyance of December 31, 1945, Exhibit 1-A, created an entity taxable for the years 1947 and 1948 as a single trust, despite the reformation proceedings in the Iowa courts referred to above in paragraphs 12 to 16, inclusive.”
June 14, 1955, the Tax Court entered its decision, determining tax deficiencies for the years 1947 and 1948 in the amounts of $3740.65 and $411.34 respectively. From that decision of the Tax Court, one of the trustees brings this petition for review.
The issues before the Tax Court and now before us are whether the name pro tunc reformation decree of the Iowa State Court is effective, for federal income tax purposes, from the date of the original trust deed of December 31, 1945. The Tax Court held that it was not effective for the years 1947 and 1948. The other issue is whether the original trust deed (December 31, 1945) created a single entity for income tax purposes.
We have no hesitation in declaring that the original trust instrument of December 31, 1945 provided for a single tax unit for federal income tax purposes. There is no dispute that this instrument provided for but one pair of trustees to whom was placed in trust one'corpus, described as “Three-fourths of his half interest in the partnership known as the Adel Clay Products Company”. There was no segregation of this into three trust entities. It was a single trust designating and conveying a definite single corpus. Clearly, the trust was to be administered as a unit without any separation into three separate trusts. The Commissioner was fully within his rights and duties in determining that the annual return for income tax purposes should cover the entire income from the trust as a single unit for national income tax purposes.
The remaining issue here is what effect has the Iowa decree of reformation retroactively on the tax years 1947 and 1948. We pass to consideration of the effect of the Iowa Court’s nunc pro tunc decree. The intention of that Court to include these tax years (1946-1948) is clear. The language of the decree “mmc pro tunc” is definite. The broad rule as to the effect of a reformation decree is that it relates back to the date of „the instrument reformed and is binding upon all except bona fide purchasers without notice “and those standing in similar relations” — in short, covering those who have acquired some legal rights which would be destroyed or injured by subsequent reformation nunc pro tunc. It is clear that the main object and effect intended by the taxpayer in bringing and prosecuting the Iowa case was to lessen the national income tax for the years involved. The annual loss of income would be the difference between the tax calculated upon the entire income as a taxable unit and the tax on the same amount of income treated as derived from three taxable units, each having one-third of the total income. The situation which determined the application of the income tax to these two years had occurred and become fixed before this reformation proceeding was filed. We believe it cannot be altered by a nunc pro tunc decree of a state court. The national revenue is not subject to such control.
We think that the Iowa decree cannot be effective retroactively to cover the two years — 1947 and 1948. We recognize that an unqualified reformation decree ordinarily reforms an instrument as of the date of the instrument reformed. Also, we recognize that property rights are subject to determination by State laws and therefore within the jurisdiction of the State Courts to declare. However, our issue here is more confined to a particular and narrow situation where the above general rules must give way.
The reformation of instruments is purely an equity remedy and its every application must lead to equitable results. We think that it is both inequitable and beyond the power of a State Court to change retroactively the status of a federal revenue measure with a resulting loss of revenue to the government. As said in Sinopoulo v. Jones, 10 Cir., 154 F.2d 648, at 650:
“The liability of appellant for the income tax chargeable to the income of the trusts for the years in question must be determined from the provisions of the trusts prior to their reformation by the state court. While the judgment of the state court made the reformation of the trusts retroactive and effective as of the date of the execution, this could not affect the rights of the government under its tax laws. It is a general rule that as between parties to an instrument a reformation relates back to the-date of the instrument, but that as to third parties who have acquired rights under the instrument, the reformation is effective only from the date thereof.”
The judgment of the Tax Court is affirmed.
. March 26, 1952, a Claim for Refund in respect to the 1946 tax payment was filed. Final action on this claim has been deferred pending decision in this proceeding now before us.
. For identification and distinction from the three separate deeds formed by the Iowa State Court, the parties have called the original trust deed dated December 31, 1945, the “M. T. Straight Trust”.
. Beckius v. Hahn, 114 Neb. 371, 207 N.W. 515, 44 A.L.R. 73.
. We are strictly confining this opinion and decision^ to the years — 1947 and 1948 — which are the only tax years involved.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
|
sc_issuearea
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
JORDAN, SECRETARY OF STATE OF CALIFORNIA, et al. v. SILVER.
No. 935.
Decided June 1, 1965.
Thomas C. Lynch, Attorney General of California, Charles E. Corker and Charles A. Barrett, Assistant Attorneys General, Sanford N. Gruskin, Deputy Attorney General, and Herman F. Selvin for appellants.
Phill Silver, appellee, pro se.
Per Curiam.
The motion of the appellant the Senate of the Legislature of California to take judicial notice of official judicial records is denied. The motion to strike the motion to dismiss or affirm is also denied. The motion to affirm is granted and the judgment is affirmed.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
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songer_state
|
22
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
MASSACHUSETTS ASSOCIATION OF OLDER AMERICANS, et al., Plaintiffs, Appellants, v. Alexander SHARP, II, etc., Defendant, Appellee.
No. 82-1592.
United States Court of Appeals, First Circuit.
Argued Jan. 7, 1983.
Decided Feb. 15, 1983.
Suzanne Harris, Cambridge, Mass., with whom Steven A. Hitov, New Rochelle, N.Y., was on brief, for plaintiffá, appellants.
Thomas Noonan, Deputy Gen. Counsel, Hyde Park, Mass., Dept, of Public Welfare, with whom Francis X. Bellotti, Atty. Gen., and E. Michael Sloman, Asst. Atty. Gen., Boston, Mass., Government Bureau, were on brief, for defendant, appellee.
Before COFFIN, Chief Judge, BOWNES and BREYER, Circuit Judges.
BOWNES, Circuit Judge.
Plaintiffs-appellants are a subclass consisting of approximately 4,400 families with stepchildren whose Medicaid and Aid to Families with Dependent Children (AFDC) has been terminated as a result of the stepparent liability provision recently added to the AFDC program. 42 U.S.C. § 602(a)(31) (as amended). Defendant-appellee is the Commissioner of the Department of Public Welfare of the Commonwealth of Massachusetts. Plaintiffs appeal from the district court’s denial of their motion for a preliminary injunction to prevent the termination of Medicaid. See 28 U.S.C. § 1292. We reverse.
The Medicaid program was established in 1965 as Title XIX of the Social Security Act to provide federal financial assistance to states choosing to reimburse needy persons for certain medical treatment costs. Act of July 30, 1965, Pub.L. No. 89-97, tit. I, § 121(a), 79 Stat. 343; see Schweiker v. Hogan,-U.S. --,-, 102 S.Ct. 2597, 2600, 73 L.Ed.2d 227 (1982). States are not required to participate in the program, but if they do, they must comply with all requirements imposed both by the Act itself and by regulations promulgated by the Secretary of the Department of Health and Human Services. See 42 U.S.C. § 1396; Schweiker v. Gray Panthers, 453 U.S. 34, 37, 101 S.Ct. 2633, 2636, 69 L.Ed.2d 460 (1981). A participating state must submit a plan for medical assistance that conforms to the requirements of 42 U.S.C. § 1396a. Massachusetts has chosen to participate in the Medicaid program. See Mass.Gen.Laws Ann. ch. 118E (West Supp. 1982).
A participating state is required to provide assistance to the “categorically needy” and may provide assistance to the “medically needy.” 42 U.S.C. § 1396a(a)(10); 42 C.F.R. §§ 435.100-.340 (1981). The categorically needy are those persons receiving federal aid through other federal cash assistance programs such as AFDC and Supplemental Security Income (SSI). 42 U.S.C. § 1396a(a)(10)(A). Also included in the categorically needy are those individuals who are excluded from AFDC because of an eligibility requirement that does not apply to the Medicaid program. The medically needy are persons who are unable to pay for medical expenses, but whose income is too large to qualify for aid under other federal financial assistance programs. See Schweiker v. Gray Panthers, 453 U.S. at 37, 101 S.Ct. at 2636.
The Act mandates that assistance provided to the categorically needy “shall not be less in amount, duration, or scope than the medical assistance made available to [the medically needy] .... ” 42 U.S.C. § 1396a(a)(10)(B)(ii). Congress imposed this preference for the categorically needy to ensure that those .most in need of assistance would receive it first and in amounts not less than that received by other individuals. Schweiker v. Hogan, - U.S. at - & n. 6, 102 S.Ct. at 2601 & n. 6.
Plaintiffs, as recipients of AFDC, were all eligible for and received Medicaid pursuant to the mandatory coverage of the categorically needy. The federal regulations governing Medicaid guarantee automatic enrollment in Medicaid upon qualification for AFDC and prohibit a state from requiring an additional Medicaid application from an individual receiving AFDC. 42 C.F.R. § 435.909(a) (1981). Plaintiffs, thus, have never filed a separate application for Medicaid.
In 1981 Congress, as part of the Omnibus Budget Reconciliation Act, P.L. No. 97-35, 95 Stat. 843, amended the AFDC Act to require that states include income of stepparents in determining a stepchild’s eligibility for AFDC. See 42 U.S.C. § 602(a)(31) (as amended). Prior to this amendment a stepparent’s income was not considered in the AFDC eligibility determination. The Medicaid Act specifically excludes stepparent’s income from eligibility determinations. 42 U.S.C. § 1396a(a)(17)(D).
Acting pursuant to this new AFDC provision, defendant in March 1982 began notifying plaintiffs, AFDC families containing stepchildren, that their AFDC benefits were being terminated. These notices also advised the families that their Medicaid benefits were ending. After many families were terminated, plaintiffs brought this action seeking to have their Medicaid benefits restored and to prevent further terminations.
Plaintiffs claim that the terminations were illegal because defendant failed to comply with federal regulations requiring the state welfare agency to redetermine eligibility on other grounds before termination. See 42 C.F.R. § 435.916(e) (1981). They admit that they are no longer automatically eligible for Medicaid as AFDC recipients. Nonetheless, they claim that most of them are still covered as categorically needy because stepparent income is an AFDC eligibility requirement specifically excluded from consideration in Medicaid eligibility.
Defendant responds that the regulations requiring a redetermination prior to termination do not apply to plaintiffs because they never independently qualified for Medicaid. Rather, defendant contends, the re-determination provisions cover only Medicaid recipients who applied for Medicaid directly and are not receiving it as a function of their eligibility for some other federal assistance program. Defendant argues that the proper course for plaintiffs is to make a new application for Medicaid.
The district court denied plaintiffs’ motion for a preliminary injunction. The court’s denial was based on its belief that any harm suffered by the plaintiffs could be avoided in the main by application for Medicaid benefits. The court conditioned its denial on defendant’s sending notices to all plaintiffs informing them of the reasons for their termination from AFDC and Medicaid and advising them that they could still apply for Medicaid benefits.
In determining whether to grant a preliminary injunction the court must consider four criteria:
“(1) [whether] plaintiff will suffer irreparable injury if the injunction is not granted; (2) [whether] such injury outweighs any harm which granting injunctive relief would inflict on the defendant; (3) [whether] plaintiff has exhibited a likelihood of success on the merits; and (4) [whether] the public interest will not be adversely affected by the granting of the injunction.”
Auburn News Co., Inc. v. Providence Journal Co., 659 F.2d 273, 277 (1st Cir.1981) (quoting Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d 1006, 1009 (1st Cir.1981)), cert. denied, 455 U.S. 921, 102 S.Ct. 1277, 71 L.Ed.2d 461 (1982). While each of these factors must be considered, “the probability-of-success component has loomed large in cases before this court.” Auburn News Co., Inc. v. Providence Journal Co., 659 F.2d at 277.
At the appellate level our review is limited. The decision to grant or deny a preliminary injunction is generally left to the discretion of the district court, and we will reverse only if the district court abused its discretion or if the denial was based on a clear error of law. See Massachusetts Association for Retarded Citizens, Inc. v. King, 668 F.2d 602, 607 (1st Cir.1981); Massachusetts Coalition of Citizens with Disabilities v. Civil Defense Agency, 649 F.2d 71, 74 (1st Cir.1981); Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d at 1009.
We think that the district court committed a clear error of law by failing to examine all of the criteria relevant to a determination of whether a preliminary injunction should issue. In particular, the district court failed to examine the legal arguments raised by the parties. In so doing, it failed to make the required appraisal of the plaintiffs’ likelihood of success on the merits. We think that an examination of the merits so clearly indicates that the plaintiffs will prevail that an injunction should issue on their behalf.
We briefly reiterate the legal claims raised by the parties. Plaintiffs contend that the federal regulations governing the Medicaid program require the defendant to redetermine their eligibility prior to terminating their Medicaid benefits. That is, although they are no longer automatically eligible for Medicaid as recipients of AFDC, the defendant, before terminating their benefits, must reexamine the relevant eligibility criteria and determine whether they qualify for Medicaid under some other eligibility category.
In support of their argument plaintiffs rely primarily on two regulations. Both regulations appear in a single subpart: “Eligibility in the States and the District of Columbia.” The first of these, 42 C.F.R. § 435.916 (1981), comes under the heading “Redeterminations of Medicaid Eligibility.” Section 435.916 requires that the state agency responsible for administering the Medicaid program must promptly redetermine eligibility when it receives information about changes in a recipient’s circumstances that may affect his or her eligibility. 42 C.F.R. § 435.916(c)(1) (1981).
The second regulation is found in the section entitled “Furnishing Medicaid.” This regulation requires the state agency to continue to furnish Medicaid to all eligible individuals until they are found to be ineligible. Plaintiffs argue that, taken together, these regulations require the state agency, once it receives possibly disqualifying information, to continue to furnish benefits until it determines that a recipient is ineligible under any possible method of qualifying for benefits.
Defendant disputes this interpretation of the regulations. He argues that section 435.916(c)(1) covers only individuals who have directly applied for Medicaid and claims that the redetermination procedure “only makes sense” if the state agency has a separate Medicaid application on file. His argument boils down to essentially one of administrative convenience.
As to section 435.930, defendant agrees that this regulation requires the state agency to continue to furnish Medicaid benefits until a recipient is found to be ineligible. Defendant argues, however, that the agency satisfied this requirement because it only discontinued benefits upon learning of plaintiffs’ ineligibility for automatic Medicaid coverage due to their loss of AFDC benefits. Defendant sees no interrelationship between sections 435.916 and 435.930 with respect to these plaintiffs. He argues that the agency was not required to do anything upon learning of plaintiffs’ loss of AFDC benefits because this made plaintiffs automatically ineligible for Medicaid and did not trigger a redetermination process. We do not agree.
In Stenson v. Blum, 476 F.Supp. 1331 (S.D.N.Y.1979), aff’d without opinion, 628 F.2d 1345 (2d Cir.), cert. denied, 449 U.S. 885,101 S.Ct. 239, 66 L.Ed.2d 111 (1980), the District Court for the Southern District of New York was confronted with an issue that is nearly identical to the one presented in this case. In Stenson the plaintiffs, a class consisting of recently terminated SSI recipients, sought a preliminary injunction to prevent the state Department of Social Services from suspending their Medicaid benefits until their eligibility was redetermined and, if they were ineligible, until they were afforded notice and an opportunity for a hearing. Id. at 1333. SSI recipients, as is so with the present plaintiffs, are mandatorily covered categorically needy individuals for the purposes of the Medicaid Act. The plaintiffs relied primarily on the same regulations that are dispositive in the present case.
In a comprehensive and well-reasoned opinion, Judge Sweet concluded that these regulations require the state agency, upon receipt of notification of an individual’s termination from SSI, to reconsider the recipient’s eligibility for Medicaid benefits. Pending this ex parte determination the state must continue to furnish such individuals with Medicaid benefits, and if it determines that an individual is ineligible, it must give notice and an opportunity for a hearing before termination. Id. at 1339-41. The court explained that these regulations apply to individuals who qualified for Medicaid under any eligibility category. Id. at 1339.
We agree with the Stenson court’s conclusion as appropriate to the case before us. Nothing in the relevant regulations evidences an intent to exclude from coverage individuals who automatically qualified for Medicaid as categorically needy. Indeed, the regulatory and statutory scheme points to the opposite conclusion. The regulatory provisions are included in the subpart which “sets forth requirements for processing applications, determining eligibility, and furnishing Medicaid.” 42 C.F.R. § 435.900 (1981). That automatically eligible recipients are covered in this subpart is clear from the inclusion of the regulation prohibiting separate Medicaid applications from AFDC recipients. Moreover, the mere determination that these plaintiffs are “disqualified” from AFDC eligibility cannot in and of itself amount to a speedy “redetermination" of their eligibility for Medicaid within the meaning of the regulations. To the contrary, the regulations suggest that the applicants are still “categorically needy,” since the reason for their disqualification (stepparent income deeming) is expressly made irrelevant to Medicaid eligibility. See 42 U.S.C. § 1396a(a)(17)(D); 42 C.F.R. § 435.113.
Our conclusion is also supported by the Medicaid statute itself. Congress mandated that the assistance provided to the mandatorily covered categorically needy cannot be less in “amount, duration, or scope” than the assistance provided to other needy groups. 42 U.S.C. § 1396a(a)(10)(B)(ii). This provision reflects the congressional preference accorded the categorically needy; they are to receive assistance first and in no less comprehensive a form because they are “persons whom Congress considered especially deserving of public assistance . . .. ” Schweiker v. Gray Panthers, 453 U.S. at 37,101 S.Ct. at 2636; see also Schweiker v. Hogan,-U.S. at- & n. 6, 102 S.Ct. at 2601 & n. 6. Thus congressional intent leads to the conclusion that any procedural protections that ensure continuity in benefits should be accorded to the categorically needy.
We conclude that plaintiffs have made an extremely strong showing of likelihood of success gn their claim that defendant terminated their Medicaid benefits without following the requisite regulations. Plaintiffs argue that given this strong showing of likelihood of success on the merits, their burden of showing irreparable injury should be commensurately reduced. See Massachusetts Coalition of Citizens with Disabilities v. Civil Defense Agency, 649 F.2d 71, 75 (1st Cir.1981). We need not consider this, however, because plaintiffs have made a sufficient showing of irreparable harm.
Plaintiffs presented affidavits of several class members who, since termination, have been financially unable to obtain necessary medical treatment. Termination of benefits that causes individuals to forgo such necessary medical care is clearly irreparable injury. See Becker v. Toia, 439 F.Supp. 324, 336 (S.D.N.Y.1977); Bass v. Richardson, 338 F.Supp. 478, 489 (S.D.N.Y. 1971). At oral argument counsel for defendant admitted that the plaintiffs would be eligible for Medicaid unless their income drastically increased or the children reached the age of twenty-one. An increase in income for any of these plaintiffs sufficient to render them ineligible for Medicaid would be a minor miracle; reaching the age of twenty-one for most of the children is not actuarially possible within the time limits of this case. Defendant’s claimed injury from the loss of public funds to ineligible individuals is, in reality, no injury at all, just a remote possibility of injury. Thus the harm to plaintiffs far outweighs that of defendant and a preliminary injunction must issue.
The order of the district court denying preliminary injunctive relief to the subclass of plaintiffs is vacated. The case is remanded to the district court with instructions to issue forthwith a preliminary injunction reinstating the Medicaid benefits of the subclass of plaintiffs until the defendant complies with the statutory and regulatory provisions requiring redetermination of Medicaid eligibility prior to termination of benefits and affords plaintiffs their requisite fair hearing rights if they are found ineligible.
So ordered.
. Defendant’s claim that plaintiffs never applied for Medicaid benefits is simply incorrect. Since the federal regulations prohibit a state from requiring a separate application for Medicaid from AFDC recipients, an AFDC application once granted is an application for Medicaid. See Dixon v. Quern, 537 F.Supp. 983, 988 (N.D.I11.1982).
. The parties stipulated that since defendant’s issuance of notices in compliance with the district court’s order, only 82, or 1.86%, of the 4,400 terminated families have had their Medicaid benefits restored.
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_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.
FLYNN ex rel. YOUNG QUONG ON v. TILLINGHAST, Commissioner of Immigration.
No. 2760.
Circuit Court of Appeals, First Circuit.
Feb. 18, 1933.
MORTON, Circuit Judge, dissenting.
Everett Flint Damon, of Boston, Mass. (A. Warner Parker, of Washington, D. C., on the brief), for appellant.
John W. Schenck, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Boston, Mass., on the brief), for appellee.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
WILSON, Circuit Judge.
The issue in this class of eases where admission is denied is (3) whether tho applicant was given a fair hearing, that is, was permitted to introduce all the evidence he desired and have it made a part of tho record of the administrative board before which his ease was heard; (2) whether there was an entire lack of convincing evidence, or any substantial evidence contra, on which the conclusion of the immigration officials could rest.
The burden of proving his right to enter the country as a citizen is on the applicant. This burden involves satisfying the immigration officials, "who have the sole power to determine the credibility of witnesses, and the weight of the evidence as to the facts entitling the applicant to enter as a citizen. The conclusion of a Special Inquiry Board may rest, therefore, on a lack of evidence of sufficient weight in the minds of the members to carry conviction.
Bearing in mind that they have the power to determine the credibility of witnesses, and whether the evidence has sufficient weight to sustain the burden on the applicant, to reverse a decision of the immigration officials refusing admission to an applicant, and of the District Court in denying a petition for habeas corpus, this court must find that the evidence in favor of the applicant is so clear and convincing that the immigration officials must have acted arbitrarily in rejecting the evidence in favor of the applicant because in their opinion the witnesses for the applicant were unworthy of belief, or in finding ,that all the evidence in applicant’s favor did not satisfy the members of the board that the applicant was a citizen of this country.
It is often difficult to determine, not only what evidence the immigration officials rejected as unworthy of belief and on what ground, but also what weight they attached to the evidence in favor of or against the applicant.
The question is not what this court would have found on the evidence that appears in the printed record. • The Supreme Court said, in Chin Yow v. United States, 208 U. S. 8, at page 13, 28 S. Ct. 201, 203, 52 L. Ed. 369: “But, unless and until it is proved to the satisfaction of the judge that a hearing properly so called was denied, the merits of the case are not open,, and, we may add, the denial of a hearing cannot be established by proving that the decision was wrong.” U. S. ex rel. Vajtauer v. Commissioner of Immigration, 273 U. S. 103, 106, 47 S. Ct. 302, 71 L. Ed. 560; Tisi v. Tod, 264 U. S. 131, 133, 44 S. Ct. 260, 68 L. Ed. 590.
The conduct of the hearing and the conclusion of the immigration officials must be so clearly arbitrary and unfair as to amount to a denial of due process. Tang Tun v. Edsell, 223 U. S. 673, 681, 32 S. Ct. 359, 56 L. Ed. 606.
Upon the evidence as it appears in the printed case, a court exercising judicial powers might have decided that the applicant was a son of a citizen of this country. Six different witnesses stated that the alleged father, Quong Yuen, alias Young Quong Yuen, had a son, by name Quong On, or referred, to him by that name, three of whom were not related, but were testifying in support of the applicant on the other occasions, when he was deported. A brother of the alleged father and one son also testified, in other proceedings, that Quong Yuen had a son, by name Quong On.
The alleged father and a younger brother of the applicant stated that there was a picture of the alleged father and the applicant framed and hanging on the walls of the home in China, which the applicant at first denied and said he was never photographed with any other member of his family. After the evidence was closed, the infimigration board opened the case to permit the offering of the photograph, which the alleged father claimed to have had forwarded from China. The picture was identified by the applicant and the younger brother as that of the alleged father and the applicant. The father said the photograph was taken at Hong Kong in 1911, or just before the.first application for admission by this applicant, though it does not appear to have been produced in support of that application. While the applicant on his first examination in this ease insisted that there was no such photograph, when it was produced he remembered with considerable detail that it was taken sixth month S. H. 3; or just before he sailed for Vancouver in 1911. He recalled how he and his alleged father went to Hong Kong, and where they stayed; that he had his passport photograph taken at the same time; that their costumes were furnished by the photographer, whose name he remembered, and also the route by which they returned home. Such plethora of detail of an event of which he remembered nothing a short time before may have raised a suspicion in the minds, of the immigration officials that whoever wrote him that his case was to be reopened may have given him more ■information.
If the immigration officials believed all these witnesses and there was no discrediting evidence, they could have found that the applicant was the son of an American citizen; the citizenship of Quong Yuen being admitted.
Upon what grounds then, may the Board of Inquiry have denied the applicant’s right to enter? In the first place, this was. the applicant’s third application, he having been twice rejected before, first in 1911 and again in 1923. On his previous applications, the alleged father and the applicant gave their names as Quong Yuen and Quong On. They now claim the family name is Young. An alleged uncle of the applicant and all the uncle’s family go by the family name of Quong. Standing alone, a Chinese name would have little significance, though the family name is considered of great importance in China, as the deceased members of the family are objects of reverent worship. No adequate explanation of this change of name was made.
The applicant testified that he worked on his father’s farm, which consisted of five ows of land in one parcel, and was working on it during one of his father’s visits to China. The alleged father testified that he had no single parcel as large as five ows, but his farming land consisted of several smaller parcels, and that at none of his visits did the applicant work on the land farming. The applicant, after his denial of admission in 1923, lived in what is called the Straits Settlement. The alleged father says he wrote to him while there at least two letters each year, and received at least one letter each year from the applicant. The applicant testified he neither wrote his father during that time nor received any letters from him. These discrepancies by themselves, however, we deem of minor importance.
But the immigration board may have properly attached considerable weight to the evidence of the applicant, the alleged father, and the alleged uncle and his family as to the date and place of the death of the paternal father and mother of the alleged father. Ancestor worship is a well-known and deep-rooted custom in China, and the younger generations hold in reverence their forbears, especially after their decease. One would have a right, therefore, to expect some degree of accord in the family testimony as to the date and place of death of the parents and grandparents, and their place of burial.
Here, however, appears a striking inconsistency which may have resulted in the immigration officials giving little, if any, credence to the evidence of many of the witnesses, as. their testimony cannot be harmonized.
The applicant states that he saw both his paternal grandfather and grandmother; that they lived in a house in the sixth row in the village, which now, if not during their lifetime, belongs to his alleged father; that his grandfather died first and his grandmother about a year before his application in 1911.
At the time of his application in 1911, when 18 or 19 years old, the applicant testified that his grandfather was then living and his grandmother was dead; he now says they both died about twenty years ago, and the grandfather died first; that they were both buried in Gong Bing How, with a stone at each grave; that his grandmother’s stone is marked Hor She though both he and his alleged father have previously testified that her name was Look She.
The applicant at the first hearing said both grandparents died in the house in the sixth row in Ng Young Village. On his second application, he said they died in the house in the seventh row where his parents resided, but now says the grandparents died in the house in the sixth row.
The alleged father, however, says his mother, the grandmother of the applicant, died before the applicant was born; that his father died about 1900, in the house in the sixth row and not in the seventh, as the applicant has stated. Both agree that the paternal grandfather and grandmother of the applicant were buried in Gong Bing How.'
The blood brother of the alleged father and all his family have testified on other occasions that the parents of the alleged father and the alleged uncle died in Kim Goo Village, and were buried in War Long How, and their graves were not marked.
The applicant says the name of his grandfather was Young Yoke Toy and his grandmother’s name was Hor She; the alleged uncle’s family say the grandfather’s name was Quong Young Wah or Wai, and the grandmother’s name was Look She.
Certainly a blood brother of the alleged father and the brother’s children should know the names of the paternal ancestors, where and when they died, and whore they were buried, and how their graves were marked, equally as well as the applicant and his alleged father. Both cannot be right. The immigration officials must have been obliged to reject one or the other as unworthy of belief.
If the applicant’s grandmother died before he was born, he could not have seen her. His testimony and that of the alleged father as to the time of her death cannot be reconciled. Bearing in mind that in 1911 the applicant was 18 years old when he testified as to their death but a short time previous, while the father says his mother died before 1894 and the father about 1900, the immigration officials cannot be said to have been arbitrary in also rejecting one or the other of these witnesses as unworthy of belief. The applicant was testifying in 1911-as to what he said were recent 'occurrences. The father said they had occurred from ten to twenty years before.
It is quite evident that the immigration officials could not have given credence to both the testimony of the uncle’s family and that of the alleged father and the applicant; and that there were such discrepancies in the testimony of the alleged father and this applicant that also warranted the rejection of the testimony of one or the other. Granted the power to determine which, if any, of these witnesses the immigration officials did believe, we do not think it can be said they' acted arbitrarily in concluding finally that the evidence did not satisfy them that the applicant was the son of Young Quong Yuen.
If the officials found that the alleged fa- • ther or the applicant, or both, were not worthy of belief, they might have given little weight to’ the photograph alleged to have been taken just before 'the first application was made. At least, they expressly found it was not of sufficient weight to overcome the other adverse testimony. .
In case there is a practice of bringing in Chinamen under a fraudulent claim of relationship, as the numerous cases rejected and the careful scrutiny of the claims would indicate, the determination of relationship from photographs as between members of the Chinese race is not an entirely safe guide on which to rely. If the board found that the testimony of these witnesses could not be relied on, the photograph proves no more than at some time Young Quong On, alias Quong On, accompanied Young Quong Yuen, alias,.-Quong Yuen, to Hong Kong, where ■they, had -their photograph taken together.
The decree of the District Court 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:
|
songer_appel1_7_3
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the race or ethnic identity of this litigant as identified in the opinion. Names may be used to classify a person as hispanic if there is little ambiguity. All aliens are coded as "not ascertained".
UNITED STATES of America, Plaintiff-Appellee, v. Edgar QUAN-GUERRA, Defendant-Appellant.
No. 90-10074.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Jan. 14, 1991.
Decided April 4, 1991.
Robert J. McWhirter, Asst. Federal Public Defender, Phoenix, Ariz., for defendant-appellant.
Stanley Patched, Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellee.
Before TANG, BOOCHEVER and NOONAN, Circuit Judges.
OVERVIEW
TANG, Circuit Judge:
Edgar Quan-Guerra was found guilty of possessing a weapon in prison. The district court fined Quan-Guer-ra $500. Quan-Guerra appeals his fine. We affirm.
FACTUAL AND PROCEDURAL HISTORY
Edgar Quan-Guerra was serving time in prison when he was found in possession of a shank. After the jury convicted him for this unlawful possession, the district court sentenced him according to the Sentencing Guidelines. The court found that Quan-Guerra was “financially unable to pay a fine within the guideline range, but that he would be financially able to pay a lesser fine.” The court fined Quan-Guerra $500.
Quan-Guerra informed the probation officer, in connection with the presentence report, that he had no assets or liabilities. He also informed the probation officer that his income was limited to his salary from prison employment.
On September 25, 1989, Quan-Guerra filled out a financial affidavit to secure the services of the public defender. In it he stated he had no assets, no debts, and was not employed. Quan-Guerra argues that the district court erred in assessing a $500 fine.
STANDARD OF REVIEW
We review the legality of a criminal sentence de novo. United States v. Rafferty, 911 F.2d 227, 229 (9th Cir.1990). However, we “give due deference to the district court’s application of the guidelines to the facts.” 18 U.S.C. § 3742(e); United States v. Howard, 894 F.2d 1085, 1087 (9th Cir.1990). We review the district court’s findings of fact for clear error. Howard, 894 F.2d at 1087.
DISCUSSION
Quan-Guerra argues that the fine is inappropriate because no evidence on the record demonstrates his ability to pay the fine. When the record demonstrates unequivocally that the defendant is indigent, the district court is required to determine whether the defendant has the ability to pay any fine which might be imposed. United States v. Seminole, 882 F.2d 441, 443 (9th Cir.1989). Where the record is silent as to the defendant’s earning capacity, this court will remand to the district court for this determination. Id. Further, our precedent and the Sentencing Guidelines establish that the defendant has the burden of proof to demonstrate that he cannot pay the fine imposed by the court. United States v. Rafferty, 911 F.2d at 232.
Here, the district court found that Quan-Guerra does not have the ability to pay the $3,000 to $30,000 fine mandated by the Sentencing Guidelines. The district court found that Quan-Guerra will be able to pay a lesser fine of $500. Evidence in the record supports this finding. The presen-tence report establishes that Quan-Guerra has no debts and has prison employment. No impediment to his earning capacity is shown. Quan-Guerra presented no evidence that he would not be able to pay a $500 fine whereas the district court’s decision is supported by the record. He did not meet his burden of proving that he could not pay the fine ordered or is likely to become unable to pay, over a period of time, the fine ordered. The district court did not err in assessing the $500 fine.
Relying on United States v. Walker, 900 F.2d 1201, 1206 (8th Cir.1990), Quan-Guerra asserts that the district court must make findings on the record which demonstrate that the sentencing court has taken into account all the factors that, in assessing a fine, the court is required to take into consideration under the Guidelines. Our review of the record satisfies us that the district court considered all required factors in evaluating Quan-Guerra’s ability to pay this fine. See Guideline § 5E1.2(d). Moreover, Quan-Guerra has failed to meet his burden of establishing his inability presently to pay the fine or that he is likely to become unable to pay all or part of the fine over a period of time. See Guideline § 5E1.2(f).
CONCLUSION
The district court made the required finding that Quan-Guerra had the ability to pay the $500 fine imposed. That finding is supported by the record.
The judgment of the district court is
AFFIRMED.
. Quan-Guerra erroneously focuses solely on the current state of his assets. However, Quan-Guerra’s future earning capacity is relevant to the district court’s inquiry as to his ability to pay the fine. See Guideline §§ 5E1.2(d)(2) and 5E1.2(f). Quan-Guerra has not established that his future income will be insufficient to pay the fine of $500.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the race or ethnic identity of this litigant as identified in the opinion?
A. not ascertained
B. caucasian - specific indication in opinion
C. black - specific indication in opinion
D. native american - specific indication in opinion
E. native american - assumed from name
F. asian - specific indication in opinion
G. asian - assumed from name
H. hispanic - specific indication in opinion
I. hispanic - assumed from name
J. other
Answer:
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songer_treat
|
I
|
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.
DIRECT TRANSIT LINES, Inc. v. LOCAL UNION NO. 406, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA, A. F. OF L., et al.
No. 11700.
United States Court of Appeals Sixth Circuit.
Oct. 21, 1952.
Clark, Klein, Brucker & Waples, Detroit, Mich., for petitioner.
Before SIMONS, Chief Judge, and MARTIN and McALLISTER, Circuit Judges.
PER CURIAM.
The Direct Transit Lines, Inc., has filed recently in this court a petition for writ of mandamus, to be directed to the United States District Judge for the Western District of Michigan, praying that the Judge be directed to vacate an order entered by him on July 3, 1952, and directing him to remand this cause to the Circuit Court of Kent County, Michigan, from which it was brought to the United States District Court by removal.
The petitioner has filed a carefully prepared brief in support of its petition and has cited many authorities which have been duly considered, along with numerous authorities including opinions of this court which are not cited by the petitioner. The gravamen of the petition is that the district court erred in holding that it has jurisdiction of the subject matter, in that it had no original jurisdiction in the premises; and, moreover, that error was committed by the district court in holding that the petitioner could not amend its complaint so as to divest the district court of jurisdiction after the cause had been removed to the United States District Court.
The original complaint filed by petitioner in the state circuit court sought an injunction against described unlawful acts alleged to have been committed by Local Union No. 406, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., District Council No. 43 and its members. The complaint also sought $50,000 damages against the defendants.
On February 5, 1952, the district judge denied the motion of Direct Transit Lines, Inc., to remand to the state court, and filed an opinion supporting his action. Whereupon, on February 7, 1952, the petitioner amended its bill of complaint by deleting therefrom the paragraph in which it sought $50,000 damages and filed a second motion to remand, in reply to which the district court filed a carefully considered opinion denying the motion.
Two basic grounds were given by the district court as the basis of its ruling: (1) that there was presented a controversy affecting interstate commerce and that a federal question was involved, in that the Labor Management Relations Act of 1947 [commonly called the Taft-Hartley Act], 29 U.S.C.A. § 141 et seq,, was applicable; and (2) that at the time of the removal of the cause to the United States District Court the complaint demanded $50,000 damages, bringing it plainly within section 303 of the Labor Management Relations Act and thereby unquestionably sustaining the jurisdiction of the United States District Court to try the cause.
We think it true, as asserted by the district judge, that the cause should not be remanded if it were properly removable upon the record as it stood at the time of the filing of the petition for removal. See Brown v. Eastern State Corporation, 4 Cir., 181 F.2d 26, 28, certiorari denied 340 U.S. 864, 71 S.Ct. 88, 95 L.Ed. 631. See also Pocohontas Terminal Corporation v. Portland Building & Construction Trade Council, D.C.S.D.Me., 93 F.Supp. 217. In the instant case, it should be observed that, at the time of the removal, the petitioner was-demanding $50,000 damages, as well as injunctive relief, and it was only after the district judge had first denied the motion to remand that the petitioner withdrew, by amendment, its demand for damages.
Even apart from the claim of petitioner for damages as a basis for jurisdiction in the district court, we think the court had jurisdiction, inasmuch as the Labor Management Relations Act of 1947 is directly involved in the situation shown by the record to be a controversy involving interstate commerce. See especially section 8(b) (1) of the Labor Management Relations Act, 29 U.S.C.A. § 158(b) (1).
Paragraph six of the complaint avers, inter alia, that the defendants have indulged in conduct intended to harass and hinder the petitioner company in the operations of its lawful business, in order to force it to coerce its employees to> join the defendant union. In re Winn, 213 U.S. 458, 29 S.Ct. 515, 53 L.Ed. 873, is emphasized by petitioner as controlling authority. In that case, the Supreme Court declared that writs of mandamus must not be permitted to' usurp the functions of writs of error or appeals, and that it is only in cases made clear by the record that, as a matter of law, the federal court is without jurisdiction fio take any action whatever that a writ of mandamus should be issued, remanding a cause removed from the state court to the federal court. The ultimate test was said to be whether the action could have been originally brought in the federal court. If so, jurisdiction should be retained.
The following cited cases, among others, have been considered and the principles derived from them support, in our opinion, the conclusion which we have reached. Ex parte Harding, 219 U.S. 363, 31 S.Ct. 324, 55 L.Ed. 252; In re Cleland, Petitioner, 218 U.S. 120, 30 S.Ct. 647, 54 L.Ed. 962; Matter of Riggs, 214 U.S. 9, 29 S.Ct. 598, 53 L.Ed. 887. Two of our own previously published opinions may be helpful in considering the appropriate exercise by an appellate court of the peremptory writ of mandamus. State of Tennessee v. Taylor, 6 Cir., 169 F.2d 626; Youngblood v. United States, 6 Cir., 141 F.2d 912.
The petition for writ of mandamus is denied.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
sc_decisiondirection
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
MARYLAND v. MACON
No. 84-778.
Argued April 17, 1985
Decided June 17, 1985
O’Connor, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Powell, Rehnquist, and Stevens, JJ., joined. Brennan, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 472.
Deborah K. Chasanow argued the cause for petitioner. With her on the briefs were Stephen H. Sachs, Attorney General of Maryland, and Anne E. Singleton, Assistant Attorney General.
Burton W. Sandler argued the cause for respondent. With him on the brief was Joseph L. Gibson.
Solicitor General Lee, Assistant Attorney General Trott, and Deputy Solicitor General Frey filed a brief for the United States as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the American Booksellers Association, Inc., et al. by Michael A. Bamberger and Shirley Adelson Siegel; and for the American Civil Liberties Union by Burt Neubome.
Justice O’Connor
delivered the opinion of the Court.
This case requires us to decide whether allegedly obscene magazines purchased by undercover officers shortly before the warrantless arrest of a salesclerk must be excluded from evidence at the clerk’s subsequent trial for distribution of obscene materials. Following a jury trial in the Circuit Court of Prince George’s County, Maryland, respondent was convicted of distribution of obscene materials in violation of Md. Ann. Code, Art. 27, § 418 (1982). The Maryland Court of Special Appeals reversed the conviction and ordered the charges dismissed on the ground that the magazines were improperly admitted in evidence. 57 Md. App. 705, 471 A. 2d 1090 (1984). The Maryland Court of Appeals denied cer-tiorari. 300 Md. 795, 481 A. 2d 240 (1984). We granted cer-tiorari, 469 U. S. 1156 (1985), to resolve a conflict among the state courts on the question whether a purchase of allegedly obscene matter by an undercover police officer constitutes a seizure under the Fourth Amendment. Finding that it does not, we reverse.
I
On May 6, 1981, three Prince George’s County police detectives went to the Silver News, Inc., an adult bookstore in Hyattsville, Maryland, as part of a police investigation of adult bookstores in the area. One of the detectives, who was not in uniform, entered the store, browsed for several minutes, and purchased two magazines from a clerk, Baxter Macon, with a marked $50 bill. The detective left the store and showed the two magazines to his fellow officers who were waiting nearby. Together they concluded that the magazines were obscene under the criteria previously used by them in warrant applications. The detectives returned to the store, arrested respondent Macon, who was the only attendant in the store, and retrieved from the cash register the $50 bill that had been used to make the purchase. The officers neglected to return the change received at the time of the purchase. Respondent escorted the remaining customers out and closed the bookstore before leaving with the detectives.
Prior to trial, Macon moved to suppress the magazines purchased by the officers and the $50 bill used to make the purchase. App. 21. The trial judge denied the motion on the grounds that the purchase was not a seizure within the meaning of the Fourth Amendment and that the warrantless arrest was lawful. Id., at 52. The magazines, but not the $50 bill, were subsequently introduced in evidence at trial. The jury found respondent guilty of distributing obscene materials. Respondent appealed, contending that a prior judicial determination of probable cause to believe the matter distributed was obscene was required to sustain a seizure and an arrest on charges related to obscenity. Absent such a determination, respondent argued, the allegedly obscene materials must be suppressed and the charges must be dismissed. Respondent did not challenge the jury’s finding that the magazines were obscene.
The Maryland Court of Special Appeals agreed that a warrant is required both to seize allegedly obscene materials and to arrest the distributor in order to provide a procedural safeguard for the First Amendment freedom of expression. 57 Md. App., at 710, 471 A. 2d, at 1092. In cases involving First Amendment rights, the court reasoned, Fourth Amendment safeguards, including suppression of material acquired in connection with a warrantless arrest, must be applied more stringently. Ibid. The court determined that the purchase of the magazines was a “constructive” seizure and that the proper remedy was to exclude the magazines from evidence at the subsequent trial. Id., at 716, 471 A. 2d, at 1096. Alternatively, the court held that the warrant-less arrest of respondent on obscenity charges required the exclusion of the publications from evidence. Id., at 719, 471 A. 2d, at 1097. The court accordingly reversed the conviction and ordered that the charges be dismissed because without the magazines the evidence was insufficient to sustain a conviction. Ibid.
By holding that the purchase constituted a seizure within the meaning of the Fourth Amendment, the Maryland Court of Special Appeals rejected the position taken by the majority of state courts that have considered the issue. In evaluating the undercover purchase of allegedly obscene materials, most state courts have treated as self-evident the proposition that a purchase by an undercover officer is not a seizure, regardless of whether the funds used to make the purchase are later retrieved as evidence. See, e. g., Baird v. State, 12 Ark. App. 71, 671 S. W. 2d 191 (1984) (en banc); Wood v. State, 144 Ga. App. 236, 240 S. E. 2d 743 (1977), cert. denied, 439 U. S. 899 (1978); People v. Ridens, 51 Ill. 2d 410, 282 N. E. 2d 691 (1972), vacated and remanded on other grounds, 413 U. S. 912 (1973); State v. Welke, 298 Minn. 402, 216 N. W. 2d 641 (1974); State v. Perry, 567 S. W. 2d 380 (Mo. App. 1978); State v. Dornblaser, 26 Ohio Misc. 29, 267 N. E. 2d 434 (1971); Cherokee News & Arcade, Inc. v. State, 533 P. 2d 624 (Okla. Crim. App. 1974). But see State v. Furuyama, 64 Haw. 109, 637 P. 2d 1095 (1981) (reaching the contrary conclusion).
For the reasons set forth below, we conclude that the officer’s entry into the bookstore and later examination of materials offered for sale there did not constitute a search and that the purchase of two magazines did not effect a seizure. We do not decide whether a warrant is required to arrest a suspect on obscenity-related charges, because the magazines at issue were not the product of the warrantless arrest. Because we hold that the magazines were properly admitted in evidence at trial, we also do not address respondent’s contention that the Double Jeopardy Clause bars retrial.
II
The central issue presented is whether the magazines purchased by the undercover detectives before respondent’s arrest must be suppressed. If the publications were obtained by means of an unreasonable search or seizure, or were the fruits of an unlawful arrest, the Fourth Amendment requires their exclusion from evidence. If, however, the evidence is not traceable to any Fourth Amendment violation, exclusion is unwarranted. See United States v. Crews, 445 U. S. 463, 472 (1980).
A
The First Amendment imposes special constraints on searches for and seizures of presumptively protected material, Lo-Ji Sales, Inc. v. New York, 442 U. S. 319, 326, n. 5 (1979), and requires that the Fourth Amendment be applied with “scrupulous exactitude” in such circumstances. Stanford v. Texas, 379 U. S. 476, 485 (1965). Consequently, the Court has imposed particularized rules applicable to searches for and seizures of allegedly obscene films, books, arid papers. See, e. g., Roaden v. Kentucky, 413 U. S. 496, 497 (1973) (“seizure of allegedly obscene material, contemporaneous with and as an incident to an arrest for the public exhibition of such material . . . may [not] be accomplished without a warrant”); Marcus v. Search Warrant, 367 U. S. 717 (1961) (warrant to seize allegedly obscene magazines must be particularized and may not issue merely on officer’s conclusory assertion). Although we have not previously had an occasion to analyze the question whether a purchase of obscene material is properly classified as a seizure, some prior cases have involved seizures that followed bona fide undercover purchases. See, e. g., Lo-Ji Sales, Inc. v. New York, supra; Marcus v. Search Warrant, supra. In those cases, the Court did not address the exclusion of the purchased materials, but only of the materials obtained through mass seizures conducted pursuant to unconstitutional open-ended warrants. Absent some action taken by government agents that can properly be classified as a “search” or a “seizure,” the Fourth Amendment rules designed to safeguard First Amendment freedoms do not apply. Cf. Lo-Ji Sales, Inc. v. New York, supra, at 326, n. 5; Roaden v. Kentucky, supra, at 505 (sheriff seized a film from a commercial theater currently screening it).
A search occurs when “an expectation of privacy that society is prepared to consider reasonable is infringed.” United States v. Jacobsen, 466 U. S. 109, 113 (1984). Here, respondent did not have any reasonable expectation of privacy in areas of the store where the public was invited to enter and to transact business. Cf. United States v. Knotts, 460 U. S. 276, 281-282 (1983). The mere expectation that the possibly illegal nature of a product will not come to the attention of the authorities, whether because a customer will not complain or because undercover officers will not transact business with the store, is not one that society is prepared to recognize as reasonable. Cf. United States v. Jacobsen, supra, at 122-123, n. 22. The officer’s action in entering the bookstore and examining the wares that were intentionally exposed to all who frequent the place of business did not infringe a legitimate, expectation of privacy and hence did not constitute a search within the meaning of the Fourth Amendment. See Katz v. United States, 389 U. S. 347, 351 (1967) (“What a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection”).
Nor was the subsequent purchase a seizure within the meaning of the Fourth Amendment. A seizure occurs when “there is some meaningful interference with an individual’s possessory interests” in the property seized. United States v. Jacobsen, supra, at 113. Here, respondent voluntarily transferred any possessory interest he may have had in the magazines to the purchaser upon the receipt of the funds. Cf. Lewis v. United States, 385 U. S. 206, 210 (1966). Thereafter, whatever possessory interest the seller had was in the funds, not the magazines. At the time of the sale the officer did not “interfere” with any interest of the seller; he took only that which was intended as a necessary part of the exchange. See id., at 211.
The use of undercover officers is essential to the enforcement of vice laws. Id,., at 210, n. 6. An undercover officer does not violate the Fourth Amendment merely by accepting an offer to do business that is freely made to the public. “A government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant.” Id., at 211; cf. Lo-Ji Sales, Inc. v. New York, supra, at 329. Nor does the First Amendment suggest a different conclusion in this case. Although a police officer may not engage in a “wholesale searc[h] and seizur[e]” in these circumstances, Lo-Ji Sales, Inc. v. New York, supra, at 329, nothing in our cases renders invalid under the Fourth Amendment or the First Amendment the purchase as here by the police of a few of a large number of magazines and other materials offered for sale. The risk of prior restraint, which is the underlying basis for the special Fourth Amendment protections accorded searches for and seizures of First Amendment materials, does not come into play in such cases, and the purchase is analogous to purchases of other unlawful substances previously found not to violate the Fourth Amendment. See Lewis v. United States, supra, at 210 (purchase of narcotics).
Notwithstanding that the magazines were obtained by a purchase, respondent argues that the bona fide nature of the purchase evaporated when the officers later seized the marked $50 bill and failed to return the change. Brief for Respondent 10. When the officer subjectively intends to retrieve the money while retaining the magazines, respondent maintains, the purchase is tantamount to a warrantless seizure. Id., at 11. This argument cannot withstand scrutiny. Whether a Fourth Amendment violation has occurred “turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time,” Scott v. United States, 436 U. S. 128, 136 (1978), and not on the officer’s actual state of mind at the time the chai-lenged action was taken. Id., at 138 and 139, n. 13. Objectively viewed, the transaction was a sale in the ordinary course of business. The sale is not retrospectively transformed into a warrantless seizure by virtue of the officer’s subjective intent to retrieve the purchase money to use as evidence. Assuming, arguendo, that the retrieval of the money incident to the arrest was wrongful,'the proper remedy is restitution or suppression of the $50 bill as evidence of the purchase, not exclusion from evidence of the previously purchased magazines.
B
The question remains whether respondent’s warrantless arrest after the purchase of the magazines requires their exclusion at trial. Again, assuming, arguendo, that the war-rantless arrest was an unreasonable seizure in violation of the Fourth Amendment — a question we do not decide — it yielded nothing of evidentiary value that was not already in the lawful possession of the police. “The exclusionary rule enjoins the Government from benefiting from evidence it has unlawfully obtained; it does not reach backward to taint information that was in official hands prior to any illegality. ” United States v. Crews, 445 U. S., at 475 (opinion of Brennan, J., joined by Stewart, and Stevens, JJ.). Here, the magazines were in police possession before the arrest, and the $50 bill, the only fruit of the arrest, was not introduced in evidence. We leave to another day the question whether the Fourth Amendment prohibits a warrantless arrest for the state law misdemeanor of distribution of obscene materials.
Because the undercover agents did not obtain possession of the allegedly obscene magazines by means of an unreasonable search or seizure and the magazines were not the fruit of an arrest, lawful or otherwise, the magazines were properly admitted in evidence at respondent’s trial for distribution of obscene materials. The judgment of the Maryland Court of Special Appeals is reversed.
It is so ordered.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
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".
UNITED STATES of America, Appellee, v. ATOMIC FUEL COAL COMPANY, Appellant.
No. 11219.
United States Court of Appeals Fourth Circuit.
Argued June 23, 1967.
Decided Sept. 11, 1967.
John M. Stephens, Pikeville, Ky. (Stephens, Combs & Page, Pikeville, Ky., on brief), for appellant.
Robert M. Perry, Attorney, Department of Justice (Edwin L. Weisl, Jr., Asst. Atty. Gen., and Roger P. Marquis, Atty., Department of Justice, and Thomas B. Mason, U. S. Atty., on brief), for appellee.
Before SOBELOFF, BOREMAN and BRYAN, Circuit Judges.
ALBERT V. BRYAN, Circuit Judge:
In the exercise of eminent domain the United States on June 4, 1964 acquired, with many other properties, varying interests in three small parcels of land for the construction and operation of a flood control dam and reservoir on Pound River, Dickenson County, Virginia. The parcels are contained in tracts designated as Nos. 111-1, 111-2 and 111E-4. These tracts were parts of a 581.88-acre boundary in which the Atomic Fuel Coal Company claimed an interest as lessee of the mineral rights. The District Court allowed Atomic no compensation, holding that it possessed nothing but a revocable license to remove the minerals. We reverse, and remand for a new trial, as to Atomic’s claim in tract No. 111-1, concluding that Atomic was a lessee, not merely a licensee, and entitled to Constitutional just compensation for the leasehold rights taken from it.
As to the other two parcels the record is too obscure to allow an intelligent review. Neither the commission appointed to fix compensation in the case, nor the opinion of the Court, nor the briefs of the counsel give an account of the disposition in respect to them. The best we make out is that in No. 111-2 the take excluded any right to the surface and the minerals thereunder except to flood and submerge the land and, in addition, the unrestricted use of the land for two years from the date of possession. In No. 111E-4, the take included only the right to flood the land, title to the timber and improvements thereon (except structures used in connection with mining operations) and the right for two years from date of possession to an unrestricted use of the land. On remand, the trial court will state specifically, and file in the case, its findings of fact and conclusions of law as to these two properties.
In No. 111-1 the fee simple title was condemned and its case history is as follows:
1. By an indenture dated December 17, 1874, Amos Willis, as owner in fee simple of the 581.88 acres, conveyed to J. D. Price and A. J. Steinman all the “Bituminous and other coals, iron, ore, and all other minerals, Except Manganese and fire clay, in, under, and upon” the entire tract, with the right of ingress and egress to remove them.
2. Steinman Development Company, a New Jersey corporation, succeeded Price and Steinman in this ownership.
3. That company in an indenture dated January 1, 1957, describing itself as “Lessor” and the other party, Pound River Coal Company, Inc., as “Lessee” declared that the “Lessor hereby leases to the Lessee for a period of Five (5) years from December 11, 1956, for coal mining purposes only, the seam or seams of coal lying within” the 581.88-acre tract, exacting certain royalties upon the production and also prepayment of sums on account thereof.
4. This instrument gave the Lessee the right to an extension for “another five-year period on the same terms” but upon increased royalties, and provided further that “if all the mineable and merchantable coal on this lease is not exhausted at the end of this additional five-year period, the Lessor agrees to extend this lease for a further period or periods not to exceed twenty (20) years.” The first extension of five years was granted pursuant to a letter from Pound River dated October 15, 1961.
5. By a written agreement dated December 9, 1963 Pound River Coal Company, Inc., reciting the consent thereto of Steinman Development Company and apparently without its objection, assigned “the existing coal lease” between Stein-man and Pound River to Atomic Fuel Coal Company, Inc., the appellant here.
6. On June 4, 1964 the United States filed its complaint in this action for the condemnation of land, as already noted, for the construction, operation and maintenance of the John W. Flannagan Dam and Reservoir, a flood control project.
7. An order of possession was issued, by the District Court under date of June 4, 1964 and a declaration of taking was filed on June 4, 1964; the complaint and declaration included within tract No. 111-1, 5.23 acres of the 581.88-acre area heretofore described; within tract 111-2, 6.66 acres thereof; and within tract 111E-4, 5.11 acres thereof.
8. Both the complaint and the declaration of taking noted among “purported owners” the Atomic Fuel Coal Company as well as the Steinman Development Company.
9. The United States, without notice to the appellant Atomic Fuel Coal Company, assignee of the Steinman Company of the latter’s mineral rights in the 581.88-acre tract, agreed with the Stein-man Development Company upon compensation, and paid it, for all the mineral rights Steinman had acquired from Willis in 1874 (para. 1 supra) within the condemned tracts, apparently concluding that Steinman had not parted to any extent with these rights; and that Atomic had procured no compensable rights in the minerals by the assignment from Steinman described in para. 5 supra.
10. The commission, on the same basis, denied Atomic any compensation, except $1.00, and the Court denied even that. This is the order from which Atomic now appeals.
Time, money and litigation could have been saved the United States and the other parties if the customary procedure had been followed in this case. With notice of the claim of Atomic, its interest as well as that of all other claimants should have been determined by the Court before directing the ascertainment of just compensation. Certainly the legal question of the character of Atomic’s claim ought not to have been left to the commission.
The validity of the claims once declared, all of the recogized claimants had the right to be heard by the commission upon the amount due for the whole of the take. This amount would then be put into the registry of the Court. Thereafter claimants would be heard by the Court upon the distribution of it among them. By this method the Government would be relieved of the problems of distribution, for its only obligation is to pay as a whole for what it expropriates. Messer v. United States, 157 F.2d 793, 795 fn. 5 (5 Cir. 1946).
Looking at Atomic’s claim in Tract No. 111 — 1, we hold that the Steinman Company was the absolute owner, on conveyance from Willis (para. 1 supra), of all the minerals beneath the surface of the 581.88-acre tract, including the power to sell, lease or otherwise dispose of them; Atomic became the lessee thereof, through assignment from Pound River Company, under the agreement between Steinman and Pound River (para. 3 supra), with the irrevocable right during the stipulated initial and extended terms to mine the minerals. Of course, Steinman remained the owner of the reversion after expiration of the lease periods.
The Government argues that a condemnation defendant who has only a license to abstract elements from the land, without ownership accruing until after severance, has no compensable interest as a condemnee. Assuming arguendo the soundness of this contention, it does not succeed here because we hold that Atomic received title to the minerals in situ. Guides in the determination of the legal nature of the rights in minerals are clearly set forth in 1 Minor on Real Property (2d ed. Ribble) at 71-74. As it is a classic on property in Virginia, we quote at length:
“Interests in mining rights may be divided generally into two classes; (1) Title to minerals in place with such easements as may be necessary for their removal, and (2) the right to acquire ownership of minerals by severance although title to the property is in another. Such right to acquire ownership may be exclusive or it may be shared in common with the owner of the premises or with others. It is not exclusive unless clearly made so. The minerals in place under the surface are susceptible of an ownership distinct from that of the surface, and may constitute a separate corporeal hereditament. Thus the title to the surface and soil may be vested in one person and that to the mines and minerals under the surface in another. The owner of land may convey the surface without the minerals or convey the minerals and retain the surface. He may also lease the land for a limited time, giving the lessee the right to take minerals. In such case the lessee is in the same situation as the ordinary lessee except that he does not commit waste in opening and operating mines on the premises. Or the owner may convey the right to take minerals for a limited time and pass with it no right in the surface, except such as is necessary to work the mines. These cases are not properly considered as transfers of title to the minerals in place, but rather as transfers of the right to take minerals.
“In construing grants of mining rights, care must be taken to distinguish between the conveyance of the minerals themselves in place (which usually confers upon the grantee the exclusive ownership and control thereof, and implies a license to dig for and remove them) and the grant of an authority, license or profit a prendre, under which the grantee is entitled to mine the ore, stone, etc., and remove it, in which case he has no interest in the land or in any ore save that actually mined. In the latter case the grantee’s right to mine is not necessarily exclusive of the right of the owner or his assignee to do likewise. It is exclusive only in those eases where it is so agreed between the grantor and grantee.” [Accent by author.]
Enunciation of the Virginia doctrine in the same tenor is found in Bostic v. Bostic, 199 Va. 348, 99 S.E.2d 591, 66 A.L.R.2d 971 (1957) and Church v. Goshen Iron Co., 112 Va. 694, 72 S.E. 685 (1911). In short, entirely aside from the matter of compensability, it is that only a lease, and not a license, gives an immediate interest in minerals in their natural state. Examining the terms of the agreement between Steinman and Pound River Company, to which Atomic succeeded, we find it a lease — a mining lease.
Features of the agreement warranting our conclusion it bestowed a leasehold upon Pound River Company and Atomic, the former’s assignee, are numerous. The parties designated each other as lessor and lessee, the operative phrase was “hereby leases”, and a specific term and extensions are prescribed. Limited rights of entry for inspection of the lessee’s operation were retained by the lessor — a reservation hardly necessary if, as the Government alleges, the lessor’s rights under the agreement were coextensive with those of the lessee. Again, the transferee and its assign were granted “all the mining surface and timber rights” which had been conveyed to Steinman by Willis, the owner of the whole, in 1874. The last circumstance is a conclusive indication that the grantee was given the exclusive right to these items and could have ejected anyone else from their enjoyment. A right of this breadth was held in Bostic v. Bostic, supra, 199 Va. 348, 99 S.E.2d 591, to be determinative that an agreement is a lease and not merely a license or profit a prendre.
When an instrument has the characteristics we find in the agreement between Steinman and Pound River Company, predecessor of Atomic, it amounts to a mining lease. In Miller v. Kellerman, 228 F.Supp. 446, 459-460 (W.D. La.1964), aff’d 5 Cir., 354 F.2d 46, cert. den. 384 U.S. 951, 86 S.Ct. 1571, 16 L.Ed. 2d 548, it is said:
“A mineral lease is a contract which permits the lessee to explore for minerals on the land of the lessor in consideration of certain commitments by lessee.”
See also Gordon v. Empire Gas & Fuel Co., 63 F.2d 487 (5 Cir. 1933) and United States v. Gratiot et al., 39 U.S. (14 Pet.) 526, 538, 10 L.Ed. 573 (1840).
We disagree with the Government’s position that the owner of the underlay, and not the surface, could not lease the mining rights. Steinman was the owner in fee of the minerals under the 581.88 acres with the right of access and egress for their removal. Possessed of this ownership and this right, Stein-man was empowered to contract with another so as to give the latter an exclusive and irrevocable right to remove the minerals for a specified time. In this Stein-man was conveying to the other party title to the minerals while in place, and according him the right to take them from the ground as and when he desired, provided he paid the reserved royalties.
This lease clearly was something of value. This is recognized by the requirement that lump sums be paid — and had been paid by Atomic in the sum of $5,-865.00 — at the commencement of the first term and the extension, on account of the prospective royalties. These advance payments were not refundable. Presumably the lease had a market value, from which a commission, jury or a court could fix just compensation for its taking. Actually, Atomic paid $11,575.00 for the rights assigned it by Pound River. If there was no market, then the tribunal could have looked to the value as determined by its productivity — analogously to an evaluation by capitalization of rents or profits based on prior experience. United States v. 25.406 Acres of Land, 172 F.2d 990, 993 (4 Cir. 1949); Westchester County Park Commission v. United States, 143 F.2d 688, 693 (2 Cir. 1944). The evidence attests to a prior and profitable mining of this land in recent years.
Allowance of compensation to Atomic is not payment for the frustration of a prospective business opportunity, as the Government suggests, citing United States ex rel. T.V.A. v. Powelson, 319 U.S. 266, 281, 63 S.Ct. 1047, 87 L.Ed. 1390 (1943). Here the United States has taken minerals in the ground belonging to Atomic in the lease periods. This is vastly different from the mere preclusion of a future exploitation of the mining lands. It is reimbursement for property actually taken. The potential productivity of the lease is looked to only to ascertain its value.
As the case was not tried below on these principles, we must set aside the judgment now on appeal, and remand the action for the ascertainment of the fair value of the lease in the hands of Atomic. On retrial, the District Court will make specific findings and state its conclusions of law in respect to the part of tract 111-1, as well as in regard to tracts Nos. 111-2 and 111E-4 as heretofore directed.
Reversed and remanded.
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_circuit
|
B
|
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.
TWINBORO CORPORATION v. COMMISSIONER OF INTERNAL REVENUE.
No. 45.
Circuit Court of Appeals, Second Circuit.
May 7, 1945.
George G. Tyler and Cravath, Swaine & 'Moore, all of New York City (Wm. Dwight Whitney, Roswell Magill, and William R. White, all of New York City, of counsel), for petitioner.
Hilbert P. Zarky, of Washington, D. C., Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and Robert N. Anderson, Sp. Assts. to Atty. Gen., for respondent.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
L. HAND, Circuit Judge.
This case presents only one point in addition to those which we discussed in Winter Realty & Construction Co. v. Commissioner of Internal Revenue, 2 Cir., 149 F.2d 567, handed down herewith. It is this : Whether an owner whose property has been condemned may buy “similar property” in anticipatory replacement of the award, pay for it out of his own funds, recoup himself later out of the award when he gets it, and treat any “gain” as exempt under § 112(f), 26 U.S.C.A. Int.Rev.Code, § 112(f). The taxpayer seeks to distinguish this situation from that which was before us in Bandes v. Commissioner, 2 Cir., 69 F.2d 812, because here the property condemned was a garage, and the “similar property” was also a “garage,” bought “in anticipatory replacement” of the first. In Washington Railway & Electric Co. v. Commissioner of Internal Revenue, 40 B.T.A. 1249, the Board of Tax Appeals, upon a review by the full Board, disagreed with our interpretation; but sought to distinguish the facts so as to sustain our decision. We may of course have been wrong and the Board right, but the attempted distinction is untenable. In Bandes v. Commissioner, supra, the taxpayers had bought one parcel of land on which they meant to put up an apartment; but before they could do so, it was condemned. They looked about for a substitute, and found two parcels on which they then proceeded to build apartments. The attempted distinction is apparently that, as they had not yet built the apartment when the first parcel was condemned, and, as they might change their minds, the new purchases could not have been made “in anticipatory • replacement” of the old. On what basis this can be supported we do not understand; but, be that as it may, we had not the slightest intention of depending upon anything of the sort; we assumed that the two parcels were bought “in anticipatory replacement” of the first, and to rest our decision upon our understanding that that would not serve. We adhere to that interpretation, though, as before, we reserve decision in case an owner borrows money to pay for “similar property,” and later uses the award to pay the debt. Possibly that may be an instance where the award is “expended in the acquisition of other property similar * * * to the property so converted.” That was not this case, for here the taxpayer bought and paid for the property out of its own funds.
It is quite true that the doctrine will at times put an owner in the trying dilemma of choosing between allowing his business to be stopped, and being obliged to pay a large tax upon a “gain” “realized” against his will. There will be no method by which he can procure any substitute property in season to supply his needs, and yet to avail himself of the privilege which would concededly be his if he were not pressed to act at once. It can therefore be plausibly argued that the situation is a casus omissus; and if we felt sure enough that that were true, we might not stick at its defective expression. But we are not sure whether Congress really meant to provide the full measure of relief which a complete fulfillment of its apparent purpose demanded. The law has now been on the books since 1921, and the regulations, at least since 1934 (Article 112(f)-l, Regulations 86), have provided that “the taxpayer must trace the proceeds of the award into the payments for the property so purchased,” although the proceeds need not be “earmarked” — whatever that may mean. After every allowance which can properly be made for failure to cover obviously overlooked occasions, we remain in too much doubt to force the language so far from its literal meaning. Moreover, it should not be forgotten that we are dealing with an exemption.
Order 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_alj
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court support the decision of an administrative law judge? 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".
Vali OMMANI and Anna Ommani, Plaintiffs-Appellants, v. DOCTOR’S ASSOCIATES, INC., Defendant-Appellee.
No. 85-2565
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
May 9, 1986.
Virgil Howard, Corpus Christi, Tex., for plaintiffs-appellants.
Michael G. Morris, Corpus Christi, Tex., for defendant-appellee.
Before RUBIN, JOHNSON and JONES, Circuit Judges.
EDITH HOLLAN JONES, Circuit Judge:
The appellants contest the district court's denial of preliminary injunctive relief and the stay of court proceedings pending arbitration. We AFFIRM the district court’s determination.
The dispute arises out of a franchise agreement entered into in February, 1983, between appellants as franchisees and Doctor’s Associates as franchisor for small businesses called the Subway Sandwich Shops. Appellants paid the appellee a franchise fee of $7,500, attended a training school in Connecticut, and cooperated to seek locations for Subway Sandwich Shops in San Antonio, Austin, and Dallas, Texas. According to appellants, Doctor’s Associates was unable to obtain a satisfactory location for 18 months after the franchise agreement was signed, and plaintiffs, in despair, set up their own non-Subway shops in Corpus Christi. During the summer of 1984, the parties purported to resolve certain of their disputes by execution of a mutual release and refund to the appellants of a $2,500 check representing a security deposit on a lease that was never consummated. Appellants were never able to open a Subway Sandwich Shop. Their lawsuit sought relief based upon alleged breach of contract, negligence, release, fraud in the inception, and deceptive trade practices in violation of state statute, and requested a temporary restraining order and injunction to prevent enforcement of the arbitration clause.
The matter was referred to a magistrate, who found a timely demand for arbitration was made by Doctor’s Associates. The magistrate further concluded that the parties’ arbitration agreement, which was contained in a section of their franchise contract, evidenced a transaction involving commerce, and was not sought to be overcome by any claim that appellants were defrauded or overreached in agreeing to the arbitration clause. As the arbitration provision at issue provided that “any controversy or claim arising out of or relating to this contract or the breach thereof shall be settled by Arbitration in accordance with the Rules of the American Arbitration Association,” the magistrate found that the subject matter of the parties’ dispute was within the scope of, and covered by, that clause. The district court adopted these findings and the legal conclusions that led to a stay of the appellants’ lawsuit pending arbitration.
The Federal Arbitration Act provides that written agreements to arbitrate controversies arising out of an existing contract “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. “By its terms, the Act leaves no place for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed.” Dean Witter Reynolds Inc. v. Byrd, — U.S.-, 105 S.Ct. 1238, 1241, 84 L.Ed.2d 158 (1985). See 9 U.S.C. §§ 3, 4. Confronted with this unequivocal language of the Supreme Court interpreting the statute, appellants have premised their challenge on two major grounds and two minor ones. The major grounds are (1) that their action, insofar as it states a claim under the Texas Deceptive Trade Practices Act, Tex.Bus. & Com.Code Ann. §§ 17.41 et seq. (Vernon Supp.1986), is not a contract claim subject to arbitration, and (2) that failure of the appellee to qualify to do business in the State of Texas bars its request for stay of proceedings in the district court. The minor contentions, which we forthwith reject, are that the parties’ contract does not evidence a “transaction involving commerce” and that the mutual release does not fall within the scope of the arbitration clause. The nature of the franchise agreement, involving a contemplated continuous flow of money, advice, obligations, and benefits between Texas and Connecticut, was clearly in commerce. The “mutual release” by its terms deals with a “controversy or claim arising out of or relating to the franchise contract or the breach thereof” and thus does fall within the purview of the arbitration clause.
The appellants’ complaint concerning the arbitrability of an unconscionability claim based on the Texas Deceptive Trade Practices Act is controlled and overruled by the Supreme Court’s decision in Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984). The similarity between the cases is indeed striking. In Southland, plaintiff franchisees filed suit against the franchisor alleging, inter alia, fraud, oral misrepresentation, breach of contract, and violation of the California Franchise Investment Law. Franchisor Southland sought to compel arbitration, and by divided vote, the California Supreme Court held that claims presented under the state Franchise Investment Law were not arbitrable. Id. at 5, 104 S.Ct. at 855-56, 79 L.Ed.2d at 9. The U.S. Supreme Court reversed, finding in the Supremacy Clause of the Constitution and the congressional intent concerning the . Federal Arbitration Act ample scope to conclude that the states may not thwart the federal policy to encourage arbitration. Neither party before us cites any Texas authority concerning whether claims under the state Deceptive Trade Practices Act are arbitrable. However, to the extent that that statute provides a remedy parallel to and often overlapping claims that may fall within the scope of the Federal Arbitration Act, we find the Southland decision clearly apposite. Hence, enforcement of otherwise valid arbitration clauses cannot be denied solely by virtue of the suggestion that a claim, otherwise comprehended within the scope of an arbitration clause, is also based on the Texas Deceptive Trade Practices Act.
Appellants’ final contention is that Doctor’s Associates had no right to seek a stay pending arbitration because of its failure to qualify to do business in the State of Texas pursuant to Tex.Bus.Corp.Act Ann. art. 8.01 A (Vernon Supp.1986). This argument fails for two reasons. First, inasmuch as the appellee’s franchise agreements amounted to transacting business in interstate commerce, no Texas Certificate of Authority to transact business was required. Tex.Bus.Corp.Act Ann. art. 8.01 B(9) (Vernon Supp.1986). Even if it was required, the absence of a Certificate neither impairs the validity of the contract between the parties nor prevents appellee from defending an action. Tex.Bus. Corp.Act Ann. art. 8.18 B (Vernon 1980). The request for stay of proceedings was in the nature of a defensive maneuver for which no Certificate of Authority is necessary. The irrelevance of this issue pretermits our need to consider whether the Federal Arbitration Act, as interpreted by Southland, could preempt the state’s requirements. for a defendant to transact business in its borders.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Question: Did the court support the decision of an administrative law judge?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_const1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
UTAH HOTEL COMPANY, a Corporation, Appellant, v. Ira N. HINCKLEY, Collector of Internal Revenue, District of Utah, Appellee.
No. 2151.
Circuit Court of Appeals, Tenth Circuit.
Dec. 3, 1940.
Robert L. Judd, Paul H. Ray, S. J. Quinney, and A. H. Nebeker, all of Salt Lake City, Utah, for appellant.
Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key and Warren F. Wattles, Sp. Assts. to the Atty. Gen., and Dan B. Shields, U. S. Atty., and Scott M. Matheson, Asst. U. S. Atty., both of Salt Lake City, Utah, for appellee.
Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.
PER CURIAM.
The questions presented on this appeal were considered by the Supreme Court of the United States and decided adversely to the contentions of the appellant here, in Helvering v. Northwest Steel Rolling Mills, Inc., 61 S.Ct. 109, 85 L.Ed. -, decided November 12, 1940, and Crane-Johnson Company v. Helvering, 61 S.Ct. 114, 85 L.Ed. -, decided November 12, 1940.
The judgment is, therefore, 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_usc1
|
15
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
COLGATE-PALMOLIVE COMPANY, Petitioner, v. FEDERAL TRADE COMMISSION, Respondent. TED BATES & COMPANY, Inc., Petitioner, v. FEDERAL TRADE COMMISSION. Respondent.
Nos. 6145, 6146.
United States Court of Appeals First Circuit.
Dec. 17, 1963.
Mathias F. Correa, New York City, with whom Arthur Mermin, New York City, John F. Groden, Boston, Mass., Cahill, Gordon, Reindel & Ohl, New York City, and Withington, Cross, Park & McCann, Boston, Mass., were on the brief, for Colgate-Palmolive Co.
Joseph A. McManus, New York City, with whom Lane McGovern, Boston, Mass., H. Thomas Austern, Alvin Friedman, Washington, D. C., David Falk, Washington, D. C., Coudert Brothers, New York City, Ropes & Gray, Boston, Mass., and Covington & Burling, Washington, D. C., were on the brief, for Ted Bates & Co., Inc.
Philip B. Heyman, Atty., Dept, of Justice, with whom James Mcl. Henderson, Gen. Counsel, J. B. Truly, Asst. Gen. Counsel, and Miles J. Brown, Attorney, Federal Trade Commission, were on the brief, for respondent.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
ALDRICH, Circuit Judge.
In 1959 petitioner Colgate-Palmolive Company, at the suggestion of its advertising agency, petitioner Ted Bates & Company, ran a series of television commercials purporting to show, by moving pictures and dialogue, that Colgate’s shaving cream Palmolive Rapid Shave was so “moisturizing” that it would permit “tough” (coarse) sandpaper to be “shaved” immediately with a safety razor. The Federal Trade Commission, after a hearing, found that the seeming sandpaper which had been photographed as being shaved in the studio was a plexiglass “mock-up”; that even fine sandpaper could not be shaved immediately ; and that coarse paper could not be shaved until “moisturized” for an hour. There being a clear misrepresentation, the Commission entered orders forbidding the continuation of such, or similar, advertising. In addition it forbad, except for purely background purposes, all further undisclosed use of mock-ups. Petitioners, respondents in the proceedings below and hereafter so termed, had made the point that technical problems and imperfections in the photographic process sometimes required the use of mock-ups in order to effect entirely correct reproductions on the screen. The Commission held this to be irrelevant even though no quality, attribute, appearance of, or feat which could be performed by, the product was inaccurately represented. On a petition for review, over respondents’ opposition which we found conspicuously unmeritorious, we agreed with the Commission that there had been a material misrepresentation of the cream’s ability to shave sandpaper, and thus improper advertising. However, we agreed with respondents on the second aspect, and returned the case to the Commission for the formulation of a new order in accordance with our opinion. 310 F.2d at 95. Contending that the new order failed to comply with our expressed views, respondents are back with new petitions.
Prior to the issuance of its new order in final form the Commission handed down a fifteen-page opinion, hereinafter the “second opinion,” in which it recited that our “various suggestions” “in substantial part have been accepted.” We reached a number of conclusions not labelled suggestions which the Commission was not free to disregard under the mandate. 15 U.S.C.A. § 45 (i); see Virginia Lincoln Furniture Corp. v. Commissioner, 4 Cir., 1933, 67 F.2d 8 (comparable provision under the revenue acts); cf. Morand Bros. Beverage Co. v. N. L. R. B., 7 Cir., 1953, 204 F.2d 529, 532, cert. den. 346 U.S. 909, 74 S.Ct. 241, 98 L.Ed. 407. Respondents assert that it has done so in substantial measure. But because much importance beyond this particular case has become attached to the Commission’s antipathy to mock-ups, we will make an exception and re-examine its present position on the merits rather than from the limited standpoint of whether it comports with our previous opinion.
The substance of the present order is contained in the following passage. Respondents are to cease and desist from,
“Unfairly or deceptively advertising any such product by presenting a test, experiment or demonstration that (1) is represented to the public as actual proof of a claim made for the product which is material to inducing its sale, and (2) is not in fact a genuine test, experiment or demonstration being conducted as represented and does not in fact constitute actual proof of the claim, because of the undisclosed use and substitution of a mock-up or prop instead of the product, article, or substance represented to be used therein.”
If, to ascertain what is meant by “demonstration” and “actual proof” of a material claim, one turns to the second opinion, one learns that a “demonstration” is something which “prove [s] visually a quality claimed” for a product as distinguished from a “casual or incidental display” which is “not presented as proof of the * * * [quality] or appearance of the * * * [product], and thus in no practical sense would have a material effect in inducing sales * * ” in the view of the Commission this language “resolved” any “ambiguity.” In the balance of its opinion, directed to the scope of the order, the Commission discussed examples of admittedly material misrepresentation, such as improper disparagement of a competitor, dishonest testimonials, misrepresentation of the seller’s trade status, or of its receipt of an award or of prominent patronage, and concluded with the following footnote,
“ * * * The misrepresentation would not have been greater or more material, but only more explicit, if the announcer had stated: ‘this test is being made on real sandpaper, and not an artificial mock-up contrived to look like sandpaper.’ The point is, whatever the technical photographic reasons justifying use of a mock-up, there could be no justification for the false presentation to the public of ‘proof’ that in fact was not proof."
At the oral argument, to test whether there was no ambiguity, we asked counsel for the Commission if an ice cream manufacturer showed an enlarged and appealing photograph of what was apparently rich, creamy ice cream which coincided exactly in appearance with its product, but was in fact a mock-up (see fn. 2, supra), it was not an attempt “to prove visually the quality * * * or appearance of the product” that might have a “material effect in inducing sales,” and hence deceptive advertising. He replied this would be unobjectionable because “demonstration” in the Commission’s order was to be read by the rule of ejusdem generis, and meant demonstration “in the nature of a test or experiment.” He added that a buyer would be “morally disillusioned” if he learned that he had witnessed a phony test, but that a buyer of the ice cream would be indifferent to the use of the mock-up. The important difference, the Commission asserts, is that in the case of a test, as distinguished from a display or illustration, the viewer believes he has seen “proof” which transcends the advertiser’s “word.”
While, as we said in our previous opinion, every undisclosed use of mock-up or make-up involves a “misrepresentation of a sort,” we must consider the consequences of the Commission’s order. In spite of the Commission’s belief that it has resolved all ambiguities, we envisage great difficulty in determining any dividing line between what is and what is not a test or experiment, or in defining what is a demonstration in the nature of such. Primarily this may be because we find no substantial logical difference between what the Commission disapproves of and what it accepts. We do not see, for instance, why any pictorial representation of delicious-seeming ice cream is not intended to “prove visually the quality * * * or appearance” of the product. Or, to turn to the Commission’s footnote, that the exhibitor does not impliedly say, “This is our ice cream,” just as much as the implied announcement, “This is real sandpaper,” is attributed to Colgate.
The issue of implication goes deeper. If a manufacturer exhibits a bed sheet, in fact blue, but apparently white, in connection with advertising its soap, is this depiction something which merely “displays or illustrates a claim,” and therefore benign, or does it (improperly) imply there has been a test? Even if it does imply a test, is this permissible since because this was not “verified or proved by an experiment performed before the eyes of the viewer” (Commission’s brief) he cannot believe he has seen “proof” independent of the advertiser’s “word ?” If the mere exhibition of the doctored sheet is not forbidden (provided the total effect is correct), would it become a “demonstration in the nature of a test” if the sheet were shown being taken out of a washing machine? Again, if an adult may be pictured apparently enjoying allegedly delicious medicine (the Commission accepts fully the “I love Lipsom’s” hypothetical in our earlier opinion, 310 F.2d at 93, n. 7) does it become a test or a demonstration in the nature of a test if the supposed patient is so young that it may be thought that the smile of enjoyment was a spontaneous reaction ? And if so, how young? Such questions, and others like them, may be readily put, not as the product of a fertile imagination, but as the result of ephemeral examination of current TV commercials.
The existence of such difficulties can only bring to mind the principle that an order must be capable of practical interpretation. F. T. C. v. Henry Broch & Co., 1962, 368 U.S. 360, 368, 82 S.Ct. 431, 7 L.Ed.2d 353. The relative insignificance of the issue before us makes it particularly unwarranted to offend this principle. By hypothesis we are not talking about misrepresentation of any quality or appearance of the product, or whether it can or cannot perform the “test” which it is claimed to accomplish. We are considering no basic deception, but only the situation where, in illustrating faithfully a test which has been actually performed, an advertiser uses some foreign mock-up or make-up. As we stated in our previous opinion, so far as deceit is concerned the buyer is interested in what he thinks he sees, and if what he buys can do and has done exactly what he thinks he sees it do, he has not been misled to any substantial degree.
In seeking to stress the extent of misrepresentation by mock-up the Commission sometimes loses sight of the difference between a mock-up which presents an accurate portrayal and one, like Colgate’s, that effects a basic deception, and at other times, in speaking of the buyer’s “disillusionment,” proceeds as if he would learn of the mock-up, but would not learn that no quality or characteristic of the product had been misrepresented. Nor are we impressed with the strength of the previously mentioned difference that in a “genuine” test the viewer has more “proof” than the advertiser’s “word.” Even here there is usually a significant dependence upon the advertiser’s word. We may take judicial notice that commercials are normally prerecorded. We may also assume, although the matter is not adverted to by the Commission, that the exhibition of a test implies that it can always be carried out, and not that this was the rare exception. The Commission has never opposed prerecordings, nor do we think it should, yet on this vital implication there is only the advertiser’s word. We see little difference between this and taking his word that the test depicted is a faithful reproduction in other respects.
The Commission’s real objection, of course, is not to the resort to a mock-up, but to the implied representation that none is employed. This is apparent not only from the cases it regards apposite, which involved positive affirmations, such as that the manufacturer had (contrary to fact) received an award, or testimonials, or orders from certain customers, but also specifically from its conclusion that respondents’ advertisement would be no worse, “only more explicit,” if the announcer had affirmatively stated, “This is real sandpaper.” The nub of this case, to return to our ice cream comparison, is either that Colgate impliedly says its depiction is real and the ice cream manufacturer does not, or that the misrepresentation is material in the case of the sandpaper, and harmless in the case of the ice cream. The Commission says the ice cream case is different, but, with all deference, we find its opinion, while long on generalities, short on analysis. It would seem paradoxical to say that a misrepresentation that what is shown is the actual product is harmless while a misrepresentation as to something else is not. Yet we cannot see why if the representation is to be implied in one instance it is not in the other.
Under all the circumstances, we see only one practical solution. It is to hold that, in the absence of any express statement, the only implied representation is that no basic dishonesty has been introduced into the picture by the photographic process. Such a principle would, we think, be of universal application, and would include all demonstrations whether in the nature of a test or otherwise. It would cover the situations we found troublesome in our previous opinion which the Commission has failed to discuss, and every case of mock-up or make-up purporting to reproduce on the screen an exact representation of the qualities and appearance of the product, or, in the case of a claim of performance, of an actual test. If there is an accurate portrayal of the product’s attributes or performance, there is no deceit. Such a principle may not be meticulously perfect, but we believe it would lead to minimum uncertainty and go more nearly to the heart of the matter. It would also avoid the inroads into the commercial’s sixty seconds which would result from having to make the statement whenever mock-ups were used that the exhibition, though employing artificial aids, was a faithful portrayal of actual events, together with such other rehabilitating data as might be thought necessary to make the showing persuasive. While we do not make this the basis of our decision, we reiterate our former observation that an enforced remedy should not outdistance the need.
The principle we espouse has no special relationship to mock-ups, and to amend the present order along such lines would serve no particular purpose. Accordingly, we instruct the Commission, as we thought we had directed it before, to enter an order confined to the facts of this case, where respondents used a mock-up to demonstrate something which in fact could not be accomplished. However, as to what terms the new order should contain with respect to products and customers, we did not, as the respondents seem to feel, direct the Commission to enter the narrowest possible order. There is more than one way to deal with a “single offense,” cf. All-Luminum Products, Inc., FTC 11/7/63, particularly a blatant one. We do agree with respondents that the Commission has been concerned with its broad opposition to mock-ups and has never expressed its views with respect to the proper scope of an order directed to more narrowly conceived substantive misconduct. In this situation- we continue to believe that we should not comment on the precise terms of an order in vacuo. We will add, however, in view of the strenuous opposition expressed by respondent Ted Bates & Company to the so-called “imposition of a burden” of showing extenuation, that respondent has misconceived the principle. The Commission has allowed it an escape, rather than imposed a burden. We see no reason why advertising agencies, which are now big business, should be able to shirk from at least prima facie responsibility for conduct in which they participate.
Judgment will be entered setting aside the order of the Commission. Further proceedings to be in accordance with this opinion.
. For the broad scope of this order, applying to all “pictures, depictions, or demonstrations * * * not in fact genuine * * see our former opinion in this case, reported at 310 F.2d 89 (1962), and Judge Wisdom’s discussion thereof in Garter Products, Inc. v. F. T. C., 5 Cir., 1963, 323 F.2d 523.
. It is recognized for example, that the brown color of iced tea disappears, so that it looks like water. Blue shirts must be worn to simulate natural white. The sand on sandpaper, it was found in this ease, fails to reproduce, leaving an apparently plain surface. Some substances which may photograph correctly, such as ice cream or frosting, or the head on beer, melt under the hot lights. In other eases so many retakes may be required that even the actor might fade with repeated consumption of the advertised product. For these and similar reasons, physical properties must sometimes be “made up” or entirely replaced by “mockups” although the result is a faithful and accurate portrayal.
. We mention the length of this opinion lest it be thought that the ambiguities we are about to discuss were due to cursory or ill-considered expression by the Commission. In fact the Commission wrote still a third opinion when it put its present order in final form, and after respondents had asserted difficulties in interpretation. In this third opinion it said that it had now acted to “restate with clarity and precision the basis and breadth of our findings and order.”
. See also, e. g., Note, The Rapid Shave Case, 38 Notre Dame Law. 350, 354 (1963), “The Commission has not capitulated, but has merely withdrawn to regroup its forces.” The Commission’s response is that if it has departed from our opinion it is because we misunderstood its original intention, due in large measure to “extreme arguments” made by its counsel. Because of this we asked present counsel whether he had cleared his argument with the Commission, and received an affirmative reply. The importance of this will shortly become apparent.
. There is so much in the Commission’s second and third opinion about our having misunderstood its original position that we are not sure whether we now have before us a new position, or merely its old one “restated.” See fn. 3, supra.
. The Commission rephrases this in its brief as the difference between a mockup which “displays or illustrates a claim,” and one that purportedly “objectively” “proves its truthfulness.” As will be developed, we find this less than a clarification of what the Commission states (fn. 3, supra) was already “precise.”
. See fn. 4, supra. The ice cream matter was dealt with less specifically in the second opinion, the Commission saying that such an illustration was proper if “incidental.”
. In other words, to have seen simulated sandpaper wetted by shaving cream is less palatable then to have one’s appetite whetted by emulsified cold cream.
. The Commission also claims that its toleration of such deception would be unfair to competitors. This would seem in this context a mere restatement of the Commission’s position rather than additional argument.
. See fn. 6, supra.
. In its first opinion the Commission said, “[A]n announcer may wear a blue shirt that photographs white; but he may not advertise a soap or detergent’s ‘whitening’ qualities by pointing to the ‘whiteness’ of his blue shirt. The difference in all these cases is the time-honored distinction between a misstatement of truth that is material to the inducement of a sale and one that is not.” We would hazard no guess as to the extent, if any, the Commission has now departed from this position.
. While there is much meat in Jaffe, The Judicial Enforcement of Administrative Orders, 76 Harv.L.Rev. 865 (1963), we suspect that respondents would find little nourishment in the author’s thesis that the courts may be counted on to neutralize, at the stage of adjudicating violation or imposing penalty, excesses by administrative bodies. Nor does the Commission’s suggestion of advisory administrative opinions seem a ready solution. We think the very suggestion indicates the Commission’s failure to realize tike scope of the problem.
. In O’Day Corp. v. Talman Corp., 1962, 310 F.2d 623, 626, n. 5, cert. den. 372 U.S. 977, 83 S.Ct. 1112, 10 L.Ed.2d 142, we held that it was not unfair competition, where defendant sold, and could properly sell, a sailboat substantially identical to plaintiff’s, for defendant to use in its advertisements a picture which in fact was of plaintiff’s boat instead of its own. While in that instance the boat was not “performing,” we do not think the result would have been different if she had been photographed under sail if their performance was the same.
. We pointed out in our previous opinons there was a difference between claiming that one had received a certain testimonial when one had not, and merely reproducing (without disclosure) a copy of an actual testimonial because the original would not “photograph.” The second opinion continues to talk only about the former.
. Contrary to the Commission, wd believe it may, within limits, be more serious for the advertiser to misstate affirmatively the details of what is being shown than to imply them. The very fact of affirmation, as well as indicating an actual intent, dignifies the representation. Of. NLRB v. Trancoa Chemical Corp., 1 Cir., 1962, 303 F.2d 456, 461. We would doubt, for instance, that if a manufacturer stated, “This is an actual unretouahed photograph of our ice cream,” the Commission would regard it as immaterial that the subject was a mockup.
. E. g., a “genuine” demonstration in which the normal photographic process actually upgrades the product. See, also, fn. 14, supra,
. The Commission makes the point that such permissive use of mock-ups would greatly increase its policing difficulties. The Commission clearly has such duties, and considering the substantial manner in which respondents’ mock-up departed from the truth and their insistence even in this court that there had been no misrepresentation, (see, also Carter Products Inc. v. F.T.C., supra) we are sympathetic. There are, however, other solutions. Bor instance, there might be no objection to a properly formulated rule placing the. burden of going forward (we do not mean burden of proof, cf. United Aniline Co. v. Commissioner, 1 Cir., 1963, 316 F.2d 701) upon a party who uses a mock-up or make-up to show that no basic deception, as we have been using the term, was accomplished thereby. This burden might be particularly heavy if there was no “photographic” reason for employing a substitute.
. The same order was entered against Bates as against Colgate, but with respect to Bates there was a proviso that lack of knowledge, or of reason to know, of the existence of a mock-up would be a defense.
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_appel1_8_2
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous". Your task is to determine which of the following categories best describes the litigant.
Marvin ECHOLS, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 75-1875.
United States Court of Appeals, Sixth Circuit.
Nov. 6, 1975.
Marvin Echols, pro se.
Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., Bernard Gottfried, Director, Region 7, N. L. R. B., Detroit, Mich., for respondent.
Before WEICK, EDWARDS and EN-GEL, Circuit Judges.
ORDER
This appeal is before a special panel of the court designated under Rule 3(e), Rules of the Sixth Circuit, to hear a motion to dismiss petitioner’s pro se petition to review and to hear in connection therewith a motion filed in this court for an order to transcribe and file herein a certified copy of proceedings of the National Labor Relations Board which are sought here to be reviewed.
The Board’s motion to dismiss the appeal for lack of jurisdiction is well taken. We have no jurisdiction to review a decision of the Board’s General Counsel not to file a complaint alleging unfair labor practice charges. Mayer v. Ordman, 391 F.2d 889 (6th Cir. 1968), cert. denied 393 U.S. 925, 89 S.Ct. 257, 21 L.Ed.2d 261 (1968); Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Hernandez v. NLRB, 505 F.2d 119 (5th Cir. 1974); Tensing v. N. L. R. B., 519 F.2d 365 (6th Cir. 1975). It therefore follows that the “Motion for NLRB Transcribes” so styled must be denied, the court noting that the Freedom of Information Act, 5 U.S.C. § 552 et seq., does not in any event vest original jurisdiction in this court to enforce its terms. Accordingly,
IT IS ORDERED that the above captioned appeal be and it is hereby dismissed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "miscellaneous". Which of the following categories best describes the litigant?
A. fiduciary, executor, or trustee
B. other
C. nature of the litigant not ascertained
Answer:
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songer_casetyp1_6-3
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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 identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "labor relations".
Ervin SZEWCZUGA and Gerald Treichel, Petitioners, v. NATIONAL LABOR RELATIONS BOARD, Respondent. MILLER BREWING COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Nos. 81-1054, 81-1413.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 12, 1982.
Decided Aug. 17, 1982.
Erie Phillips, Atlanta, Ga., with whom Mark E. Edwards, Atlanta, Ga., and Daniel P. Dockery, were on brief, for petitioner in No. 81-1413.
Gerry M. Miller, Milwaukee, Wis., with whom Scott D. Soldon, Milwaukee,’ Wis., was on brief, for petitioners in No. 81-1054.
Elliott Moore, Deputy Ass’n Gen. Counsel, N. L. R. B., Washington, D.C., with whom John G. Elligers, Atty., N. L. R. B., Washington, D. C., was on brief, for respondent.
Before ROBINSON, Chief Judge, McGOWAN, Senior Circuit Judge, and NORTHROP, United States Senior District Judge for the District of Maryland.
Opinion for the Court filed by Senior Circuit Judge. McGOWAN.
Sitting by designation pursuant to 28 U.S.C. § 294(d).
McGOWAN, Senior Circuit Judge:
Following a contractually forbidden strike by some of the electricians at its Milwaukee brewery, Miller Brewing Company suspended the rank-and-file participants for three days, but discharged two union stewards who joined the walkout. The National Labor Relations Board (“NLRB” or “Board”) decided that Miller had violated sections 8(a)(1) and (3) of the National Labor Relations Act (“NLRA” or “Act”) by discharging the two stewards, and ordered Miller to reinstate them, with back pay for the period by which their discipline exceeded that given to the rank and file. Miller has petitioned for review of the Board’s order, as have the two stewards, Ervin Szewczuga and Gerald Treichel. The Board has cross-petitioned for enforcement of its order.
We enforce the Board’s order in all respects. We conclude that substantial evidence supports the Board’s determination that Szewczuga and Treichel were not strike leaders, and that Miller officials had no basis for believing that they were. We also answer a question left open in our recent decision in Fournelle v. NLRB, 670 F.2d 331, 338 (D.C.Cir.1982): we hold that an employer may not impose disparate discipline on a union official who engages in an unprotected strike, if the official was not a leader of the strike and if the collective bargaining process has not explicitly created higher duties for union officials during such strikes. As to the stewards’ challenge, we find the Board’s remedy an appropriate one for the violation found.
I. Background
Petitioners Szewczuga and Treichel filed an unfair labor practice charge against petitioner Miller on December 13, 1977; the Board’s General Counsel issued a complaint based upon the charge on August 11, 1978.
Following a trial in January of 1979, Administrative Law Judge Herzel H.E. Plaine (the “ALJ”) issued his decision on April 2, 1980. The Board affirmed the findings of the ALJ and adopted his order with modifications on January 14, 1981. A summary of the ALJ’s findings follows.
On the morning of November 1, 1977, Miller management called a meeting with stewards from the machinists’ and electricians’ unions. Stewards Treichel and Szewczuga were present for the electricians. Company officials informed the stewards that the company had decided to assign certain disputed work to the machinists, although the work had previously been assigned to an outside group of electricians. The representatives of both unions responded to the announcement with heated displeasure, and said that it might produce “trouble,” in the sense of employee dissatisfaction. Neither the company officials nor the union officials foresaw at this time that the decision might prompt any interruption of work. Stewards Szewczuga and Treichel, after leaving the meeting, informed a higher union official, Henry Carrera, of the company’s decision, and proceeded to their respective shops to inform the rank and file.
Steward Treichel received an angry response from his fellow electricians: they expressed dissatisfaction with their union and their stewards and threatened to leave work to go to the union hall. Treichel called union representative Carrera again to inform him of the threatened work.stoppage. Carrera advised Treichel to try to keep the men at work while Carrera attempted to discuss the situation with Miller officials, and to keep the men together as a group if Treichel was unable to prevent the electricians from going to the union hall. Treichel attempted to persuade the men in his shop that leaving work would be the wrong thing to do. After leaving the shop for a short meeting with steward Szewczuga and a third steward, Ted Collins, Treichel returned to his shop and found that the rank and file had firmly decided to leave work despite Treichel’s admonitions. Treichel then sought out a Miller supervisor and informed him of the impending walkout, and said that he, Treichel, would have to accompany the men. Treichel was the first of the electricians in his shop to punch out, but he was the last to leave. At no time did he direct anyone to stop work or to leave the plant.
Steward Szewczuga found the electricians in his shop equally irate. The men accused the stewards and the union of failing to do their job. Szewczuga responded that the stewards were doing their best, and told the men that union representative Carrera would take the proper action regarding the work-assignment decision. After a meeting with the other two electrician stewards, Szewczuga was returning to his shop when he received a telephone call; an anonymous caller told Szewczuga that the electricians were going to the union hall and that they wanted the stewards to be there. When he reached the shop, Szewczuga found the men dressed in street clothes and ready to leave work. Szewczuga attempted to dissuade them from leaving, and asked that they stay at work at least until representative Carrera had had an opportunity to file an official grievance regarding the work-assignment decision. The men responded that they no longer believed in grievances. Szewczuga tried unsuccessfully to reach Treichel and Carr-era by telephone; he then determined that he should accompany his men to the union hall. While he was preparing to leave, two Miller officials confronted Szewczuga and warned him that a walkout would be a violation of the contractual no-strike clause, and that the participants might face discipline, including discharge. Szewczuga responded that he understood, but that he was unable to dissuade the men from leaving and that they wanted their steward at the union hall. Szewczuga punched out and was the last electrician to leave his shop. He did not direct any employee to leave the plant, and did not countermand any supervisor’s order to remain at work.
In a third shop, steward Collins and his group were the last electricians to learn of the work-assignment decision. Collins learned of the decision from Szewczuga and Treichel, and informed the men in his shop. The men reacted just as those in Szewczuga’s and Treichel’s shops had: they angrily resolved to leave work and go to the union hall to get an explanation of the work-assignment decision. Collins informed his supervisor that he was unable to persuade the men to remain at work, and that he intended to go with the men to keep order. The supervisor called higher management officials, one of whom in turn called union representative Carrera, who came to the plant. Carrera met first with the Miller officials, and then with the men in Collins’s shop; Carrera was able to persuade the men to remain at the plant.
After he succeeded in persuading the men in Collins’s shop not to leave the plant, Carrera went to the union hall and met with the strikers from Szewczuga’s and Treichel’s shops. Carrera informed them that he had agreed with management upon a procedure by which the work-assignment dispute would be submitted to the NLRB, and that he had received tentative assurances from management that the punishment for the walkout would be mild. Carr-era, with the aid of stewards Szewczuga and Treichel, who spoke in favor of the proposed solution, persuaded the men to return to work the next day-.
The work stoppage by the electricians in the three shops, all parties agree, was in violation of Article IX of the collective bargaining agreement between Miller and the electricians. Paragraph 5 of Article IX provides, in pertinent part:
During the term of this Agreement, all disputes, grievances, complaints and adjustments pursuant to this Agreement shall be settled in accordance with the Grievance and Arbitration Procedure outlined herein, and the Union agrees for itself and its members that there shall be no strike of any kind, walk-out, slowdown, picketing, stay-in, or work stoppage of any type. Should the Union, or any employee or group of employees violate the provisions of this paragraph, it is mutually agreed that the Employer may impose such disciplinary action against any or all employees involved as it may deem necessary, including discharge.
App. at 25.
On November 15, 1977, after conducting an investigation, Miller announced three levels of discipline for the participants in the November 1 work stoppage. First, the electricians in steward Collins’s shop, who stopped work for three hours but stayed at the plant, received written reprimands and the loss of three hours’ pay; Collins was docked for three hours’ pay but received no reprimand. Second, the electricians in Szewczuga’s and Treichel’s shops who left the plant received reprimands and suspensions for three days without pay. Finally, stewards Szewczuga and Treichel — veteran employees of Miller with 26 and 12 years of service respectively — who accompanied the rank-and-file electricians on the walkout, were discharged, because of “participation in and leadership of” the walkout.
When steward Collins, the only steward not discharged by Miller, learned of the discharges of Szewczuga and Treichel, he resigned as steward. Since then, union representative Carrera has been unable to persuade any of the electricians at the plant to serve as stewards.
II. The Administrative Proceedings
Having made the findings that we have just summarized, the AU first considered and rejected Miller’s contention that Treichel and Szewczuga had been discharged because they were leaders of the strike. He further rejected the contention that Miller officials had a good faith belief that the two were leaders, even if they were not leaders in fact. Instead, he concluded, Miller officials had equated stewardship with leadership of the strike. The ALJ found no evidence in the record to suggest that the parties to the collective bargaining agreement had agreed that union officials were to be held to higher responsibilities than the rank and file during unauthorized strikes. Under existing Board precedent, he concluded, the selective discharge of the two stewards was an unfair labor practicé. His recommended order directed Miller to cease similar violations of the Act in the future, to offer to reinstate Szewczuga and Treichel with back pay from the date of their discharge, and to post appropriate notices.
A divided panel of the Board affirmed the ALJ’s findings and conclusions, although it modified the ALJ’s remedial order in one respect. Instead of ordering full back pay from the date of the discharge of the two stewards, as the ALJ had recommended, the Board ordered back pay for the period by which the discipline given the stewards exceeded the discipline given to the rank and file. This reduced the amount of back pay ordered by three days. Chairman Fanning explained that such a reduction was necessary to tailor the relief to the violation found.
We now proceed to a consideration of the contentions made in the petitions for review.
III. Miller’s Challenges To The Board’s Order
A. Strike Leadership
Miller presents two arguments concerning the stewards’ alleged leadership of the strike: first, that the stewards were in fact leaders of the work stoppage, and second, that discharge of the two stewards was permissible because Miller officials had a good faith belief that the two were leaders, even if they were not so in fact. Both arguments lack merit.
As this court noted in Fournelle v. NLRB, 670 F.2d 331 (D.C.Cir.1982), “Board precedent is clear that union officials who are strike leaders may be selectively punished.” Id. at 340 n.18 (citing Chrysler Corp., 232 N. L. R. B. 466 (1977); J. P. Wetherby Constr. Co., 182 N. L. R. B. 690 (1970)). Strike leadership has been defined so as to include not only the initial incitement of a work stoppage, see, e.g., NLRB v. Armour-Dial, Inc., 638 F.2d 51, 56 (8th Cir. 1981), but also actions giving “impetus and direction” to a strike. Chrysler Corp., supra, 232 N. L. R. B. at 474 (decision of ALJ).
Miller contends that the actions of stewards Szewczuga and Treichel constituted leadership of the walkout/ because they “provided this ‘spontaneous’ walkout a certain order that was otherwise lacking.” Miller points to testimony in the record that the two stewards tried to keep order at the beginning of the meeting in the union hall, that Szewczuga was requested to accompany his men to the union hall, that the two stewards advised against including electricians on the second shift in the walkout, and that the two stewards did not immediately seek the assistance of management officials in ending the walkout. All of this testimony, however, is consistent with the conclusion of the Board that “[t]he leadership which was exerted by Treichel and Szewczuga was not in causing the walkout, but rather in a futile attempt to quell the rising tide favoring the walkout.” Miller concedes that the stewards did not initiate the walkout. To the extent that the stewards helped to keep the walkout orderly, they helped to bring about its speedy conclusion. Although they were not in close contact with management officials, they did contact Carrera, a higher union official, who advised them to stay with their men; Carrera then worked with management officials to limit the walkout to half a day’s duration. Miller’s nonspecific assertion that neither steward “made a significant effort to deter any individuals from walking out” is rebutted by credited testimony. Miller’s arguments about strike leadership reduce, at bottom, to the proposition that the stewards “assumed a natural role of responsibility in ensuring that the walkout was orderly”; this argument essentially equates leadership with stewardship, and we reject it, just as the Board did. The Board’s conclusion that the stewards were not strike leaders is supported by substantial evidence, and we affirm it.
Miller’s second argument is that, even if the stewards were not in fact the leaders of the strike, Miller officials had a good faith belief that they were leaders, and so were entitled to discharge them. This argument fails in its initial premise: Miller officials did not have such a good faith belief. The management officials who conducted the post-strike investigation testified that they had no direct knowledge that the two stewards had incited or encouraged the walkout. Instead, as the Board found, those officials treated the stewards as leaders simply because they were stewards. Manager Jablonowski testified that he believed that the two were leaders simply because they had joined the walkout; Manager Paulicivic testified that he assumed that because the stewards had transmitted the work-assignment decision to the rank and file, and because a strike had resulted, the stewards must have transmitted the decision “in such a way as to cause the walkout.” The Miller official who approved the discharges, Daniel Feinsinger, conceded in his testimony that the discharges were based upon the “obvious consideration that they were stewards.” The ALJ’s finding, that Miller “acted on an assumption or belief, without foundation in and contrary to the fact,” was supported by substantial evidence.
B. Selective Discipline as an Unfair Labor Practice
We have concluded that Szewczuga and Treichel did not lead the strike, and their discharges therefore cannot be justified on that basis. We now turn to Miller’s attacks on the Board’s interpretation of sections 8(a)(1) and (3). The Board determined that the collective bargaining process had not explicitly established higher duties for union officials during unauthorized strikes, and that in the absence of such explicit duties, selective discipline of the union officials was an unfair labor practice. We affirm the Board’s conclusion.
1. Duties under the collective bargaining agreement
In Fournelle v. NLRB, 670 F.2d 331 (D.C.Cir.1982), this court held that “where the collective bargaining process has imposed higher duties upon union officials than the rank and file, the officials may be more harshly punished than the rank and file for their conduct in violation of the no-strike clause and an employer’s selective discipline of the offending union official will not constitute an unfair labor practice.” Id. at 341. Fournelle did not reach the question whether selective discipline could be an unfair labor practice if there were no such collectively bargained higher duties, and if the union official did not lead the unprotected strike. Id. at 338.
The ALJ noted, and Miller does not contest, that the no-strike clause of the collective bargaining agreement between Miller and the electricians “has no special undertaking that could be said to place a special or specific duty upon the stewards in connection with forbidden work stoppages. It simply provides that the Union agrees for itself and its members that there shall be no (forbidden) work stoppage.” This is what the court in Fournelle referred to as a “neutral” or “general” no-strike clause, and hence is an insufficient waiver under Fournelle.
In Fournelle, the parties’ permanent umpire had clearly interpreted the parties’ collective bargaining agreement as imposing higher duties on union officials. We held that such a clear arbitral decision should be given effect as the authoritative interpretation of the agreement. The Board had therefore erred in ignoring the arbitrator’s decision and concluding that the selective discipline of a union steward who participated in an unauthorized strike was an unfair labor practice.
Miller noted at the hearing before the ALJ that an arbitrator had upheld the discharges of Szewczuga and Treichel; Miller did not make the arbitrator’s decision a part of the administrative record, however. Nor, as the ALJ noted, did Miller “raise [the arbitral] result, or deferral to the arbitration, as a defense.” The decision in Fournelle was handed down after the conclusion of the administrative proceedings in this case, and indeed after the conclusion of the normal briefing of this case. The question is what effect, if any, we should now give to the arbitrator’s decision, in light of the intervening decision in Fournelle.
It is plain that we cannot simply decide at this point that the collective bargaining agreement should be interpreted to impose higher duties on union officials. The court in Fournelle stated that an arbitral decision, in order to be controlling, must provide a “clear indication of the meaning of the agreement.” There is no indication on the present record whether the arbitrator’s award was sufficiently clear, or indeed if it rested on the ground that the collective bargaining agreement imposed higher duties on union officials.
Miller requests, however, that this court remand these proceedings to the Board so that the arbitral decision can be placed in the record and considered by the Board in light of Fournelle. The Board and the stewards oppose this request, contending that section 10(e) • of the Act, 29 U.S.C. § 160(e), precludes such a remand. Section 10(e) provides in pertinent part:
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.... If either party shall apply to the court for leave to adduce additional evidence and shall show to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the hearing before the Board, its member, agent, or agency, the court may order such additional evidence to be taken before the Board, its member, agent, or agency, and to be made a part of the record. The Board may modify its findings... and shall file its recommendations, if any, for the modification or setting aside of its original order.
Section'10(e) requires that we ask two-questions: (1) was there a failure to raise an “objection” based upon the arbitrator’s decision, and (2) was any such failure excused because of “extraordinary circumstances”? If the objection was raised, or if failure to raise it was excused because of extraordinary circumstances, then we may consider whether additional evidence relevant to the objection should be adduced before the Board.
The argument that the arbitrator’s decision might provide evidence of the meaning of the collective bargaining agreement was not raised before the Board. Miller contends that, because it argued before the Board in general terms that the stewards’ discipline was contractually authorized, the argument based upon the arbitral award is not a new “objection” within the meaning of section 10(e). We disagree. As this court stated in Consolidated Freightways v. NLRB, 669 F.2d 790 (D.C.Cir.1981), the “critical inquiry” in determining whether an objection has been presented to the Board for purposes of section 10(e) is “whether the objections made before the Board were adequate to put the Board on notice that the issue might be pursued on appeal.” Id. at 794. In this case it is apparent that Miller gave the Board no hint that it considered the arbitral decision relevant to the question of contractual interpretation, or that the issue might be pursued on appeal.
Since the objection was not raised, the next question is whether failure to raise it was “excused because of extraordinary circumstances.” Miller argues that this court’s decision in Fournelle, announced shortly before oral argument in the present case, constitutes an extraordinary circumstance. Again, we disagree. The courts of appeals have generally held that intervening decisional law that suggests to a party a new ground for objection to a Board order is not an extraordinary circumstance within the meaning of section 10(e). See, e.g., NLRB v. Newton-New Haven Co., 506 F.2d 1035 (2d Cir. 1974); NLRB v. Pinkerton’s National Detective Agency, 202 F.2d 230 (9th Cir. 1953). Miller relies on the Fifth Circuit’s decision in NLRB v. Robin American Corp., 667 F.2d 1170, 1171 (5th Cir. 1982), in which the court held that an intervening Supreme Court decision that overruled a “previously controlling” Fifth Circuit doctrine was an extraordinary circumstance justifying remand. The court noted, however, that it reached this result only because, at the time of the administrative proceedings, it would have been “futile, if not frivolous” to present an appropriate objection, given the previously controlling Fifth Circuit precedent. The court suggested that the simple pronouncement of an intervening “new doctrine” would not constitute an “extraordinary circumstance” under section 10(e), and cited the Newton-New Haven and Pinkerton’s cases, supra, for comparison.
It is apparent that the present case is quite different from the Robin American case. The Fournelle decision did not overrule any previously controlling precedent that would have made an objection based on the arbitrator’s award futile or frivolous. Fournelle holds that certain arbitral awards must be given effect as the authoritative interpretation of the no-strike clause. But the Board has had, since Spielberg Mfg. Co., 112 N. L. R. B. 1080 (1955), a policy of deferral to arbitration awards in appropriate circumstances. See Banyard v. NLRB, 505 F.2d 342 (D.C.Cir.1974). Miller might have argued for such deferral in this case, but did not do so. Such an attempt would clearly not have been futile or frivolous, even if Fournelle might now improve its chances of success. We conclude that Miller’s failure to present an objection based on the arbitral award was not excused by extraordinary circumstances, and therefore we refuse to consider that objection now, and decline to remand to the Board. We therefore proceed to decide this case on the record before us.
2. Selective discipline under the NLRA
As we have already noted, the record contains no evidence that the collective bargaining process has imposed any special duties on union officials or that it has provided for selective discipline of union officials who engage in unprotected strikes. Instead, the collective bargaining agreement contains only a general no-strike provision stating that “the Union agrees for itself and its members that there shall be no strike of any kind,” and that, in the event of a forbidden strike, “the Employer may impose such disciplinary action against any or all employees involved as it may deem necessary, including discharge.” It is well established that an employer may discipline any or all of the participants in a contractually forbidden strike, as long as the discipline does not impermissibly discriminate against the employees’ exercise of the rights protected by section 7 of the Act, 29 U.S.C. § 157. See Fournelle, supra, 670 F.2d at 335-36 and cases there cited. The collective bargaining agreement between Miller and the electricians recognizes this general employer’s prerogative. The question in the present case, however, is whether the selective discipline of union officials, without explicit collectively bargained authorization for that selective discipline, discriminates against the exercise of section 7 rights so as to violate sections 8(a)(1) and (3) of the Act. The Third and Seventh Circuits have addressed this question, and have held that such selective discipline violates the Act.
In Metropolitan Edison Co. v. NLRB, 663 F.2d 478 (3d Cir. 1981), cert. granted, - U.S. -, 102 S.Ct. 2926, 73 L.Ed.2d 1327 (1982), the court began with the indisputable premise that the right to hold union office “is the essence of protected union activities,” id. at 482 (citing General Motors Corp., 218 N.L.R.B. 472, 477 (1975), enforced mem., 535 F.2d 1246 (3d Cir. 1976)). The exercise of this right, the court reasoned, would be unreasonably restricted by allowing an employer the right unilaterally to impose selective discipline on union officials who participate in unprotected strikes:
Allowing the discriminatory punishment that the Company imposed on [the union officers] might deter others from seeking union office because of the fear that, if an illegal strike were to occur, they would be put into an untenable position: either obey the company and lose their authority, or follow their own judgment and risk harsher punishment. It is because of this dilemma that we will not interpret a collective bargaining agreement to impose additional responsibilities on union officials absent clear language showing that the union agreed to it.
663 F.2d at 482-83 (footnote omitted). Therefore, the court held, the employer had violated the Act by giving disparately harsh suspensions to two stewards who refused to cross a picket line established by rank-and-file employees in violation of the no-strike clause.
Similarly, in C. H. Heist Corp. v. NLRB, 657 F.2d 178 (7th Cir. 1981), the court held it “inherently destructive” of union members’ rights to seek and hold union office for the employer to single out for discharge a union steward in the wake of an unprotected strike, when the collective bargaining agreement contained no provision of “higher responsibilities” for union officials during such strikes, and when the steward had sought to dissuade the other strikers.
We find the reasoning of the courts in the Metropolitan Edison and C. H. Heist cases persuasive. The selective discipline of union officials who are under no collectively bargained duty to take special measures to end unauthorized strikes may deter employees in the exercise of their protected right to seek and hold union office. We note, without resting our decision on the point, that Miller’s discharge of stewards Szewczuga and Treichel has had just such a destructive effect on employee rights: after the announcement of the discharges, steward Collins resigned his union post, and since then the union has been unable to persuade any of its members to serve as stewards. The right of union officials to be free from selective discipline for participation in unauthorized strikes may be waived, Fournelle, supra, 670 F.2d at 338-41, but that does not mean that an employer may unilaterally increase the burdens associated with the holding of union office. Therefore we hold that an employer violates the Act by punishing union officials more harshly than the rank and file for their simple participation in conduct in violation of the no-strike clause, when the collective bargaining process has imposed no special responsibilities or liabilities on union officials.
IV. The Stewards’ Challenge to the Board’s Order
The two stewards, who substantially prevailed before the Board, challenge only one aspect of the Board’s order: they claim that the Board erred in refusing to award them full back pay to the date of their discharge. They argue that, because the Board found that “these two stewards could have done little else but what they did,” the two stewards were not properly subject to any punishment, and that it was therefore inconsistent for the Board to limit the back pay remedy to the period by which the two stewards’ discipline exceeded the three-day suspensions giyen to the other strikers.
The simple answer to this argument is the one given by Chairman Fanning in his opinion for the Board: the Board’s remedy wholly redresses the two stewards for that portion of the discipline that the Board found illegal. The two stewards left work; in so doing they engaged in unprotected activity. The two stewards’ attempts to persuade their fellow workers to stay at work did not make their own departure from work protected activity. They were thus subject to discipline, as long as that discipline was not imposed in a manner that discriminated against the exercise of the protected right to seek and hold union office. The Board, “in the exercise of its informed discretion,” is entitled to deference in its use of the back pay remedy, “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. NLRB, 319 U.S. 533, 540, 63 S.Ct. 1214, 1218, 87 L.Ed. 1568 (1943). We find no reason to disturb the Board’s order.
V. Conclusion
For the reasons set forth above, we enforce the Board’s order in all respects. We reject Miller’s contentions that the tw;o stewards were strike leaders, that Miller believed in good faith that they were strike leaders, and that the Act permits the selective discharge of union officials in circumstances like these. We further reject the stewards’ contention that the Board erred in failing to award them full back pay to the date of their discharge.
It is so ordered.
. Sections 8(a)(1) and (3), 29 U.S.C. §§ 158(a)(1), (3), provide, in pertinent part:
(a) Unfair labor practices by employer
It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title;
(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....
. This court has jurisdiction under 29 U.S.C. §§ 160(e) & (f).
. Miller Appendix (“App.”) at 2.
. Id. at 3-5.
. Id. at 21-49.
. Miller Brewing Co., 254 N. L. R. B. No. 24 (1981), App. at 7-20.
. The findings of the ALJ are supported by substantial evidence. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). See infra part III A.
. App. at 28.
. Id. at 27-28.
. Id. at 28-29.
. Id. at 29.
. One reason for the strong reaction of the electricians to the news of this work-assignment decision was that the electricians had lost similar work-assignment disputes to the machinists in the past. App. at 25-26.
. App. at 29.
. Id at 30.
. Id. at 32.
. Id. at 30, 31.
. Id. at 33.
. Id. at 33-34.
. Id. at 34.
. Id. at 34-35.
. Id. at 36.
. Id. at 36-38.
. Id. at 38-39.
. See infra pp. 968-969.
. App. at 40.
. Id. at 42.
. Id. at 43.
. Id.
. Id. at 42.
. Id. at 45.
. Id. at 44-46. See, e.g., Precision Castings Co., 233 N. L. R. B. 183 (1977). The rule announced in Precision Castings has had a mixed reception in the courts of appeals. See Fournelle v. NLRB, 670 F.2d 331, 338-40 (D.C.Cir.1982), and cases cited there.
. App. at 47-48.
. 254 N. L. R. B. No. 24; App. at 7-20. Chairman Fanning wrote for the majority. Member Jenkins concurred, but stated that he would not have reduced the back pay ordered by the ALJ by three days. App. at 15-17; see infra part IV. Member Pennello dissented on the ground that the stewards, as union officials, “had a higher duty than other employees to abide by and enforce the contractual no-strike provision.” App. at 17-19.
Both the ALJ and the Board sought to distinguish Indiana & Michigan Elec. Co. v. NLRB, 599 F.2d 227 (7th Cir. 1979). The Indiana & Michigan decision denied enforcement of a Board order that found it a violation of the Act for an employer to impose disparate discipline on union officials who participated in, but did not lead, an unauthorized work stoppage. The ALJ noted that the collective bargaining agreement in Indiana & Michigan imposed special duties on union officials during unauthorized strikes, while the agreement between Miller and the electricians did not. App. at 45 & n.15. The Board did not disapprove this reasoning, but was apparently troubled by certain language in the Indiana & Michigan decision suggesting that union officials have a “higher responsibility that accompanies [their] status,” 599 F.2d at 230. The Board in this case thus added the additional argument that, even assuming that union officials may have such higher responsibilities as a result of their status alone, the conduct of stewards Treichel and Szewczuga was sufficient to discharge such responsibilities. See App. at 11.
The Indiana & Michigan case has been clarified by later decisions. The Seventh Circuit, in C. H. Heist Corp. v. NLRB, 657 F.2d 178, 182-83 (7th Cir. 1981), has interpreted Indiana & Michigan to require some contractual basis for a union official’s higher responsibilities. The Third Circuit in Metropolitan Edison Co. v. NLRB, 663 F.2d 478, 482 n.1 (3d Cir. 1981), cert. granted, - U.S. -, 102 S.Ct. 2926, 73 L.Ed.2d 1327 (1982), has disapproved the Indiana & Michigan case insofar as it suggests that union officials may be selectively disciplined even if there is no collectively bargained authorization for such punishment. This court’s decision in Foumelie v. NLRB, 670 F.2d 331 (D.C.Cir.1982), holds that an arbitral decision may be the source of higher responsibilities for union officials but does not hold that a union official’s status alone may justify disparate punishment.
We do not address the Board’s attempts to provide an additional distinction of the Indiana & Michigan case. The ALJ’s distinction, based upon the absence of collectively bargained higher duties in
Question: What is the specific issue in the case within the general category of "labor relations"?
A. union organizing
B. unfair labor practices
C. Fair Labor Standards Act issues
D. Occupational Safety and Health Act issues (including OSHA enforcement)
E. collective bargaining
F. conditions of employment
G. employment of aliens
H. which union has a right to represent workers
I. non civil rights grievances by worker against union (e.g., union did not adequately represent individual)
J. other labor relations
Answer:
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sc_issue_3
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S
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
OSBORNE v. OHIO
No. 88-5986.
Argued December 5, 1989
Decided April 18, 1990
White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Blackmun, O’Connor, Scalia, and Kennedy, JJ., joined. Blackmun, J., filed a concurring opinion, post, p. 126. Brennan, J., filed a dissenting opinion, in which Marshall and Stevens, JJ., joined, post, p. 126.
S. Adele Shank argued the cause for appellant. With her on the briefs were Randall M. Dana, John Quigley, and David Goldberger.
Ronald J. O’Brien argued the cause and filed a brief for appellee.
Briefs of amid curiae urging affirmance were filed for the Attorneys General for the State of Arizona et al. by Anthony J. Celebrezze, Jr., Attorney General of Ohio, Andrew I. Sutter, Assistant Attorney General, and Loren L. Braverman, and by the Attorneys General for their respective States as follows: Robert K. Corbin of Arizona, Robert A. Butterworth of Florida, James T. Jones of Idaho, Linley E. Pearson of Indiana, Thomas J. Miller of Iowa, Robert T. Stephan of Kansas, James M. Shannon of Massachusetts, Frank J. Kelley of Michigan, William L. Webster of Missouri, Brian McKay of Nevada, Roger A. Tellinghuisen of South Dakota, and Kenneth O. Eikenberry of Washington; for the American Family Association, Inc., by Peggy M. Coleman; for the Children’s Legal Foundation by Alan E. Sears; for Concerned Women for America et al. by H. Robert Showers, Wendell R. Bird, Jordan W. Lorence, and Cimron Campbell; and for Covenant House et al. by Gregory A. Loken and Judith Drazen Schretter.
Justice White
delivered the opinion of the Court.
In order to combat child pornography, Ohio enacted Rev. Code Ann. § 2907.323(A)(3) (Supp. 1989), which provides in pertinent part:
“(A) No person shall do any of the following:
“(3) Possess or view any material or performance that shows a minor who is not the person’s child or ward in a state of nudity, unless one of the following applies:
“(a) The material or performance is sold, disseminated, displayed, possessed, controlled, brought or caused to be brought into this state, or presented for a bona fide artistic, medical, scientific, educational, religious, governmental, judicial, or other proper purpose, by or to a physician, psychologist, sociologist, scientist, teacher, person pursuing bona fide studies or research, librarian, clergyman, prosecutor, judge, or other person having a proper interest in the material or performance.
“(b) The person knows that the parents, guardian, or custodian has consented in writing to the photographing or use of the minor in a state of nudity and to the manner in which the material or performance is used or transferred.”
Petitioner, Clyde Osborne, was convicted of violating this statute and sentenced to six months in prison, after the Columbus, Ohio, police, pursuant to a valid search, found four photographs in Osborne’s home. Each photograph depicts a nude male adolescent posed in a sexually explicit position.
The Ohio Supreme Court affirmed Osborne’s conviction, after an intermediate appellate court did the same. State v. Young, 37 Ohio St. 3d 249, 525 N. E. 2d 1363 (1988). Relying on one of its earlier decisions, the court first rejected Osborne’s contention that the First Amendment prohibits the States from proscribing the private possession of child pornography.
Next, the court found that § 2907.323(A)(3) is not unconstitutionally overbroad. In so doing, the court, relying on the statutory exceptions, read § 2907.323(A)(3) as only applying to depictions of nudity involving a lewd exhibition or graphic focus on a minor’s genitals. The court also found that scienter is an essential element of a §2907.323(A)(3) offense. Osborne objected that the trial judge had not insisted that the government prove lewd exhibition and scienter as elements of his crime. The Ohio Supreme Court rejected these contentions because Osborne had failed to object to the jury instructions given at his trial and the court did not believe that the failures of proof amounted to plain error.
The Ohio Supreme Court denied a motion for rehearing, and granted a stay pending appeal to this Court. We noted probable jurisdiction last June. 492 U. S. 904.
I
The threshold question in this case is whether Ohio may constitutionally proscribe the possession and viewing of child pornography or whether, as Osborne argues, our decision in Stanley v. Georgia, 394 U. S. 557 (1969), compels the contrary result. In Stanley, we struck down a Georgia law outlawing the private possession of obscene material. We recognized that the statute impinged upon Stanley’s right to receive information in the privacy of his home, and we found Georgia’s justifications for its law inadequate. Id., at 564-568.
Stanley should not be read too broadly. We have previously noted that Stanley was a narrow holding, see United States v. 12 200-ft. Reels of Film, 413 U. S. 123, 127 (1973), and, since the decision in that case, the value of permitting child pornography has been characterized as “exceedingly modest, if not de minimis.” New York v. Ferber, 458 U. S. 747, 762 (1982). But assuming, for the sake of argument, that Osborne has a First Amendment interest in viewing and possessing child pornography, we nonetheless find this case distinct from Stanley because the interests underlying child pornography prohibitions far exceed the interests justifying the Georgia law at issue in Stanley. Every court to address the issue has so concluded. See, e. g., People v. Geever, 122 Ill. 2d 313, 327-328, 522 N. E. 2d 1200, 1206-1207 (1988); Felton v. State, 526 So. 2d 635, 637 (Ala. Ct. Crim. App.), aff’d sub nom. Ex parte Felton, 526 So. 2d 638, 641 (Ala. 1988); State v. Davis, 53 Wash. App. 502, 505, 768 P. 2d 499, 501 (1989); Savery v. State, 767 S. W. 2d 242, 245 (Tex. App. 1989); United States v. Boffardi, 684 F. Supp. 1263, 1267 (SDNY 1988).
In Stanley, Georgia primarily sought to proscribe the private possession of obscenity because it was concerned that obscenity would poison the minds of its viewers. 394 U. S., at 565. We responded that “[wjhatever the power of the state to control public dissemination of ideas inimical to the public morality, it cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts.” Id., at 566. The difference here is obvious: The State does not rely on a paternalistic interest in regulating Osborne’s mind. Rather, Ohio has enacted §2907.323(A)(3) in order to protect the victims of child pornography; it hopes to destroy a market for the exploitative use of children.
“It is evident beyond the need for elaboration that a State’s interest in ‘safeguarding the physical and psychological well-being of a minor’ is ‘compelling.’... The legislative judgment, as well as the judgment found in relevant literature, is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child. That judgment, we think, easily passes muster under the First Amendment.” Ferber, 458 U. S., at 756-758 (citations omitted). It is also surely reasonable for the State to conclude that it will decrease the production of child pornography if it penalizes those who possess and view the product, thereby decreasing demand. In Ferber, where we upheld a New York statute outlawing the distribution of child pornography, we found a similar argument persuasive: “The advertising and selling of child pornography provide an economic motive for and are thus an integral part of the production of such materials, an activity illegal throughout the Nation. Tt rarely has been suggested that the constitutional freedom for speech and press extends its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal statute.’” Id., at 761-762, quoting Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 498 (1949).
Osborne contends that the State should use other measures, besides penalizing possession, to dry up the child pornography market. Osborne points out that in Stanley we rejected Georgia’s argument that its prohibition on obscenity possession was a necessary incident to its proscription on obscenity distribution. 394 U. S., at 567-568. This holding, however, must be viewed in light of the weak interests asserted by the State in that case. Stanley itself emphasized that we did not “mean to express any opinion on statutes making criminal possession of other types of printed, filmed, or recorded materials.... In such cases, compelling reasons may exist for overriding the right of the individual to possess those materials.” Id., at 568, n. 11.
Given the importance of the State’s interest in protecting the victims of child pornography, we cannot fault -Ohio for attempting to stamp out this vice at all levels in the distribution chain. According to the State, since the time of our decision in Ferber, much of the child pornography market has been driven underground; as a result, it is now difficult, if not impossible, to solve the child pornography problem by only attacking production and distribution. Indeed, 19 States have found it necessary to proscribe the possession of this material.
Other interests also support the Ohio law. First, as Ferber recognized, the materials produced by child pornographers permanently record the victim’s abuse. The pornography’s continued existence causes the child victims continuing harm by haunting the children in years to come. 458 U. S., at 759. The State’s ban on possession and viewing encourages the possessors of these materials to destroy them. Second, encouraging the destruction of these materials is also desirable because evidence suggests that pedophiles use child pornography to seduce other children into sexual activity.
Given the gravity of the State’s interests in this context, we find that Ohio may constitutionally proscribe the possession and viewing of child pornography.
II
Osborne next argues that even if the State may constitutionally ban the possession of child pornography, his conviction is invalid because §2907.323(A)(3) is unconstitutionally overbroad in that it criminalizes an intolerable range of constitutionally protected conduct. In our previous decisions discussing the First Amendment overbreadth doctrine, we have repeatedly emphasized that where a statute regulates expressive conduct, the scope of the statute does not render it unconstitutional unless its overbreadth is not only “real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep. ” Broadrick v. Oklahoma, 413 U. S. 601, 615 (1973). Even where a statute at its margins infringes on protected expression, “facial invalidation is inappropriate if the ‘remainder of the statute... covers a whole range of easily identifiable and constitutionally proscribable... conduct....’” New York v. Ferber, 458 U. S., at 770, n. 25.
The Ohio statute, on its face, purports to prohibit the possession of “nude” photographs of minors. We have stated that depictions of nudity, without more, constitute protected expression. See Ferber, supra, at 765, n. 18. Relying on this observation, Osborne argues that the statute as written is substantially overbroad. We are skeptical of this claim because, in light of the statute’s exemptions and “proper purposes” provisions, the statute may not be substantially overbroad under our cases. However that may be, Osborne’s overbreadth challenge, in any event, fails because the statute, as construed by the Ohio Supreme Court on Osborne’s direct appeal, plainly survives overbreadth scrutiny. Under the Ohio Supreme Court reading, the statute prohibits “the possession or viewing of material or performance of a minor who is in a state of nudity, where such nudity constitutes a lewd exhibition or involves a graphic focus on the genitals, and where the person depicted is neither the child nor the ward of the person charged.” 37 Ohio St. 3d, at 252, 525 N. E. 2d, at 1368. By limiting the statute’s operation in this manner, the Ohio Supreme Court avoided penalizing persons for viewing or possessing innocuous photographs of naked children. We have upheld similar language against overbreadth challenges in the past. In Ferber, we affirmed a conviction under a New York statute that made it a crime to promote the “ ‘lewd exhibition of [a child’s] genitals.’ ” 458 U. S., at 751. We noted that “[t]he term ‘lewd exhibition of the genitals’ is not unknown in this area and, indeed, was given in Miller [v. California, 413 U. S. 15 (1973),] as an example of a permissible regulation.” Id., at 765.
The Ohio Supreme Court also concluded that the State had to establish scienter in order to prove a violation of § 2907.323 (A)(3) based on the Ohio default statute specifying that recklessness applies when another statutory provision lacks an intent specification. See n. 9, supra. The statute on its face lacks a mens rea requirement, but that omission brings into play and is cured by another law that plainly satisfies the requirement laid down in Ferber that prohibitions on child pornography include some element of scienter. 458 U. S., at 765.
Osborne contends that it was impermissible for the Ohio Supreme Court to apply its construction of §2907.323(A)(3) to him — i. e., to rely on the narrowed construction of the statute when evaluating his overbreadth claim. Our cases, however, have long held that a statute as construed “may be applied to conduct occurring prior to the construction, provided such application affords fair warning to the defendant.” Dombrowski v. Pfister, 380 U. S. 479, 491, n. 7 (1965) (citations omitted). In Hamling v. United States, 418 U. S. 87 (1974), for example, we reviewed the petitioners’ convictions for mailing and conspiring to mail an obscene advertising brochure under 18 U. S. C. § 1461. That statute makes it a crime to mail an “obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance.” In Hamling, for the first time, we construed the term “obscenity” as used in § 1461 “to be limited to the sort of ‘patently offensive representations or depictions of that specific “hard core” sexual conduct given as examples in Miller v. California.’” In light of this construction, we rejected the petitioners’ facial challenge to the statute as written, and we affirmed the petitioners’ convictions under the section after finding that the petitioners had fair notice that their conduct was criminal. 418 U. S., at 114-116.
Like the Hamling petitioners, Osborne had notice that his conduct was proscribed. It is obvious from the face of §2907.323(A) (3) that the goal of the statute is to eradicate child pornography. The provision criminalizes the viewing and possessing of material depicting children in a state of nudity for other than “proper purposes.” The provision appears in the “Sex Offenses” chapter of the Ohio Code. Section 2907.323 is preceded by §2907.322, which proscribes “[p]andering sexually oriented matter involving a minor,” and followed by §2907.33, which proscribes “[deception to obtain matter harmful to juveniles.” That Osborne’s photographs of adolescent boys in sexually explicit situations constitute child pornography hardly needs elaboration. Therefore, although § 2907.323(A)(3) as written may have been imprecise at its fringes, someone in Osborne’s position would not be surprised to learn that his possession of the four photographs at issue in this case constituted a crime.
Because Osborne had notice that his conduct was criminal, his case differs from three cases upon which he relies: Bouie v. City of Columbia, 378 U. S. 347 (1964), Rabe v. Washing ton, 405 U. S. 313 (1972), and Marks v. United States, 430 U. S. 188 (1977). In Bouie, the petitioners had refused to leave a restaurant after being asked to do so by the restaurant’s manager. Although the manager had not objected when the petitioners entered the restaurant, the petitioners were convicted of violating a South Carolina trespass statute proscribing “ ‘entry upon the lands of another... after notice from the owner or tenant prohibiting such entry.’” 378 U. S., at 349. Affirming the convictions, the South Carolina Supreme Court construed the trespass law as also making it a crime for an individual to remain on another’s land after being asked to leave. We reversed the convictions on due process grounds because the South Carolina Supreme Court’s expansion of the statute was unforseeable and therefore the petitioners had no reason to suspect that their conduct was criminal. Id., at 350-352.
Likewise, in Rabe v. Washington, supra, the petitioner had been convicted of violating a Washington obscenity statute that, by its terms, did not proscribe the defendant’s conduct. On the petitioner’s appeal, the Washington Supreme Court nevertheless affirmed the petitioner’s conviction, after construing the Washington obscenity statute to reach the petitioner. We overturned the conviction because the Washington Supreme Court’s broadening of the statute was unexpected; therefore the petitioner had no warning that his actions were proscribed. Id., at 315.
And, in Marks v. United States, supra, we held that the retroactive application of the obscenity standards announced in Miller v. California, 413 U. S. 15 (1973), to the potential detriment of the defendant violated the Due Process Clause because, at the time that the defendant committed the challenged conduct, our decision in Memoirs v. Attorney General of Massachusetts, 383 U. S. 413 (1966), provided the governing law. The defendant could not suspect that his actions would later become criminal when we expanded the range of constitutionally proscribable conduct in Miller.
Osborne suggests that our decision here is inconsistent with Shuttlesworth v. Birmingham, 382 U. S. 87 (1965). We disagree. In Shuttlesworth, the defendant had been convicted of violating an Alabama ordinance that, when read literally, provided that “a person may stand on a public sidewalk in Birmingham only at the whim of any police officer of that city.” Id., at 90. We stated that “[t]he constitutional vice of so broad a provision needs no demonstration.” Ibid. As subsequently construed by the Alabama Supreme Court, however, the ordinance merely made it criminal for an individual who was blocking free passage along a public street to disobey a police officer's order to move. We noted that “[i]t is our duty, of course, to accept this state judicial construction of the ordinance.... As so construed, we cannot say that the ordinance is unconstitutional, though it requires no great feat of imagination to envisage situations in which such an ordinance might be unconstitutionally applied.” Id., at 91. We nevertheless reversed the defendant’s conviction because it was not clear that the State had convicted the defendant under the ordinance as construed rather than as written. Id., at 91-92. Shuttlesworth, then, stands for the proposition that where a State Supreme Court narrows an unconstitutionally overbroad statute, the State must ensure that defendants are convicted under the statute as it is subsequently construed and not as it was originally written; this proposition in no way conflicts with our holding in this case.
Finally, despite Osborne’s contention to the contrary, we do not believe that Massachusetts v. Oakes, 491 U. S. 576 (1989), supports his theory of this case. In Oakes, the petitioner challenged a Massachusetts pornography statute as overbroad; since the time of the defendant’s alleged crime, however, the State had substantially narrowed the statute through a subsequent legislative enactment — an amendment to the statute. In a separate opinion, five Justices agreed that the state legislature could not cure the potential over-breadth problem through the subsequent legislative action; the statute was void as written. Id., at 585-586.
Osborne contends that Oakes stands for a similar but distinct proposition that, when faced with a potentially overinclusive statute, a court may not construe the statute to avoid overbreadth problems and then apply the statute, as construed, to past conduct. The implication of this argument is that if a statute is overbroad as written, then the statute is void and incurable. As a result, when reviewing a conviction under a potentially overbroad statute, a court must either affirm or strike down the statute on its face, but the court may not, as the Ohio Supreme Court did in this case, narrow the statute, affirm on the basis of the narrowing construction, and leave the statute in full force. We disagree.
First, as indicated by our earlier discussion, if we accepted this proposition, it would require a radical reworking of our law. Courts routinely construe statutes so as to avoid the statutes’ potentially overbroad reach, apply the statute in that case, and leave the statute in place. In Roth v. United States, 354 U. S. 476 (1957), for example, the Court construed the open-ended terms used in 18 U. S. C. § 1461, which prohibits the mailing of material that is “obscene, lewd, lascivious, indecent, filthy or vile.” Justice Harlan characterized Roth in this way:
“The words of §1461, ‘obscene, lewd, lascivious, indecent, filthy or vile,’ connote something that is portrayed in a manner so offensive as to make it unacceptable under current community mores. While in common usage the words have different shades of meaning, the statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex. Although the statute condemns such material irrespective of the effect it may have upon those into whose hands it falls, the early case of United States v. Bennet, 24 Fed. Cas. 1093 (No. 14571), put a limiting gloss upon the statutory language: the statute reaches only indecent material which, as now expressed in Roth v. United States, supra, at 489, ‘taken as a whole appeals to prurient interest.’” Manuel Enterprises, Inc. v. Day, 370 U. S. 478, 482-484 (1962) (footnotes omitted; emphasis in original).
See also, Hamling, 418 U. S., at 112 (quoting the above). The petitioner’s conviction was affirmed in Roth, and federal obscenity law was left in force. 354 U. S., at 494. We, moreover, have long respected the State Supreme Courts’ ability to narrow state statutes so as to limit the statute’s, scope to unprotected conduct. See, e. g., Ginsberg v. New York, 390 U. S. 629 (1968).
Second, we do not believe that Oakes compels the proposition that Osborne urges us to accept. In Oakes, Justice Scalia, writing for himself and four others, reasoned:
“The overbreadth doctrine serves to protect constitutionally legitimate speech not merely ex post, that is, after the offending statute is enacted, but also ex ante, that is, when the legislature is contemplating what sort of statute to enact. If the promulgation of overbroad laws affecting speech was cost free... that is, if no conviction of constitutionally proscribable conduct would be lost, so long as the offending statute was narrowed before the final appeal... then legislatures would have significantly reduced incentive to stay within constitutional bounds in the first place. When one takes ac-' count of those overbroad statutes that are never challenged, and of the time that elapses before the ones that are challenged are amended to come within constitutional bounds, a substantial amount of legitimate speech would be ‘chilled’....” 491 U. S., at 586 (emphasis in original).
In other words, five of the Oakes Justices feared that if we allowed a legislature to correct its mistakes without paying for them (beyond the inconvenience of passing a new law), we would decrease the legislature’s incentive to draft a narrowly tailored law in the first place.
Legislators who know they can cure their own mistakes by amendment without significant cost may not be as careful to avoid drafting overbroad statutes as they might otherwise be. But a similar effect will not be likely if a judicial construction of a statute to eliminate overbreadth is allowed to be applied in the case before the court. This is so primarily because the legislatures cannot be sure that the statute, when examined by a court, will be saved by a narrowing construction rather than invalidated for overbreadth. In the latter event, there could be no convictions under that law even of those whose own conduct is unprotected by the First Amendment. Even if construed to obviate overbreadth, applying the statute to pending cases might be barred by the Due Process Clause. Thus, careless drafting cannot be considered to be cost free based on the power of the courts to eliminate overbreadth by statutory construction.
There are also other considerations. Osborne contends that when courts construe statutes so as to eliminate over-breadth, convictions of those found guilty of unprotected conduct covered by the statute must be reversed and any further convictions for prior reprehensible conduct are barred. Furthermore, because he contends that overbroad laws implicating First Amendment interests are nullities and incapable of valid application from the outset, this would mean that judicial construction could not save the statute even as applied to subsequent conduct unprotected by the First Amendment. The overbreadth doctrine, as we have recognized, is indeed “strong medicine,” Broadrick v. Oklahoma, 413 U. S., at 613, and requiring that statutes be facially invalidated whenever overbreadth is perceived would very likely invite reconsideration or redefinition of the doctrine in a way that would not serve First Amendment interests.
III
Having rejected Osborne’s Stanley and overbreadth arguments, we now reach Osborne’s final objection to his conviction: his contention that he was denied due process because it is unclear that his conviction was based on a finding that each of the elements of § 2907.323(A)(3) was present. According to the Ohio Supreme Court, in order to secure a conviction under § 2907.323(A)(3), the State must prove both scienter and that the defendant possessed material depicting a lewd exhibition or a graphic focus on genitals. The jury in this case was not instructed that it could convict Osborne only for conduct that satisfied these requirements.
The State concedes the omissions in the jury instructions, but argues that Osborne waived his right to assert this due process challenge because he failed to object when the instructions were given at his trial. The Ohio Supreme Court so held, citing Ohio law. The question before us now, therefore, is whether we are precluded from reaching Osborne’s due process challenge because counsel’s failure to comply with the procedural rule constitutes an independent state-law ground adequate to support the result below. We have no difficulty agreeing with the State that Osborne’s counsel’s failure to urge that the court instruct the jury on scienter constitutes an independent and adequate state-law ground preventing us from reaching Osborne’s due process contention on that point. Ohio law states that proof of scienter is required in instances, like the present one, where a criminal statute does not specify the applicable mental state. See n. 9, supra. The state procedural rule, moreover, serves the State’s important interest in ensuring that counsel do their part in preventing trial courts from providing juries with erroneous instructions.
With respect to the trial court’s failure to instruct on lewdness, however, we reach a different conclusion: Based upon our review of the record, we believe that counsel’s failure to object on this point does not prevent us from considering Osborne’s constitutional claim. Osborne’s trial was brief: The State called only the two arresting officers to the stand; the defense summoned only Osborne himself. Right before trial, Osborne’s counsel moved to dismiss the case, contending that § 2907.323(A)(3) is unconstitutionally overbroad. Counsel stated:
“I’m filing a motion to dismiss based on the fact that [the] statute is void for vagueness, overbroad... The statute’s overbroad because... a person couldn’t have pictures of his own grandchildren; probably couldn’t even have nude photographs of himself.
“Judge, if you had some nude photos of yourself when you were a child, you would probably be violating the law....
“So grandparents, neighbors, or other people who happen to view the photograph are criminally liable under the statute. And on that basis I’m going to ask the Court to dismiss the case.” Tr. 3-4.
The prosecutor informed the trial judge that a number of Ohio state courts had recently rejected identical motions challenging § 2907.323(A)(3). Tr. 5-6. The court then overruled the motion. Id., at 7. Immediately thereafter, Osborne’s counsel proposed various jury instructions. Ibid.
Given this sequence of events, we believe that we may reach Osborne’s due process claim because we are convinced that Osborne’s attorney pressed the issue of the State’s failure of proof on lewdness before the trial court and, under the circumstances, nothing would be gained by requiring Osborne’s lawyer to object a second time, specifically to the jury instructions. The trial judge, in no uncertain terms, rejected counsel’s argument that the statute as written was overbroad. The State contends that counsel should then have insisted that the court instruct the jury on lewdness because, absent a finding that this element existed, a conviction would be unconstitutional. Were we to accept this position, we would “Torce resort to an arid ritual of meaningless form,’... and would further no perceivable state interest.” James v. Kentucky, 466 U. S. 341, 349 (1984), quoting Staub v. City of Baxley, 355 U. S. 313, 320 (1958), and citing Henry v. Mississippi, 379 U. S. 443, 448-449 (1965). As Justice Holmes warned us years ago, “[w]hatever springes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.” Davis v. Wechsler, 263 U. S. 22, 24 (1923).
Our decision here is analogous to our decision in Douglas v. Alabama, 380 U. S. 415 (1965). In that case, the Alabama Supreme Court had held that a defendant had waived his Confrontation Clause objection to the reading into evidence of a confession that he had given. Although not following the precise procedure required by Alabama law, the defendant had unsuccessfully objected to the prosecution’s use of the confession. We followed “our consistent holdings that the adequacy of state procedural bars to the assertion of federal questions is itself a federal question” and stated that “[i]n determining the sufficiency of objections we have applied the general principle that an objection which is ample and timely to bring the alleged federal error to the attention of the trial court and enable it to take appropriate corrective action is sufficient to serve legitimate state interests, and therefore sufficient to preserve the claim for review here.” Id., at 422. Concluding that “[n]o legitimate state interest would have been served by requiring repetition of a patently futile objection,” we held that the Alabama procedural ruling did not preclude our consideration of the defendant’s constitutional claim. Id., at 421-422. We reach a similar conclusion in this case.
IV
To conclude, although we find Osborne’s First Amendment arguments unpersuasive, we reverse his conviction and remand for a new trial in order to ensure that Osborne’s conviction stemmed from a finding that the State had proved each of the elements of § 2907.323(A)(3).
So ordered.
Osborne contends that the subject in all of the pictures is the same boy; Osborne testified at trial that he was told that the youth was 14 at the time that the photographs were taken. App. 16. The government maintains that three of the pictures are of one boy and one of the pictures is of another. Three photographs depict the same boy in different positions: sitting with his legs over his head and his anus exposed; lying down with an erect penis and with an electrical object in his hand; and lying down with a plastic object which appears to be inserted in his anus. The fourth photograph depicts a nude standing boy; it is unclear whether this subject is the same boy photographed in the other pictures because the photograph only depicts the boy’s torso.
Osborne also unsuccessfully raised a number of other challenges that are not at issue before this Court.
We have since indicated that our decision in Stanley was “firmly grounded in the First Amendment.” Bowers v. Hardwick, 478 U. S. 186, 195 (1986).
Georgia also argued that its ban on possession was a necessary complement to its ban on distribution (see discussion infra, at 110) and that the possession law benefited the public because, according to the State, exposure to obscene material might lead to deviant sexual behavior or crimes of sexual violence. 394 U. S., at 566. We found a lack of empirical evidence supporting the latter claim and stated that “ ‘[a]mong free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law....”’ Id., at 566-567 (citation omitted).
As the dissent notes, see post, at 141, n. 16, the Stanley Court cited illicit possession of defense information as an example of the type of offense for which compelling state interests might justify a ban on possession. Stanley, however, did not suggest that this crime exhausted the entire category of proscribable offenses.
Ala. Code § 13A-12-192 (1988); Ariz. Rev. Stat. Ann. § 13-3553 (1989); Colo. Rev. Stat. §18-6-403 (Supp. 1989); Fla. Stat. §827.071 (1989); Ga. Code Ann. § 16-12-100 (1989); Idaho Code § 18-1507 (1987); 111. Rev. Stat., eh. 38, ¶ 11-20- 1 (1987); Kans. Stat. Ann. §21-3516 (Supp. 1989); Minn. Stat. §617.247 (1988); Mo. Rev. Stat. §573.037 (Supp. 1989); Neb. Rev. Stat. §28-809 (1989); Nev. Rev. Stat. §200.730 (1987); Ohio Rev. Code Ann. §§2907.322 and 2907.323 (Supp. 1989); Okla. Stat., Tit. 21, §1021.2 (Supp. 1989); S. D. Codified Laws Ann. §§22-22-23, 22-22-23.1 (1988); Tex. Penal Code Ann. § 43.26 (1989 and Supp. 1989-1990); Utah Code Ann. § 76-5a-3(l)(a) (Supp. 1989); Wash. Rev. Code §9.68A.070 (1989); W. Va. Code § 61-8C-3 (1989).
The Attorney General’s Commission on Pornography, for example, states: “Child pornography is often used as part of a method of seducing child victims. A child who is reluctant to engage
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_counsel1
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D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Alvie THOMPKINS, Plaintiff-Appellant, v. MORRIS BROWN COLLEGE, Defendant-Appellee.
No. 83-8847.
United States Court of Appeals, Eleventh Circuit.
Feb. 4, 1985.
Thomas E. Maddox, Jr., Atlanta, Ga., for plaintiff-appellant.
Lenwood A. Jackson, Atlanta, Ga., for defendant-appellee.
Before KRAVITCH and HENDERSON, Circuit Judges, and ATKINS , District Judge.
The Honorable C. Clyde Atkins, U.S. District Judge for the Southern District of Florida, sitting by designation.
KRAVITCH, Circuit Judge:
Plaintiff Alvie Thompkins brought this employment discrimination suit pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff claims that defendant Morris Brown College discriminated against her by refusing to grant her part-time employment on the same basis as male employees and by discharging her for maintaining full-time employment outside of defendant college while allowing males to maintain such outside employment. Plaintiff also claims that defendant retaliated against her for complaining of this alleged sex discrimination to the Equal Employment Opportunity Commission (EEOC). The court below found in favor of the defendant on both grounds. Because we find that the court applied the wrong legal standard to plaintiff’s claim of sex discrimination, and inadequately analyzed her claim of retaliation, we reverse and remand.
I. BACKGROUND
The district court made the following findings of facts:
Plaintiff, a female, was employed as a full-time instructor of mathematics at defendant college from the fall of 1977 until her discharge in 1980. Plaintiff’s teaching schedule at defendant college for each of the semesters from the fall of 1977 through the fall of 1979 was such that her classes were either all in the early part of the day or all in the latter part of the day. During the academic year 1979-80, plaintiff also was employed as a full-time instructor of math at Douglass High School, requiring her to be at the high school between 8 a.m. and 3 p.m.
Defendant’s policy was to discourage full-time employment outside of defendant college by full-time faculty members. Plaintiff was the only full-time female faculty member with a full-time outside job. With the exception of plaintiff’s predecessor, Mr. Albert Taylor, no other faculty member classified as full time had ever maintained a full-time outside job. There was no evidence to show that Dr. Payne, Vice President of Academic Affairs of defendant college, was ever aware of Taylor’s outside full-time employment. There were persons employed full time elsewhere who were hired by defendant as part-time faculty members. Two such employees were Dr. Mosteller and Dr. Gilliam. Mr. Evans was another male faculty member employed part time at defendant college, but the lower court found no evidence that he had other full-time employment. The lower court found that there was some dispute as to what constituted full-time faculty status at defendant college; “[t]hat is, whether or not the assignment of a courseload of twelve hours or more, in and of itself, rendered a faculty member a full-time employee.” Thompkins v. Morris Brown College, C81-1059A, slip op. at 3 (N.D.Ga. Oct. 31, 1983). The court, however, concluded that Mosteller, Gilliam, and Evans were part-time employees as evidenced by their pay, the lack of any formal requirement to attend faculty meetings, and their understanding of their status. In addition, two women were employed on a part-time basis and assigned ten to twelve hour courseloads.
Mosteller, Gilliam, and Evans taught in the business department. Defendant offered evidence that special needs — including the need for PhDs and the large number of students majoring in business — created the necessity for large courseloads for these part-time teachers. The lower court concluded that “[tjhere was no evidence disputing such contentions.” Id. at 4.
Early in the 1979-80 academic year, Dr. Payne learned that plaintiff had undertaken full-time employment at Douglass High School. He informed her of defendant’s policy against such employment by full-time faculty members, and asked her to decide which full-time job she wanted to keep. Subsequently, in the fall of 1979, Payne had plaintiff assigned to a morning class for the second semester of the academic year, 1979-80. In early January of 1980, Payne visited plaintiff’s morning class and discovered plaintiff absent and a student in charge. Plaintiff had authorized the student to oversee the class in her absence. Payne dismissed the class.
In December of 1979 and January of 1980, Payne again asked plaintiff to decide which job she wanted to keep full time. Plaintiff did not advise Payne of her decision. In letters dated February 8, 1980, and March 4, 1980, Payne notified plaintiff of her termination. Three of plaintiff’s classes were assigned to James Rigdon following plaintiff’s dismissal.
Plaintiff testified that she visited the EEOC in November, 1979, and inquired about her rights. She stated that the EEOC officer called Payne at that time. Payne denied receiving the telephone call and the lower court concluded that it did not appear that Payne received such a call. Plaintiff filed a charge of sex discrimination with the EEOC on January 17, 1980, subsequently amending the charge to include retaliation. On March 3, 1980, the EEOC issued a determination of reasonable cause on both charges.
Plaintiff alleges the following facts contrary to, or in addition to, those found by the district court:
Plaintiff contends that the policy in the faculty handbook is one of “not encouraging” outside employment, but that this policy was not followed. She alleges that the following male teachers were not held to this policy: Taylor, her predecessor, taught full time at defendant college and had full-time outside employment. Mosteller, Gilliam, and Evans had full-time outside employment while maintaining courseloads of nine to twelve hours. In addition, Rigdon, plaintiffs replacement, taught nine hours at defendant college while maintaining full-time outside employment. Although Mos-teller, Gilliam, Evans, and Rigdon were classified as part-time employees of defendant college, plaintiffs request to teach either nine or twelve hours on a part-time basis was denied. Rather, plaintiff alleges that defendant would only allow her to teach six hours on a part-time basis if she chose to keep her full-time outside job. Plaintiff further contends that defendant’s alleged rationale for allowing the part-time male teachers to teach nine to twelve hours, the need for PhDs in the business department, is pretextual as shown by (1) the fact that Evans is not a PhD and that Rigdon taught in the mathematics department, and (2) the testimony of the chairperson of the mathematics department that teachers were sorely needed in that department.
Plaintiff alleges that two statements were made which constitute direct evidence of discriminatory intent. Dr. Threatt, President of defendant college, allegedly said that he saw no reason for a woman to have a second job. Dr. Payne, Vice President of Academic Affairs of defendant college, stated that the reason that plaintiff could not have four classes in the afternoon like the men was because those males had families and needs that the plaintiff did not have. These two statements were introduced through plaintiff’s testimony, and were not rebutted through cross-examination or subsequent testimony.
Regarding her charge of retaliation, plaintiff states that soon after her original contact with the EEOC, Payne called plaintiff’s department chairperson and instructed her to change plaintiff’s spring schedule so that she would have morning classes. Payne was aware that morning classes would conflict with plaintiff’s high school teaching. In January, 1980, plaintiff filed a formal EEOC charge. Plaintiff contends that defendant subsequently harassed her through actions such as dismissing her class one day- during the first or second week of February, withholding her paycheck on February 29 and April 1, and ultimately firing her on April 15, 1980. Plaintiff further alleges that she was entitled to certain procedures prior to discharge that she did not receive.
II. SEX DISCRIMINATION
This is a disparate treatment case. Plaintiff claims that she was discriminated against because of her sex in that she was not permitted to work both full time at defendant college and full time outside as had her predecessor, nor was she allowed to work full time outside of defendant college while maintaining part-time employment of nine or twelve hours at defendant college as did Mosteller, Gilliam, Evans, and Rigdon. Because she refused to choose between full-time employment at defendant college and full-time employment at Douglass High School, she was discharged while male teachers who had large part-time courseloads at Morris Brown and full-time outside work were allowed to continue such work.
The court below evaluated plaintiffs claim of sex discrimination in accordance with the legal standards set out in McDonnell-Douglas v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Under McDonnell-Douglas, as explained by the Supreme Court in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), and as applied to the situation at bar, the plaintiff must make out a prima facie case by proving by a preponderance of the evidence that she is a member of a protected class, was qualified for the position held, and was discharged and replaced by a person outside of the protected class or was discharged while a person outside of the protected class with equal or lesser qualifications was retained. See, e.g., Lee v. Russell County Board of Education, 684 F.2d 769, 773 (11th Cir.1982). Plaintiffs prima facie ease creates a rebuttable presumption of discrimination which, if not rebutted, requires a verdict for plaintiff. Burdine, 450 U.S. at 254 & n. 7, 101 S.Ct. at 1094 & n. 7; Lee, 684 F.2d at 773. The defendant’s burden, however, is merely one of production, not of persuasion. The defendant need only articulate a legitimate, nondiscriminatory reason for its action. Burdine, 450 U.S. at 257-58, 101 S.Ct. at 1095-96; Lee, 684 F.2d at 773. Once this burden is met, plaintiff must demonstrate by a preponderance of the evidence that defendant’s reason “is pretextual or more directly that a discriminatory reason motivated the discharge.” Lee, 684 F.2d at 773, citing Burdine, 450 U.S. at 255-56, 101 S.Ct. at 1094-95.
In the present case, the court below determined that plaintiff had established a prima facie case. The court then found that:
While the part time males named by plaintiff were assigned larger course loads than that offered to plaintiff, defendant’s explanation of the reason for this disparity reveals a legitimate business reason for the difference and is not deemed by the court to be pretextual.
Thompkins v. Morris Brown College, C811059A, slip op. at 10 (N.D.Ga. Oct. 31, 1983).
The McDonnell-Douglas test, however, is not the exclusive means of proving a case of disparate treatment in employment. See, e.g., Bell v. Birmingham Linen Service, 715 F.2d 1552, 1556 (11th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 2385, 81 L.Ed.2d 344 (1984); Lee, 684 F.2d at 773-774. Rather, this court has determined that “where a case of discrimination is proved by direct evidence, it is incorrect to rely on a McDonnell-Douglas rebuttal.” Bell, 715 F.2d at 1557; citing Lee, 684 F.2d at 774. This is so because circumstantial evidence is used to create an inference of discrimination under McDonnell-Douglas, while no such inference is required in the case of direct evidence. Bell, 715 F.2d at 1556-57; Lee, 684 F.2d at 774. Thus, when there is direct evidence “that the defendant acted with a discriminatory motive, and the trier of fact accepts this testimony, the ultimate issue of discrimination is proved.” Bell, 715 F.2d at 1557. In such cases, the defendant’s burden is not merely one of production, but rather,
[o]nee an unconstitutional motive is proved to have been a significant or substantial factor in an employment decision, defendant can rebut only by proving by a preponderance of the evidence that the same decision would have been reached even absent the presence of that factor. Mt. Healthy City School District v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). See, e.g., Avery v. Homewood City Board of Education, 674 F.2d 337 (5th Cir.1982, Unit B) [, cert. denied, 461 U.S. 943, 103 S.Ct. 2119, 77 L.Ed.2d 1300 (1983)[],
Lee, 684 F.2d at 774 (footnote omitted); see also Bell, 715 F.2d at 1557.
We agree with plaintiff that the alleged statements of Payne and Threatt constitute direct evidence of discrimination. The lower court, however, applied the McDonnell-Douglas test without reference to this proffered direct evidence. We hold that this was error. When direct evidence of discrimination has been introduced, the lower court must, as an initial matter, specifically state whether or not it believes plaintiffs proffered direct evidence of discrimination. See Lee, 684 F.2d at 772, 774. Absent any reference to the direct evidence, it is unclear what the court below found.
The court might have disbelieved plaintiffs proffered evidence. If so, the court should have stated “why this apparently highly probative evidence was discredited ... [since] [i]n these circumstances some indication of the court’s reasons for rejecting this evidence must be given in order for us to exercise properly our function of appellate review.” Lee, 684 F.2d at 775. Cf. Golf City, Inc. v. Wilson’s Sporting Goods Co., 555 F.2d 426, 433-36 (5th Cir.1977).
Alternatively, the court might have found plaintiffs testimony about Threatt and Payne’s statements credible. If so, the court’s ultimate finding in favor of defendant was clearly erroneous. Defendant did not attempt to rebut or impeach plaintiffs testimony or to otherwise explain how Payne and Threatt put aside their bias in their treatment of plaintiff. See Bell, 715 F.2d at 1557. Defendant’s ability to show that it would have made the same employment decisions even if Thompkins were male was further weakened by plaintiff’s showing that her male predecessor, her male replacement, and several other males were granted an employment condition that defendant was denied. See n. 16, infra. In fact, the alleged statements were made in response to plaintiff’s request for similar treatment.
Thus, this case must be remanded to the district court for a determination of whether Threatt and Payne made the discriminatory statements. If the district court finds that the statements were made, it must enter judgment for plaintiff. See Lewis v. Smith, 731 F.2d 1535 (11th Cir.1984). If the court finds that the statements were not made, it must clearly articulate this finding.
III. RETALIATION
Plaintiff also appeals the lower court’s finding for defendant on her claim of retaliation pursuant to 42 U.S.C. § 2000e-3(a). Plaintiff agrees with the district court that the McDonnell-Douglas test is applicable here, but alleges that (1) the district court made contradictory findings about the existence of retaliation, (2) the defendant failed to articulate a legitimate nondiscriminatory reason for its actions, and (3) the court failed to apply the third step of the McDonnell-Douglas test. For the reasons set out below, we reverse and remand the lower court’s opinion for further and more explicit findings.
The lower court held that in order to establish a prima facie case of retaliation, plaintiff must show:
(1) that she was engaged in protected activity, i.e., that she participated in Title VII proceedings; (2) that her employer was aware of the protected activity; (3) that she was subsequently terminated; and (4) evidence tending to establish a retaliatory motive on the part of the employer in its adverse treatment of her.
Thompkins v. Morris Brown College, C811059A, slip op. at 8 (N.D.Ga. Oct. 31, 1983) (emphasis added). The court then found “[t]hat plaintiff has made out a prima facie case,” id. without elaborating on how plaintiff had made this showing. The court later concluded that “[t]he record contains no evidence of the requisite retaliatory intent ____” Id. at 9 (emphasis added). These findings are inconsistent and, without further elaboration, do not allow this court to conduct an adequate review. Cf. Lee County Branch of NAACP v. City of Opelika, 748 F.2d 1473, 1480 (11th Cir. 1984); Complaint of Ithaca, 582 F.2d 3, 4 (5th Cir.1978). Thus, we remand plaintiff’s retaliation claim to the district court for a fuller explanation of its findings.
The lower court also found “that defendant has met its burden of articulating legitimate, nondiscriminatory reasons for plaintiff’s termination.” Thompkins v. Morris Brown College, C81-1059A, slip op. at 8 (N.D.Ga. Oct. 31, 1983). The legitimate reason that the court found was plaintiff’s refusal to decide which full-time job she wished to keep. Plaintiff alleges that she was faced with this decision only because of defendant’s sexism; that is, that she would not have been put to this choice if she were a male. This court is cognizant that defendant need only articulate a legitimate reason in order to fulfill its burden of production under McDonnell-Douglas. We cannot, however, ignore the fact that the veracity of this rationale has been put into question by the direct evidence introduced by plaintiff, as discussed supra. Thus, we remand this issue to the district court to determine whether, in light of its reexamination of plaintiff’s claim of sex' discrimination, it still accepts defendant’s proffered response to plaintiff’s claim of retaliation.
Finally, plaintiff claims that the court failed to consider her claim that defendant’s rationale was pretextual, thus failing to apply the third prong of the McDonnell-Douglas test. The court, however, did rule on this prong, stating that “plaintiff has failed in her burden to show that the reasons given by defendant for her dismissal are pretextual.” C81-1059A, slip op. at 9 (N.D.Ga. Oct. 31, 1983). The court also explicitly found that Payne did not receive the alleged phone call from the EEOC at the time of plaintiff’s initial visit. In addition, the court’s oral findings discussed some of the actions that plaintiff claimed constituted harassment and found that these actions were not taken in retaliation to the EEOC charge. Thus, while the court’s opinion could have been more detailed, we find that the court did at least reach the issue of pretext. However, in light of the court’s confusing and inadequate application of the first two prongs of the McDonnell-Douglas test, the last prong must necessarily be reconsidered by the court upon remand.
For the foregoing reasons, the opinion of the district court is REVERSED and REMANDED for proceedings not inconsistent with this opinion.
. The lower court found that Evans had a twelve-hour courseload at Morris Brown College, but did not comment upon the number of hours Mosteller and Gilliam taught. The record reflects that, at least during some of the time that they taught part time at defendant college, Mosteller taught twelve hours at defendant college and Gilliam taught nine hours at defendant college. One class is equivalent to three hours.
. There is no contention that these women had employment outside of defendant college.
. The 1979 Morris Brown College Faculty Handbook states:
The College does not encourage outside employment by full-time faculty or an intensive involvement which may interfere with his/her duties at the College. Any outside employment or involvement by a full-time faculty member must be approved in advance by the Vice President for Academic Affairs and the President.
. Plaintiff claims that Payne ordered her to choose between her two jobs pursuant to the direction of Dr. Threatt, the President of defendant college. She further claims that Dr. Threatt was aware of Taylor’s outside employment and told him that he did not like it, but took no action against Taylor. In its oral findings, the district court referred to Taylor’s testimony that Threatt knew of Taylor’s outside employment. The court did not state explicitly whether or not it believed Taylor.
. In September of 1980, defendant offered plaintiff part-time employment of nine hours. Plaintiff was told she could choose the three courses (or nine hours) out of four courses offered to her. Plaintiff contends, however, that this offer was not made in good faith because only one of the four classes would not conflict with her job at the high school.
. These claims are cognizable under 42 U.S.C. § 2000e-2 which states:
(a) It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
. Plaintiff's claim is both for discriminatory discharge and for discriminatory treatment in the hours of employment. Adapted to a charge of disparate treatment with respect to hours of employment, plaintiff's prima facie case consists of showing that: (1) she is a member of a protected class, (2) was similarly situated with a person outside of the protected class, but (3) was denied a condition of employment afforded that person. See McDonnell-Douglas, 411 U.S. at 802-3, n. 13, 93 S.Ct. at 1824-25, n. 13. In this context, similarly situated does not refer to whether an employee is classified as "full-time" or “part-time." An employer cannot avoid its responsibility for nondiscriminatory treatment by the use of labels. Rather, it is the defendant's refusal to allow plaintiff to work part time that is in issue. Thus, in order to fulfill her prima facie case, plaintiff need only show that the males who worked full time outside of defendant college were granted a term of employment (in this case part-time employment of nine to twelve hours) that was denied plaintiff. The burden then shifts to defendant, as discussed, infra. Under either articulation of plaintiff's prima facie case, however, plaintiff met her burden. See n. 8 infra and accompanying text.
. The lower court made contradictory rulings on this point. The court first stated:
[P]laintiff made a prima facie showing, in accordance with McDonnell-Douglas v. Green, supra, that she was female, qualified, employed by defendant, has been terminated, and was replaced by a male. Plaintiff also showed that Dr. Mosteller, Dr. Gilliam and Mr. Evans were allowed to teach nine to twelve course hours during certain semesters while she was employed by defendant.
Thompkins v. Morris Brown College, C81-1059A, slip op. at 10 (N.D.Ga. Oct. 31, 1983). In the next paragraph, however, the court found:
In order to make out a prima facie case and thus cast the burden upon defendant to rebut her allegations of discrimination, plaintiff must make a showing of purposeful or intentional discrimination. International Brotherhood of Teamsters v. United States, 431 U.S. 324 [97 S.Ct. 1843, 52 L.Ed.2d 396] (1977); Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 [97 S.Ct. 555, 50 L.Ed.2d 450] (1976). Plaintiff has failed to meet this standard.
Id. This second description of the requirements of a prima facie case is incorrect. See, e.g., Lee, 684 F.2d at 773.
. Presumably, the court is referring to defendant's allegation that special needs in the Business Department, including the need for PhDs in that department and the large number of students majoring in business, created the necessity for the larger caseloads of these part-time teachers.
. The Eleventh Circuit, in Stein v. Reynolds Securities, Inc., 667 F.2d 33 (11th Cir. 1982), adopted as precedent decisions of the former Fifth Circuit, Unit B, rendered after September 30, 1981.
. The statements by Payne and Threatt are similar to the direct evidence proffered in Bell and Lee. In Bell, plaintiff wanted the position of “extra washman.” Although she was the senior person to bid for the job, she initially was denied the job by the production manager. Following a meeting between the union representative and the employer she was given the position. When she reported for work as a wash-man, however, the production manager told her that he had added new jobs to the position. As direct evidence of discrimination, plaintiff and the union representative testified that the production manager had said that he would not put plaintiff in the washroom because if he did "every woman in the plant would want to go into the washroom.’’ 715 F.2d at 1553. In Lee, several teachers claimed that the decision not to reemploy them was based on racial discrimination and a principal claimed that he was not reemployed because of his support for those teachers. The principal and the superintendent of education testified that the discharges were racially motivated. In addition, there was evidence that school board members and a past principal sought to maintain a "white presence” and stop white flight and had urged the principal who was fired to "build cases” against black teachers. 684 F.2d at 774-75.
. The district court did state that “[i]t is also the finding of the court that the record contains no evidence to indicate that plaintiffs termination was motivated by any intent on the part of defendant to discriminate against plaintiff on account of her sex.” C81-1059A, slip op. at 10 (N.D.Ga. Oct. 31, 1983). This statement, however, is insufficient as it does not directly address the alleged discriminatory remarks of Payne and Threatt. The statement also is inconsistent with the court’s earlier finding that plaintiff made out her prima facie case.
. The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.
. "[T]he ultimate question in this case, the existence of discrimination vel non is a factual matter.” Bell, 715 F.2d at 1557, citing Pullman-Standard v. Swint, 456 U.S. 273, 289-90, 102 S.Ct. 1781, 1790-91, 72 L.Ed.2d 66 (1982). Thus, pursuant to Fed.R.Civ.P. 52(a), this court can reverse the trial court’s determination only if it is clearly erroneous, that is, if based on the entire evidence we would be left with a definite and firm conviction that a mistake had been made. See, e.g., United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948).
. Belatedly on appeal, defendant attempted to claim that Payne’s statement, if made, was anti-single people, rather than anti-female. However, even if this explanation was plausible, it was not presented to the trial court and cannot be considered on appeal.
. The court must then evaluate defendant’s proffered nondiscriminatory reason, and plaintiffs claim that this reason is pretextual.' In doing so, the- court should bear in mind that “[o]bviously, the more subjective the qualification sought and the more subjective the manner in which it is measured, the more difficult will be defendant’s task in meeting the burden imposed by Burdine." Fowler v. Blue Bell, Inc., 737 F.2d 1007, 1011 (11th Cir.1984). See also Bell, 715 F.2d at 1559; Watson v. National Linen Service, 686 F.2d 877, 881 (11th Cir.1982); Lee, 684 F.2d at 775-76. In the present case, although the rule against outside employment is objective on its face, plaintiff introduced evidence of its subjective enforcement. See, e.g., Williams v. City of Montgomery, 742 F.2d 586, 588 (11th Cir.1984) (justification for firing black employee but retaining white employees — all of whom violated work rule — is insufficient to establish a legitimate, nondiscriminatory reason where objective rule applied subjectively); Sims v. Montgomery County Commission, 544 F.Supp. 420, 427 (M.D.Ala.1982) ("uneven application of criteria is strong evidence that the criteria were never in fact employed in the selection process and were used by the employer as merely a pretext for discrimination”). First, plaintiffs predecessor was not fired for similar outside employment. As discussed in note 4, supra, the court did not rule on whether Threatt was aware of Taylor’s dual employment. Second, several males who were classified as part time were allowed to maintain large courseloads inside of defendant college as well as maintain outside employment. As discussed in note 7, supra, defendant cannot escape its obligation under Title VII merely by classifying male and female employees differently without a legitimate nondiscriminatory reason for such action. In addition, the court did not explain why Rig-don, a math teacher, and Evans, a business teacher without a PhD, were permitted to benefit from defendant’s alleged business necessity, a need for PhDs in the business department. Thus, the present case is similar to Williams v. City of Montgomery, 550 F.Supp. 662 (M.D.Ala.1982) where the court found that the criteria, while perhaps descriptive of differences between employees, was not actually determinative of how they were treated. Id. at 667.
. 42 U.S.C. § 2000e-3(a) states:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this sub-chapter.
. A clearer articulation of the plaintiff's prima facie case in a retaliation claim is that plaintiff must establish (1) actions protected by the statute, (2) an adverse employment decision, and (3) a causal link between the protected actions and the adverse employment decision. See, e.g., Hamm v. Members of Board of Regents, 708 F.2d 647, 654 (11th Cir.1983); Whatley v. Metropolitan Atlanta Rapid Transit, 632 F.2d 1325, 1329 (5th Cir. Unit B, 1980).
. On remand, the court should evaluate plaintiff’s prima facie case in terms of the test set out in note 18, supra. We also reiterate that plaintiff’s prima facie case under McDonnell-Douglas need only give rise to an inference of discrimination, as discussed in section II, supra.
. Logically, even a sexist reason is legitimate in response to a prima facie showing of retaliation. Thus, discharging a woman because she is a woman is cause for a claim under 42 U.S.C. § 2000e-2, discrimination in terms and conditions of employment, but not under 42 U.S.C. § 2000e-3, retaliation in response to protected activity. Precedent, however, clearly states a legitimate nondiscriminatory reason is required. See e.g., Hamm, 708 F.2d at 654; Whatley, 632 F. 2d at 1328.
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_realresp
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether or not the formally listed respondents in the case are the "real parties." That is, are they the parties whose real interests are most directly at stake? (e.g., in some appeals of adverse habeas corpus petition decisions, the respondent is listed as the judge who denied the petition, but the real parties are the prisoner and the warden of the prison) (another example would be "Jones v A 1990 Rolls Royce" where Jones is a drug agent trying to seize a car which was transporting drugs - the real party would be the owner of the car). For cases in which an independent regulatory agency is the listed respondent, the following rule was adopted: If the agency initiated the action to enforce a federal rule or the agency was sued by a litigant contesting an agency action, then the agency was coded as a real party. However, if the agency initially only acted as a forum to settle a dispute between two other litigants, and the agency is only listed as a party because its ruling in that dispute is at issue, then the agency is considered not to be a real party. For example, if a union files an unfair labor practices charge against a corporation, the NLRB hears the dispute and rules for the union, and then the NLRB petitions the court of appeals for enforcement of its ruling in an appeal entitled "NLRB v Widget Manufacturing, INC." the NLRB would be coded as not a real party. Note that under these definitions, trustees are usually "real parties" and parents suing on behalf of their children and a spouse suing on behalf of their injured or dead spouse are also "real parties."
KIRBY et al. v. PENNSYLVANIA R. CO.
No. 10290.
United States Court of Appeals Third Circuit
Argued Dee. 7, 1950.
Filed April 23, 1951.
Harvey N. Schmidt, Philadelphia, Pa. (Rufus Scoville Watson, James K. Baker, Philadelphia, Pa., on the brief), for appellant.
Owen B. Rhoads, Philadelphia, Pa. (John Dickinson, Guy W. Knight, and Harold P. Dicke, all of Philadelphia, Pa., Barnes, Dechert, Price, Myers & Clark, Philadelphia, Pa., on the brief), for appellee.
Before BIGGS, Chief Judge and GOODRICH and KALODNER, Circuit Judges.
GOODRICH, Circuit Judge.
This case involves the validity of an award and order of the Third Division of the National Railroad Adjustment Board. It comes to us on appeal from an order of the court below dismissing the plaintiff’s complaint, which sought enforcement of an order of that Board, because it failed to state a claim upon which relief could be granted under the provisions of the Railway Labor Act, 45 U.S.C.A. § 151 et seq.
The plaintiff’s complaint, the allegations of which must ibe taken as true for purposes of this appeal, tells the following story:
Plaintiffs, 39 women residents of Pennsylvania, were employed by defendant, an interstate carrier, as truckers at its Philadelphia freight transfers. On or about March 15, 1945, and continuing to October 23, 1946, plaintiffs’ positions were abolished by defendant in violation of a contract between defendant and the Brotherhood of Railway Clerks. As a result of defendant’s action the Brotherhood submitted a claim to the Railroad Adjustment Board for reinstatement and back pay for four named employees (not the present plaintiffs) and others adversely affected by the carrier’s actions. A hearing was had as a result of which the Board issued an award sustaining the claim and an order requiring defendant to comply with the award on or before April 1, 1949. The defendant has refused to comply with the order and plaintiffs seek court enforcement. Plaintiffs were not parties before the Board but seek relief as “others adversely affected.”
There are three main divisions to what must be considered on the appeal. The first has to do with the sufficiency of the findings and award of the Board. The second concerns the right of plaintiffs to be in court. The third involves the requirements of notice.
A. The Form of The Award.
The appellee enthusiastically concurs with the District Court’s conclusion that the form of the award by which the Railroad Adjustment Board disposed of the claim is not sufficient to make it the basis of a court action. We disagree, although admittedly the point is not one free from difficulty.
Let.us show first the material with which we have to work. The order of the Third Division of the Railroad Adjustment Board which plaintiffs seek to have enforced calls upon defendant “to make effective Award No. 4291” on or before April 1, 1949. A copy of the award accompanies the order and is made a part thereof. The “Award” consists of the following: Statement of Claim, Employes’ Statement ®f Facts, Position of Employes, Carrier’s Statement of Facts, Position of Carrier, Opinion of Board, Findings, and Award.
The Statement of Claim reads as follows:
“(a) Rule 3-C-2 was violated by the Carrier when positions of Truckers, Philadelphia Transfer, held by Pattie S. Hayes, Mary Gambrell, Eula O. Smith, Ora Dorsey and others, were abolished effective May 13, 1946 and the work assigned to Contract Employes not covered by the Rules Agreement.
“(b) These positions be re-established and the incumbents, as well as any others adversely affected, be compensated for any monetary losses sustained. (E-355, E-357 & E-358).”
Under the heading of “Award” appears the following:
“Claim (a) sustained.
“Claim (b) sustained on the reestablishment of the positions for those listed and others adversely affected; that monetary losses sustained be confined to proof of the same, with deductions allowed from earnings from other sources during the period under consideration.”
The “Findings” consist of statements that notice and a hearing were given to the parties, the division has jurisdiction, and that the claim is sustained. The opinion summarizes the parties’ positions, cites several awards and concludes that defendant violated the rules agreement. It does not summarize the facts. The remainder of what is called Award No. 4291 is simply a reprint of the submissions of the parties.
All this comes a long way from being the neat, definite and precise findings of fact and conclusions of law from the pen of an experienced and conscientious trial judge made pursuant to the requirements of Rule 52 of the Federal Rules of Civil Procedure, 28 U.S.C.A.
Does it follow that a complaint based on such an award is too vague to be made the basis of an enforcement decree by a court? It is to be borne in mind that this Railroad Adjustment Board is not a lawyers’ tribunal. It is a bipartisan board composed of railroad men selected, paid and serving at the will of their respective principals, management and railroad unions. Referees are called in only when the Board is deadlocked. The referees are, we understand, usually lawyers, but they are not permanent employees of the Board. The handling of claims by various divisions of the Railroad Adjustment Board is seldom if ever a matter of taking testimony on controversial facts. The proceedings are carried from one step to another by persons familiar with both background and immediate controversy. When a referee is brought in, he is usually advised of the facts through the respective representatives of each side of the controversy. Everyone concerned knows what the dispute is, though disagreeing upon its settlement.
This description of the operation of the Board is not in the record in this case, but it is outlined at length in an admirable paper by Lloyd K. Garrison and it also appears in the Attorney General’s administrative procedure report. The latter, of course, is a public document. We take it also that the operation of the Board is a performance by a public body of which we may take judicial notice.
While it may be granted that the performance by the Adjustment Board in this informal fashion fulfills with fair satisfaction the purpose for which it was created, it does not fully meet the question of the place of a ¡product of such Board’s actions in a court of law. Why should the award of such an informally conducted body have any more standing in a court of law than the minutes of a literary society? The reason is, of course, that Congress has said so. The pertinent provision is found in 45 U.S.C.A. § 153, First (p). It provides as follows: “(p) If a carrier does not comply with an order of a division of the Adjustment Board within the time limit in such order, the petitioner, or any person for whose benefit such order was made, may file in the District Court * * * a petition setting forth briefly the causes for which he claims relief, and the order of the division of the Adjustment Board in the premises. Such suit in the District Court * * * shall proceed in all respects as other civil suits, except that on the trial of such suit the findings and order of the division of the Adjustment Board shall be prima facie evidence of the facts therein stated * * *. The district courts are empowered, under the rules of the court governing actions at law, to make such order and enter such judgment, by writ of mandamus or otherwise, as may be appropriate to enforce or set aside the order of the * * * Board.”
So we 'have this situation. The Congress has provided for the submission of certain railway labor disputes to a body which over the years has established its own method of operation in a way which gives each side a chance to have its problems heard and decided by persons who are thoroughly familiar with the industry and the kind of questions presented. The law-making body has thought well enough of the type of operation to provide for the enforcement of its results where necessary. But it has protected the party who lost before the Board from having unfair advantage taken of him by making the findings of the Board prima facie only. The loser must go forward with attacking proof; but the facts are not conclusively established by the findings. We think under these circumstances to insist upon the kind of definite requirement of findings of fact to which we are accustomed in the ordinary non-jury case would be doctrinaire and unrealistic. We think courts should take the findings of these divisions of the Railroad Adjustment Board as they come and do what they can with them.
Conceivably there could be an award so vague as to be incapable of enforcement. But we do not think the one in this case is and we think that a careful reading of the material in the record before us is sufficient to show both the controversy and how it was decided and who the beneficiaries were. This is enough to permit a trial to enforce the award to proceed. Of course the plaintiffs must show that they are within the scope of persons covered in the award since they were not the complainants in the first instance.
B. May These Plaintiffs Sue?
The statute provides for enforcement of a Board order not only at the suit of petitioner before the Board, but by “any person for whose benefit such order was made.” We conclude that plaintiffs’ complaint is sufficient to show that they are persons for whose benefit Award No. 4291 was made, and that they have standing to seek enforcement of it.
The claim before the Board sought reinstatement and back pay to four named persons and others whose positions as “truckers, Philadelphia Transfer * * * were abolished effective May 13, 1946.” The award and order directed reinstatement of “those listed and others adversely affected,” and confined payment of money losses to those proved. It seems plain that “others adversely affected” refers to those other than the four named claimants whose positions as “truckers, Philadelphia Transfer * * * Were abolished effective May 13, 1946” in violation of the rules. The order was made for the benefit of that group as well as the four named claimants. If it subsequently appears that any of plaintiffs were not in the class covered by the award, as above described, the action may be dismissed as to them.
Defendant contends that plaintiffs’ complaint is inadequate to give them standing to seek enforcement of the Board’s order for another reason. It asserts that under the holding of the Supreme Court in Elgin, Joliet & Eastern R. Co. v. Burley, 1945, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886, adhered to on rehearing 1946, 327 U.S. 661, 66 S.Ct. 721, 90 L.Ed. 928, plaintiffs must allege and prove that they authorized the union to represent them before the Board. We disagree. The Elgin case held only that a Board order was not a bar to later suit by individual employees not represented or notified in some way of the proceedings culminating in the order. The question in the case at bar is quite different: Are plaintiffs entitled to bring action, to enforce a Railroad Adjustment Board order under a statutory provision giving this right to “any person for whose benefit such order was made”? We conclude that the answer to that question does not depend on whether an adverse order would have bound plaintiffs. A plaintiff who shows that an order was made for his benefit has made out his right to be in court.
The result may be that an employee may have rights under an order which would not have bound him had it been in the carrier’s favor. This result does not ignore the rule that the estoppel of a judgment must be mutual, nor does it do injustice to the carrier. The principle of mutuality of estoppel is that a judgment which is not conclusive as to facts and law as against a party to a lawsuit shall not be so considered as to his adversary. That principle has no application here simply because >no such effect is being accorded the Railroad Adjustment Board order against defendant. This is not an action on a judgment which is binding on the law and facts but merely an action to enforce an administrative order which is only prima facie evidence of any findings of fact.
C. Notice.
As an additional basis for granting the motion to dismiss, the district judge stated that there was nothing in the award to indicate that notice of the hearing before the Board was given to the employees “now performing the work which the plaintiffs seek,” [92 F.Supp. 423.] and who, under the Act, are entitled to notice.
The question of who is entitled to notice and an opportunity to be heard in Board hearings has been the subject of considerable debate and litigation ever since the creation of the Board. The statute provides that “the * * * Board shall give due notice of all hearings to the employee or employees and the carrier or carriers involved in any disputes submitted to them.” 45 U.S.C.A. § 153, First (j). The problem has come before the courts in several ways. It has arisen principally in suits 'by individual employees who, threatened with loss of their jobs or their place on the seniority list, seek to enjoin the carrier from complying with a Board order entered without notice to them. In each of these cases the court has enjoined the carrier from complying with the order. The notice problem has arisen before the Supreme Court as part of the question of whether an award of the Board in favor of the carrier was a bar to court action regarding the same dispute by an individual employee. The Court held that it was no bar unless notice and opportunity to be heard before the Board had been accorded the employee, or unless he had authorized the union to represent him. Elgin, Joliet & Eastern R. Co. v. Burley, supra. In only one case has it arisen in the manner in which it arises here — as a defense offered by the carrier in an enforcement action. In that case the court said that the order could not be enforced unless notice had been given individual employees involved, but it also said that the order was not invalid in that instance because it appeared that the employee had actual knowledge and opportunity to participate. Estes v. Union Terminal Co., 5 Cir., 1937, 89 F.2d 768.
These cases establish that in certain instances individual employees who may be adversely affected by an award are entitled to notice and an opportunity to be heard before the Adjustment Board. But this still leaves open two questions: (1) Can the carrier raise lack of notice to someone else as a defense to it? (2) Are there employees entitled to notice in the case before us who did not receive it?
It has never been squarely decided whether lack of notice to individual employees involved in the dispute renders the order wholly unenforceable, or merely subjects it to attack at the suit of such employees. If the carrier is not permitted to raise the question of notice to employees, it is in a dilemma in-deciding whether to comply with a Board order. If it complies, it may be exposed to suit by the ousted employees for back pay and reinstatement. If it refuses to comply it may increase the amount of back pay owed the claimants. Either way it runs the risk of paying two groups of employees for the same work.
In addition to these considerations based on fairness, there is another reason which, though technical, loses nothing in force thereby. The Board’s authority to act is based upon the statute. Until the statutory requirements are met, it has no more standing to produce legally effective orders than any voluntary group of citizens. Anyone to be affected by the purported order can raise the point that it has no legal foundation. We conclude that defendant carrier may raise the point that employees involved in the dispute had no notice or knowledge of the hearing, and no opportunity to be heard before the Adjustment Board. A party is entitled to an award that will protect it in the event that it complies.
However, we do not agree with the court below that the defense was properly made out in this case. In the first place the Supreme Court has said that the awards of the Board are clothed with a presumption of validity, and that the burden is on the one who would upset the award to show that it is invalid. Elgin, Joliet & Eastern R. Co. v. Burley, supra, 327 U.S. at page 664, 66 S.Ct. at page 722. We think, therefore, that it is not necessary to the validity of the award that it appear on its face that formal notice of the hearing was given to all employees involved. Whether or not such notice was in fact necessary or given is something that the carrier must raise affirmatively.
Defendant has raised the question of lack of notice of the proceedings before the Board in this case by its motion to dismiss. If it appears from the complaint that there were “employees involved” who received no notice of the proceedings this is a proper method of raising the defense, for the plaintiffs will have supplied defendant with the facts necessary for attacking the order. The award upon which the complaint is based may be considered a part of the record for this purpose. The Board’s findings state merely that “the parties to this dispute [received] due notice of hearing thereon,” and another portion of the award describes the parties as the union and the carrier. We may assume, arguendo, that formal notice was given only to these two organizations, and to no individuals. We may even assume, also arguendo, that no individual employees had knowledge which is the equivalent of notice. The question remains whether the complaint or award shows that there were any persons entitled to notice under the statutory language “employees involved.”
Carrier’s contention, accepted by the court below, is that the persons who would lose their jobs by compliance with the Board order are “employees involved” and entitled to notice. The Board did not find who such persons were. The claim before the Board alleged that carrier had hired “contract employees” to do the work previously done by claimants. Carrier did not deny this. The complaint in this enforcement suit makes the same allegation. The inference from this is that these are the persons who would lose their jobs by reinstatement of the plaintiffs and other claimants. It is impossible to know for certain whether these persons ever became employees of the Pennsylvania Railroad or not. The inference is that they did not, but that the railroad got them from a neighborhood contractor as and when needed. If this is so, we think it clear that failure to give them notice does not deprive the award of effectiveness. Such persons would have no interest which entitled them to a hearing before the Board nor even to consideration by it, and certainly they would not be entitled to notice of the proceedings as “employees involved.”
We do not predicate our decision on the inference just made, however. We think the result may be the same even if the persons hired by the carrier to do the work of the plaintiffs and others similarly situated, did become employees of the Pennsylvania Railroad. Who are “employees involved” under the statutory language? The exact meaning has never been settled; perhaps it never can be.
The cases which have passed upon it have all involved factual situations quite different from ours. They involved disputes between two or three employees over seniority ratings or between two groups of workmen both long-time employees of the carrier, over which group was entitled to do a particular type of work. The interest of such employees, the extent to which the Board should be required to consider such interests, and the type of dispute involved were not even similar to our problem here.
We do not know on what basis, if at all, the workers who replaced plaintiffs were employed by the defendant and whether out of such employment, they acquired a status which gave them such rights in their jobs as entitled them to notice and opportunity to be heard before the Board. Anyone employed 'by another, even purely at will, has some “interest” in his job. But the mere fact of that employment, without more, is not enough to make him a necessary party in an Adjustment Board hearing. Here we do not know whether the replacement workers became employees, nor upon what terms if they did. We have no knowledge of facts upon which we can say notice to them was required. •
So far as this litigation is concerned a,t this stage, the order stands on the presumption of validity attributed to it by the Supreme Court in the Elgin case. On remand the trial court may hear evidence on the question of what employees, if any, would have been replaced by defendant’s compliance with the Board’s order, and whether they received notice or had knowledge of the proceedings. Then the court can determine whether these employees had such an interest as entitled them to notice of the Board hearing, and whether they received it or the equivalent. In the event that the defendant fails to meet the burden of upsetting the Board’s award on this basis, the case then may proceed to a trial on the merits.
The judgment will be reversed and the case remanded for further proceedings not inconsistent with this opinion.
. Shorthand for “The Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employees.”
. Kirby v. Pennsylvania R. Co., D.C.E.D.Pa.1950, 92 F.Supp. 417. The court stated thaF the award was not “sufficiently clear and definite to be capable of enforcement.”
. A copy of the order was attached to plaintiffs’ complaint. The award was made part of the record by stipulation on motion to dismiss.
. A prerequisite to Board jurisdiction is attempted settlement by negotiation at regular established levels. See 45 U.S.C.A. § 153, First (i). As a result factual questions are in most cases ironed out before the case ever reaches the Board. See Garrison, note 5 infra at 579; Jones, note 6 infra at 168.
. Garrison, The National Railroad Adjustment Board, A Unique Administrative Agency, 46 Yale L.J. 567 (1937). See also Spencer, The National Railroad Adjustment Board, 8 University of Chicago Studies in Business Administration, No. 3 (1938), reprinted in Jones, note 6 infra; Note, Railroad Labor Disputes and the National Railroad Adjustment Board, 18 U. of Chi.L.Rev. 303 (1951).
. Rep. Atty. Gen. Comm. Ad. Proc. 185-188, 441, Sen. Doc. No. 8, 77th Cong., 1st Sess. (1941). -See also the Committee’s staff report, Sen. Doc. No. 10, 77th Cong., 1st Sess., Part 4 (1941). For a collection of all material considered by the Committee relevant to the Railroad Adjustment Board and the transcript of the hearings see Jones, Harry E., Inquiry of the Atty. Gen. Comm. Ad. Proc. Relating to the National Railroad Adjustment Board (1940).
. The existing procedure, established by the Railway Labor Act of 1934, 48 Stat. 1189, 45 U.S.C.A. § 153, is patterned after that of earlier bi-partisan system and regional boards with important changes to provide for the settlement of deadlocks and to make the decisions binding and enforceable, See generally, Garrison and Sen. Doc. No. 10, supra.
. See Dahlberg v. Pittsburgh & Lake Erie R. Co., 3 Cir., 1943, 138 F.2d 121; Washington Terminal Co. v. Boswell, 1941, 75 U.S.App.D.C. 1, 124 F.2d 235, 241.
. The only provisions of the Railway Labor Act relevant to the content of an award are 45 U.S.C.A. § 153, First (p), quoted supra, and (m) which provides: “The awards * * * shall be stated in writing. * * * ”
. It must be noted that this conclusion differs substantially from that expressed in Railroad Yardmasters of North America, Inc., v. Indiana Harbor Belt R. Co., 7 Cir., 1948, 166 F.2d 326, 329-331 and System Federation No. 59 v. Louisiana & A. R. Co., 5 Cir., 1941, 119 F.2d 509, 513, certiorari denied, 1941, 314 U.S. 656, 62 S.Ct. 108, 86 L.Ed. 526. Compare, however, Virginian R. Co. v. System Federation No. 40, 4 Cir., 1942, 131 F.2d 840, 844-845; Munsey v. Virginian R. Co., D.C.E.D.Va.1941, 39 F.Supp. 881, 883.
. The only power given the court is to “enforce or set aside the order of the * * * Board.” 45 U.S.C.A. § 153, First (p). To this extent the proceeding is like an action on' a judgment. The court cannot shape a new order. Thus, if the order or award is so vague that the court is unable to tell what it requires, then we agree that a complaint seeking enforcement of it may be dismissed.
. 45 U.S.C.A. § 153, First (p).
. The rule that the estoppel of a judgment must be mutual is not without exception. See, e. g. Restatement, Judgments § 96, comment a (1942).
. The quoted language is that of the district judge. We take it that “now” refers to the time of the Board hearing. Certainly the Board cannot be expected to give notice to anyone who acquired an interest at a later date.
. As a matter of practice in three of the four divisions (including the 3d) notice has been given only to the labor organization which filed the claim and the carrier against whom it was filed. When the question of giving notice to individual employees has come before these divisions the union members have voted against it and the carrier members in favor of it, the result being a deadlock. The question has been regarded as procedural, thus has not been referred to referees. The union members’ position on this and related questions (filing of claims by individuals, intervention by individuals) has been that individuals are not proper parties before the Board. Their theory has been that the contracts upon which the claims before the Board are based are contracts between the unions and the carriers, that the Board members are selected and paid by these organizations, that the proceedings before the Adjustment Board are part of the collective bargaining system, and that therefore individuals have no place there. See Jones at 20-23, 55, 343-345; Sen. Doc. No. 8 at 188, Sen. Doc. No. 10 at 7-10, supra note 6.
. Brotherhood of Railroad Trainmen v. Templeton, 8 Cir., 1950, 181 F.2d 527, certiorari denied, 1950, 340 U.S. 823, 71 S.Ct. 57, rehearing denied, 1950, 340 U.S. 885, 71 S.Ct. 193; Hunter v. Atchison, T. & S. F. R. Co., 7 Cir., 1948, 171 F.2d 594, certiorari denied sub nom. Shepherd v. Hunter, 1949, 337 U.S. 916, 69 S.Ct. 1157, 93 L.Ed. 1726; Nord v. Griffin, 7 Cir., 1936, 86 F.2d 481, certiorari denied, 1937, 300 U.S. 673, 57 S.Ct. 612, 81 L.Ed. 879.
. See Jones, note 6 supra, at 271, 313-316.
. See Railroad Yardmasters of North America, Inc., v. Indiana Harbor Belt R. Co., 7 Cir., 1948, 166 F.2d 326, 331.
. Nord v. Griffin, note 16 supra; Estes v. Union Terminal Co., supra.
. Brotherhood of Railroad Trainmen v. Templeton, supra; Hunter v. Atchison, T. & S. F. R. Co., supra.
. Truax v. Raich, 1915, 239 U.S. 33, 38, 36 S.Ct. 7, 60 L.Ed. 131; Hunter v. Atchison, T. & S. F. R. Co., supra, 171 F.2d at page 597; Restatement, Torts §§ 809-812 (1939).
Question: Are the formally listed respondents in the case the "real parties", that is, are they the parties whose real interests are most directly at stake?
A. both 1st and 2nd listed respondents are real parties (or only one respondent, and that respondent is a real party)
B. the 1st respondent is not a real party
C. the 2nd respondent is not a real party
D. neither the 1st nor the 2nd respondents are real parties
E. not ascertained
Answer:
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songer_casetyp1_1-3-1
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Q
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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".
UNITED STATES of America v. Eddie Lee ALSTON a/k/a Eddie Lee, Appellant.
No. 77-2050.
United States Court of Appeals, District of Columbia Circuit.
Argued June 21, 1978.
Decided Oct. 22, 1979.
Allan Abbot Tuttle, Washington, D. C. (appointed by this Court), for appellant.
Whitney M. Adams, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Sil-bert, U. S. Atty., John A. Terry, Peter E. George, Brian W. Shaughnessy and Raymond Banoun, Asst. U. S. Attys., Washington, D. C., were on the brief, for appel-lee.
Before BAZELON, Senior Circuit Judge, and TUTTLE, Senior Circuit Judge for the Fifth Circuit, and ROBB, Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge BAZELON.
Dissenting opinion filed by Circuit Judge ROBB.
Sitting by designation pursuant to 28 U.S.C. § 294(d).
BAZELON, Senior Circuit Judge:
Appellant was convicted by a jury on all counts of a thirty-five count indictment charging violations of both federal and District of Columbia statutes. The offenses stemmed from a scheme in which appellant would be paid to have an accomplice delete adverse information from, and add fictitious favorable information to, the computerized credit files of individuals who had difficulty obtaining credit. The altered credit records would then be sent for approval to various lending institutions, ultimately allowing these individuals to purchase automobiles or other items. The indictment, which was based on only eight credit transactions, included one count of conspiracy, twenty-five counts of mail and wire fraud (counts 2-21 and 22-26), three counts of false statements to a federally insured bank (counts 27-29), and six counts of D.C. felony false pretenses (counts 30-35).
Certain of the multiple convictions under both federal and local law are contrary to congressional intent, requiring vacation of two or four convictions. Furthermore, the mailings at issue here cannot sustain convictions under the mail fraud statute because they occurred after the scheme to defraud had reached fruition. Finally, we vacate the sentences imposed on counts 27 through 29 of the indictment because they exceed the statutory maximum, and we remand for resentencing in accordance with 18 U.S.C. § 1014 and this opinion. The remainder of the judgment of the District Court is affirmed.
I.
MULTIPLE CONVICTIONS UNDER FEDERAL AND D.C. LAW
Each fraudulent credit transaction gave rise to multiple charges against Alston. In one transaction, an altered credit application and an altered credit report were sent by teletype (counts 13 and 15, wire fraud) to a federally insured savings bank (count 27, federal false statements), the applicant obtained an automobile loan from the bank (count 34, D.C. false pretenses), and the bank notified the dealer about the loan by telephone (count 20, wire fraud). In a second transaction, an individual applied for a home improvement loan from a federally insured bank (count 28, federal false statements), the credit bureau teleeopied an altered credit record to the bank (count 14, wire fraud), and the applicant obtained the loan (count 33, D.C. false pretenses). In four other transactions, applicants obtained automobile loans from a finance company (counts 30, 31, 32 and 35, D.C. false pretenses); in these transactions, wire fraud was charged for each time the automobile dealer telecopied a fraudulent application to the finance company (counts 2, 6, 9 and 11), the credit bureau telecopied an altered credit record to the lender (counts 3, 7, 10, 12 and 16), and the lender telephoned notice of loan approval to the dealer (counts 17, 18, 19 and 21). Mail fraud was charged each time the dealer mailed a completed sales contract to the lender (counts 22 through 26). Two remaining transactions, which involved unsuccessful attempts to obtain loans, triggered charges of federal false statements (count 29) and wire fraud (counts 4, 5, and 8).
This case raises problems that flow from an overkill of charges against a defendant. Pyramiding charges is particularly troublesome in the District of Columbia, where local and federal offenses can be joined in one indictment pursuant to 11 D.C.Code § 502 (1973).
Appellant argues that the multiple convictions under federal and local law denied him equal protection of the laws. Subsequent to the submission of this case for decision, this court has clarified the method by which we will analyze challenges to convictions under both federal and local law when the acts complained of arise within essentially the same transaction. As explained in United States v. Dorsey, the court must determine whether Congress intended to authorize multiple punishments under the particular statutes in question, and if so, whether the multiple punishments are constitutional. Therefore, we first consider whether Congress intended to impose multiple punishments for a single fraudulent transaction that violates both the D.C. false pretenses statute and either the federal false statements statute or the federal mail and wire fraud statutes. Because of the similar purposes underlying the false pretenses and false statements statutes, we think that Congress did not intend multiple punishments in the circumstances presented here. On the other hand, we do discern a congressional intent to impose multiple punishments when an act or transaction violates both the false pretenses and the mail or wire fraud statutes.
A.
The D.C. false pretenses statute, 22 D.C.Code § 1301 (1973), provides that “[wjhoever, by any false pretense, with intent to defraud, obtains from any person any service or anything of value,” shall be subjected to imprisonment for up to three years. The federal false statements statute, 18 U.S.C. § 1014 (1976), provides that “[w]hoever knowingly makes any false statement or report, . . . for the purpose of influencing in any way the action of . any [federally insured] bank” can be imprisoned for not more than two years.
Congress clearly defined separate offenses in each statute: “each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180,182, 76 L.Ed. 306 (1932); see Brown v. Ohio, 432 U.S. 161, 166, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977). Conviction on the local charge of false pretenses requires proof of the following elements: (1) a false representation; (2) knowledge of the falsity; (3) intent to defraud; (4) reliance by the defrauded party; and (5) obtaining something of value as a result of the false representation. Conviction on the federal charge of false statements requires proof of (1) a material false statement, (2) to a federally insured financial institution, (3) for the purpose of influencing the action of the institution.
On their face, the local and federal statutes address different interests. The local statute focuses on the loss of anything of value, regardless of the identity of the victim. The federal statute is designed to protect specific financial institutions from fraud “in connection with loans or other similar transactions.” The federal offense is complete when the false statement is made; it does not require that the bank actually part with something of value.
Yet some fraudulent loan applications might result in the grant of a loan, as occurred here, resulting in separate criminal charges based on the same act or acts. In this case, proof of the federal false statements charge coincided with proof of the D.C. false pretenses charge, except for the element of obtaining the loan: the “false statement” knowingly made was a “false representation”knowingly made; the “purpose of influencing the action” of the bank was the “intent to defraud” the bank to obtain a loan; and a bank having federally insured deposits was the “defrauded party” acting in reliance on the fraudulent application. Thus, in the context of this case the two counts allege essentially the same offense. Moreover, the three year maximum sentence under the D.C. false pretenses statute — applicable when a loan is actually obtained — appears analogous to an enhancement of the two years maximum sentence under the federal false statements statute — applicable when a false statement is made in an attempt to obtain a loan.
“[U]nless the intent of Congress is stated ‘clearly and without ambiguity, doubt will be resolved against turning a single transaction into multiple offenses.’ ” Since we find no such statement here, we apply “a corollary of the rule of lenity, an outgrowth of our reluctance to multiply punishments absent a clear and definite legislative directive.” Simpson v. United States, 435 U.S. 6, 15-16, 98 S.Ct. 909, 914, 55 L.Ed.2d 70 (1978). Accordingly, we direct vacation of the convictions under either counts 27 and 28 (false statements) or counts 33 and 34 (false pretenses) of the renumbered indictment, and appropriate re-sentencing of appellant.
B.
We turn now to the multiple punishments under the federal mail or wire fraud statutes and the D.C. false pretenses statute. The mail and wire fraud statutes prescribe a penalty for each use of the mails or wires “for the purpose of executing” a scheme to defraud or to obtain money or property by means of false pretenses. The focus of each statute is upon the misuse of the instrumentality of communication. The interest to be protected under these federal statutes is clearly distinct from the property interest safeguarded by the local statute. Several courts have found that Congress intended to authorize multiple punishment under both the mail or wire fraud statute and other federal fraud statutes. We conclude that Congress likewise intended violations of the mail or wire fraud statute to be separately punishable from violations of the local false pretenses statute.
Under the analytical framework established in United States v. Dorsey, supra, we next consider a constitutional inquiry:
[E]ven if Congress intends to punish a defendant twice for violating two statutory provisions, the double jeopardy clause may bar such multiple punishment at a single trial if the two statutory provisions constitute the “same offense” under Blockburger.
591 F.2d at 942.
The statutes in question clearly define separate offenses. Conviction for mail or wire fraud requires proof of only two elements: (1) a scheme to defraud, and (2) use of the mails or wires for the purpose of executing the scheme. Conviction for false pretenses requires proof of several additional elements, and does not require proof of use of the mails or wires. Since each requires proof of a fact that the other does not, they are clearly not the “same offense” under Blockburger. Thus, the double jeopardy clause does not prohibit multiple punishments under these statutes.
Appellant advances a second constitutional question in his claim that the multiple punishments denied him equal protection of the laws. This claim rests on an assumption that no defendant outside the District of Columbia would be subject to such double punishment because the Department of Justice’s Petite policy bars successive state-federal prosecutions for “the same act or acts.” The Petite policy was announced in 1959 in direct response to the Supreme Court’s rulings that the Constitution does not prohibit state and federal governments from prosecuting a defendant for the same act. As the Court recently explained in Rinaldi v. United States, 434 U.S. 22, 29, 98 S.Ct. 81, 85, 54 L.Ed.2d 207 (1977): “Although not constitutionally mandated, this [Petite] policy serves to protect interests which, but for the ‘dual sovereignty’ principle inherent in our federal system, would be embraced by the Double Jeopardy Clause.”
Although we recognize that the Petite policy is of long standing and strictly enforced, we conclude that it provides no basis for a successful equal protection claim here. The Petite policy is not law, but rather an executive policy that permits of exceptions in the Attorney General’s discretion. The federal government remains free, under the Supreme Court’s ruling in Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959), to bring a federal prosecution subsequent to a state prosecution. Furthermore, neither the Petite policy nor the Constitution serves as a bar to a state prosecution and sentence following a federal prosecution and sentence. It is possible, therefore, that defendants outside the District could be punished for both federal and state offenses arising from the same act or transaction.
II.
INTENT TO DEFRAUD
Appellant also argues that the evidence did not establish the intent to defraud required for convictions under the federal mail and wire fraud statutes, and the local false pretenses statute. Conceding that the loan applications and credit records were falsified in order to allow the applicants to obtain credit, appellant nevertheless contends that there was no intent to defraud because the applicants intended to repay the loans and because retention of a security interest in the goods made the loans risk free.
The requisite intent under the federal mail and wire fraud statutes may be inferred from the totality of the circumstances and need not be proven by direct evidence. Where, as here, the relevant documents contained material misrepresentations designed to induce an extension of credit that would not otherwise be made, the jury could reasonably infer intent to defraud. In addition, the misrepresentations in each transaction were made on two key documents and by several people acting in concert, thus increasing the likelihood that the creditor would be deceived as to the nature of the financial risk involved. We believe these facts support the jury’s verdict.
We also conclude that intent to defraud under the local false pretenses statute cannot turn solely upon an applicant’s alleged intent to repay the loan. In these transactions, the probabilities of repayment by the borrower over the long term were less than the lender was led to believe. We are not unmindful that installment and other credit sales have created financial problems of substantial proportions for consumers and creditors alike. Many consumers are financially incapable of paying outstanding debts, despite good intentions. Consequently, we cannot sanction a scheme whereby would-be borrowers fraudulently obtain loans that would not otherwise be available to them, regardless of whether they might have intended to repay so long as they were capable of doing so.
III.
USE OF THE MAILS
Finally, appellant asserts that his convictions on the five counts of mail fraud (counts 22-26) cannot stand. Each count arises from the mailing of an installment sales contract to the lender by the automobile dealer. Appellant argues that, because these mailings occurred after each applicant had taken possession of an automobile, they occurred after the scheme to defraud had reached fruition and were not sufficiently connected to the fraud to fall within the scope of the statute. If appellant is correct, then the convictions are invalid. See United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L.Ed.2d 603 (1974).
For conviction under the mail fraud statute, the mails must be used “for the purpose of executing” the fraudulent scheme, and not merely “as a result of” such scheme. See id. at 405, 94 S.Ct. 645. In Kann v. United States, 323 U.S. 88, 65 S.Ct. 148, 89 L.Ed. 88 (1944), the Supreme Court held that a scheme involving fraudulently obtained checks was completed once the checks were cashed. The Court reasoned that the defendants had intended to receive money, and that the money had been received “irrevocably” when they cashed the checks. Thus, when the payor banks mailed the checks to the drawee bank for collection, the mailings were not for the purpose of executing the scheme. See id. at 94, 65 S.Ct. 148. Similarly, in Parr v. United States, 363 U.S. 370, 80 S.Ct. 1171, 4 L.Ed.2d 1277 (1960), the defendants had obtained gasoline and other products and services by the unauthorized use of a credit card issued to their employer. The defendants were charged with mail fraud for having “caused” the sending of invoices to the employer and the sending of payments to the issuer. The Court held the convictions invalid on the ground that defendants’ scheme reached fruition when the goods and services were received, because “[i]t was immaterial to them, or to any consummation of the scheme, how the [oil company] would . . . collect” its payment. Id. at 393, 80 S.Ct. at 1184. Most recently, in United States v. Maze, supra, the Court ruled that mailings of credit card sales invoices by merchants to a bank, and by the bank to the credit card holder, could not support mail fraud convictions because the defendant, who had stolen the credit card, had irrevocably received the goods and services before the mailings occurred. Nor did the subsequent mailings constitute “ ‘deliberate, planned use of the mails’ ” by the perpetrator to aid the continuation or concealment of the fraudulent scheme. 414 U.S. at 403, 94 S.Ct. at 650 (quoting United States v. Sampson, 371 U.S. 75, 80, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962)). Thus, the mail fraud statute was inapplicable to the mailings.
Appellant here argues that, since the object of the scheme was to obtain an automobile, it reached fruition once the car was driven off the dealer’s lot. The Government, on the other hand, contends that the object was to obtain credit and use of the car over the loan period. Under this theory, the mailing of the conditional sales contract after the loan applicant had obtained credit approval and a car would be within the coverage of the statute.
We believe that the scheme to defraud reached fruition before the mailing of each conditional sales contract. The dealer’s mailing of the contract, which contained the terms of payment and an assignment of the contract to the lending institution, neither furthered the objective of the scheme (i. e., obtaining a loan for the applicant) nor served to conceal the fraudulent representations. Although the signing of the installment contract may have been a contemplated step toward obtaining possession of the car, we believe the subsequent mailing was immaterial to the fraud perpetrated upon the lender by the borrower. We therefore vacate the convictions on counts 22 through 26 on the grounds that the mailings were not “for the purpose of executing” the scheme to obtain loans.
IV.
Por the foregoing reasons, we vacate the judgment of the District Court with respect to counts 22 through 29 and counts 33 and 34 of the indictment, and we remand for resentencing in accordance with 18 U.S.C. § 1014 and this opinion. The remainder of the judgment is affirmed.
It is so ordered.
. 18 U.S.C. § 371 (1976).
. 18 U.S.C. § 1341 (1976).
. 18 U.S.C. § 1343 (1976).
. 18 U.S.C. § 1014 (1976).
. 22 D.C.Code § 1301 (1973).
. In imposing sentence, the District Court inadvertently referred to a copy of the indictment other than the renumbered indictment returned by the Grand Jury. All references in this opinion are to the renumbered indictment.
The District Court imposed concurrent sentences of twenty months to five years on counts “1 through 29,” and eight months to two years on counts “30 through 32.” On counts “33 through 35,” the District Court imposed sentences of ten months to three years, concurrent with each other but consecutive to the sentences imposed on counts 1 through 32. Counts 27 through 29 of the renumbered indictment, however, are federal false statements charges carrying a maximum sentence of two years; thus, the imposed sentences of five years on these counts must be vacated.
. Appellant also argues that the trial court erred both in declining to poll the jury concerning a television news segment broadcast during the trial, and in allowing the prosecutor to cross-examine appellant concerning plea bargaining after the subject was raised by appellant on direct examination. In light of the record as a whole, including the various cautionary instructions to the jury with respect to these matters, we find no abuse of discretion by the trial court.
. See United States v. Girst, (D.C. Cir. No. 77-1604, decided Mar. 28, 1979); United States v. Dorsey, 192 U.S.App.D.C. 313, 591 F.2d 922 (1978).
. 192 U.S.App.D.C. 313, 328, 591 F.2d 922, 937 (D.C. Cir. 1978).
. Fowler v. United States, 374 A.2d 856, 859 (D.C.Ct.App. 1977).
. E. g., United States v. Potts, 540 F.2d 1278, 1280 (5th Cir. 1976); United States v. Savatino, 485 F.2d 540, 544 (2d Cir. 1973), cert. denied, 415 U.S. 948, 94 S.Ct. 1469, 39 L.Ed.2d 563 (1974).
. H.R.Rep.No. 1784, 91st Cong., 2d Sess. 66 (1970) (Conference Report); H.R.Rep.No. 1556, 91st Cong., 2d Sess. 35 (1970) U.S.Code Cong. & Admin.News 1970, p. 5582; see United States v. Lentz, 524 F.2d 69, 71 (5th Cir. 1975), rehearing en banc denied, 526 F.2d 815 (5th Cir. 1976).
. See, e. g., United States v. Trexler, 474 F.2d 369, 372 (5th Cir.), cert. denied, 412 U.S. 929, 93 S.Ct. 2759, 37 L.Ed.2d 157 (1973).
. Only two of eight fraudulent applications did not yield loans in this case.
. Cf. United States v. Girst, supra note 8, slip op. at 10 (transportation in interstate commerce of a firearm by a felon was, on the facts presented, a single offense which could not be punished under two federal statutes).
. United States v. Knight, 166 U.S.App.D.C. 21, 509 F.2d 354, 361-62 (D.C. Cir. 1974), quoting United States v. Canty, 152 U.S.App.D.C. 103, 469 F.2d 114, 126-27 (D.C. Cir. 1972); see United States v. Dorsey, supra note 8, at 930.
. 18 U.S.C. § 1341 provides in pertinent part:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, . . . for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom, ... or knowingly causes to be delivered by mail . . . any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both. [Emphasis added.]
. 18 U.S.C. § 1343 provides in pertinent part:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, transmits or causes to be transmitted by means of wire, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined not more than $1,000 or imprisoned not more than five years, or both. [Emphasis added.]
. See, e. g., United States v. Joyce, 499 F.2d 9, 18 (7th Cir.), cert. denied, 419 U.S. 1031, 95 S.Ct. 512, 42 L.Ed.2d 306 (1974); Henderson v. United States, 425 F.2d 134, 138 n. 4 (5th Cir. 1970); Hanrahan v. United States, 121 U.S. App.D.C. 134, 348 F.2d 363, 366 (D.C. Cir. 1965), cert. denied, 389 U.S. 845, 88 S.Ct. 95, 19 L.Ed.2d 111 (1967).
. The mail fraud statute and the wire fraud statute have both been construed as authorizing multiple convictions for multiple fraudulent uses. See, e. g., United States v. Calvert, 523 F.2d 895, 903 n. 6, 903-04 (8th Cir. 1975), cert. denied, 424 U.S. 911, 96 S.Ct. 1106, 47 L.Ed.2d 314 (1976); Henderson v. United States, 425 F.2d 134, 138 n. 4 (5th Cir. 1970).
. See, e. g., United States v. Weatherspoon, 581 F.2d 595, 600 (7th Cir. 1978) (mail fraud and false statements); United States v. Mahler, 579 F.2d 730, 731 & n. 2 (2d Cir.) (mail and wire fraud and securities fraud), cert. denied, 439 U.S. 991, 99 S.Ct. 592, 58 L.Ed.2d 666 (1978).
. Pereira v. United States, 347 U.S. 1, 8, 74 S.Ct. 358, 98 L.Ed. 435 (1954); United States v. Pollack, 175 U.S.App.D.C. 227, 534 F.2d 964, 971 (D.C. Cir. 1976), cert. denied, 429 U.S. 924, 97 S.Ct. 324, 50 L.Ed.2d 292 (1976).
. See text accompanying note 10 supra.
. See Petite v. United States, 361 U.S. 529, 530, 80 S.Ct. 450, 4 L.Ed.2d 490 (1960).
. The policy, as originally stated by the Attorney General, is: “After a state prosecution there should be no federal trial for the same act or acts unless the reasons are compelling.” U.S. Dep’t of Justice Press Release at 1 (Apr. 6, 1959).
For a recent critical discussion of the Petite policy, see Note, The Problem of Double Jeopardy in Successive Federal-State Prosecutions: A Fifih Amendment Solution, 31 Stan.L.Rev. 477, 488-96 (1979).
. See Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959).
. In Rinaldi v. United States, 434 U.S. 22, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977), the Supreme Court held that federal courts must respect even a belated effort by the Justice Department to invoke the Petite policy. Defendant in Ri-naldi was charged with state offenses and was then indicted for federal offenses stemming from a hotel robbery. He was convicted of the state charges and sentenced to six years’ imprisonment. Subsequent to the state conviction, two federal trials were held, the first having ended in a mistrial. Defendant was convicted of the federal charges after a jury trial, and was sentenced to twelve years’ imprisonment to run concurrently with the state sentence. On appeal from the federal judgment, defendant argued that his conviction violated the Petite policy. The Government agreed and asked the appellate court to remand the case so that the Government could move to dismiss the indictment. After remand, the District Court denied the Government’s motion to dismiss and the Fifth Circuit en banc affirmed the lower court’s ruling. But the Supreme Court vacated the judgment and ordered dismissal of the indictment. In so doing the Court stated that, although the expenditure of judicial and prose-cutorial resources was by then irreparable, “ ‘no societal interest would be vindicated by punishing further a defendant who has already been convicted and has received a substantial sentence in state court. . . Id. at 31, 98 S.Ct. at 86 (quoting Solicitor General).
. See United States v. Jones, 174 U.S.App. D.C. 34, 527 F.2d 817, 821-23 (D.C. Cir. 1975).
. If a United States Attorney believes that a dual prosecution would be appropriate under the “compelling reasons” standard, he or she can request approval from the Assistant Attorney General of the relevant Division and then from the Attorney General. See U.S. Dep’t of Justice Press Release, supra note 25, at 1.
. See Rinaldi v. United States, supra note 27, 434 U.S. at 29, 98 S.Ct. 81 (discussing with approval the “dual sovereignty” principle).
. We note in passing that this case presents another example of “the injustice engendered by the unfettered and generally unguided exercise of that awesome power” of prosecutorial discretion. United States v. Roberts, 600 F.2d 815, 818 (D.C.Cir.1978), rehearing en banc denied (Apr. 30, 1979), cert. granted, - U.S. -, 100 S.Ct. 42, 62 L.Ed.2d 29 (1979). Statement of Bazelon, Circuit Judge, as to why he voted for rehearing en banc, slip op. at 7 n. 12.
The Supreme Court decisions in Abbate and Bartkus, supra note 26, holding that both the federal and state governments may prosecute a defendant for the same act or acts, are grounded in principles of federalism: where the laws of two “sovereigns” are violated, each government may have a legitimate reason for exercising its power of criminal prosecution. But this underlying rationale is absent where a defendant is prosecuted for violating laws of both the United States and the District of Columbia, since the laws emanate from one sovereign. Moreover, the Supreme Court and this court have long recognized that multiple punishments for essentially the same acts are unwarranted except “in instances of particular enormity, or where the public safety demanded extraordinary rigor.” Fox v. Ohio, 46 U.S. (5 How.) 410, 434, 12 L.Ed. 213 (1847), quoted with approval in Rinaldi v. United States, supra note 27, 434 U.S. at 27-28, 98 S.Ct. 81; see United States v. Knight, supra note 16, 166 U.S.App.D.C. 21, 509 F.2d at 351. One may seriously question whether this case satisfies those criteria.
Former Attorney General Rogers, in announcing the Petite policy, stated: “the mere existence of a power [to multiple punishments] . does not mean that it should necessarily be exercised.” U.S. Dep’t of Justice Press Release, supra note 25, at 2. Government prosecutors in the fifty states must show “compelling reasons” before federal punishments will be added to those of the state for the same act or acts. See note 29 supra. To the extent that this policy strikes a satisfactory balance between vindicating societal interests and avoiding unfairness to defendants, may it fairly be said that a similar policy is appropriate in the District of Columbia?
. See, e. g., United States v. Arnold, 543 F.2d 1224, 1225-26 (8th Cir. 1976), cert. denied, 429 U.S. 1051, 97 S.Ct. 765, 50 L.Ed.2d 768 (1977).
. See id. (material misrepresentations on a credit card application support inference of fraudulent intent).
. For discussion of the current high level of consumer debt and the financial inability of many consumers to repay creditors, see NEWSWEEK, Jan. 8, 1979, at 46-54; TIME, Dec. 25, 1978, at 53.
. See United States v. Maze, 414 U.S. at 402-OS, 94 S.Ct. 645.
. See id. at 400, 94 S.Ct. 645 (quoting Kann v. United States, supra, 323 U.S. at 94, 65 S.Ct. 148).
We believe it unnecessary to decide the exact point at which this scheme culminated, whether it be when the lender approved the loan or when the installment sales contract was signed. We only decide that the mailings at issue were too remote to be within the intended coverage of the mail fraud statute.
We also note that, under the Government’s theory, even the regular mailing of each installment payment could constitute a violation of the mail fraud statute. We decline to open the door to such a result, which would impose greater criminal penalties on those who repay loans than on those who intentionally default.
. We recognize that vacating these convictions will not reduce the length of appellant’s maximum sentence, since the mail fraud sentences were concurrent with the remaining sentences on the conspiracy and wire fraud counts. However, this does not bar appellate review and, when necessary, correction. See Benton v. Maryland, 395 U.S. 784, 787-91, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969); United States v. Knight, 166 U.S.App.D.C. 21, 509 F.2d 354, 359 (D.C.Cir. 1974); United States v. Canty, 152 U.S.App.D.C. 103, 469 F.2d 114, 126 & n.14 (D.C.Cir. 1972); United States v. Hooper, 139 U.S.App.D.C. 171, 432 F.2d 604, 605 & n.3 (D.C.Cir. 1970).
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_genapel1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
UNITED STATES v. MOTT.
Circuit Court of Appeals, Tenth Circuit.
January 27, 1930.
No. 136.
Charles B. Selby, Sp. Asst, to Atty. Gen. (Seth W. Richardson, Asst. Atty. Gen., John M. Goldesberry, U. S. Atty., of Tulsa, Okl., and Louis N. Stivers, Asst. U. S. Atty., of Tulsa, Okl., on the brief), for the United States.
Edwin S. Booth, lof Washington, D. C. (Chas. B. Rogers, of Tulsa, Okl., on the brief), for appellee.
Before LEWIS, PHILLIPS, and MeDERMOTT, Circuit Judges.
LEWIS, Circuit'Judge.
This suit was brought by the United States in behalf of one Jackson Barnett, a full-blood Creek Indian, to recover of appellee Mott $15,000 face value U. S. Government Bonds, or their proceeds or value if they have been converted. It is alleged that the bonds are the property of Barnett and that they came into the possession of Mott in this way: Barnett was allotted 160 acres out of Creek Tribal lands, which proved to be valuable in oil deposits. With the approval of the Secretary of the Interior the land was leased and large sums came into his possession from1 royalties paid for the oil produced, and these royalties, were ■ invested in United States bonds, amounting in face value to more than one million dollars. The bonds were held by the Secretary of the Treasury. Early in 1923 Barnett and his wife went to Washington, and with assistance of counsel sought to induce the Secretary of the Interior to deliver to them $1,160,009 face value of these bonds, with the understanding that they would be used or disposed of as hereinafter stated. He finally complied with their request, got the bonds from the Treasury and $550,000 in face value were delivered to the Equitable Trust Company of New York, which was to hold them as trustee and from the income pay Barnett $20,000 yearly so long as he should live, the remainder of the income until Barnett’s death to go to the American Baptist Home Mission Society of New York, and on the death of Barnett all of the income to be paid to that society. At the same time the additional $550,000 face value U. S. ■bonds belonging to Barnett were turned over to Barnett’s wife, whom he had recently married and who is a white woman. Of the bonds so turned over to Barnett’s wife the understanding was that she should deposit $200,000 thereof in the Riggs National Bank of Washington, D. C., to be held in trust, and of the yearly income $7,500 was to be paid to Barnett during his life, the remainder of the income during that time, if any, to be paid to his wife, and upon his death the whole income and various portions of the principal, were from timé to time to be also paid to her or to her daughter until all thereof had been so paid. She complied with this part of the arrangement and deposited the $200,000 in bonds with the bank. Of the remaining $350,000 face value of said bonds turned over to her she immediately delivered $150,000 thereof to Harold C. MeGugin, who appears to have been the chief adviser in the whole affair, and MeGugin delivered $15,000 face value of said bonds to the defendant Mott. These are the bonds sued for.
Plaintiff further charged that the Secretary of the Interior, MeGugin, Mott and others who participated in the transaction knew that all of the bonds were the property of Barnett and had been purchased for him with royalties on oil taken from his restricted allotment; they also knew that Barnett was a mental incompetent without capacity to make or to initiate the disposition and distribution of said bonds and that the officers of the United State's participating in the transaction were without authority of law to dispose of said bonds in the manner stated, and that the disposition made of them was contrary to the purpose, intent and effect of the law in such ease; that Barnett at the time was of the age of about 70 years, illiterate, mentally incompetent and wholly incapable of managing his own affairs or of earing for his property, and unable to appreciate and understand the nature and extent thereof, and that the delivery and distribution of said bonds was based upon a purported request in writing bearing the thumb print of said Barnett, which by reason of his mental infirmity he was wholly unable to comprehend and understand.
The foregoing facts were alleged in a second amended complaint. The original complaint is not in the record. The first amended complaint contains in substance the allegations of fact that have been stated, and in addition thereto it charged fraudulent conduct and a conspiracy on the part of Barnett’s wife, McGugin, Mott and others to get for themselves a large part of Barnett’s property. The second amended complaint omitted the allegations of fraud and conspiracy. The court below held that the tendered pleading did not state any ground for relief and, denied the request to file it. This appeal was then taken, the error assigned being the refusal of the court to permit the second amended complaint to be filed. The theory of the suit, disclosed in the tendered pleading, is that the Secretary of the Interior exceeded his power in delivering the bonds, that he was fully advised of the whole plan and purpose of McGugin et al., and the distribution of the bonds to be made after delivery, and that because thereof the bonds are still the property of Barnett.
The Act of May 27, 1908 (35 Stat. 312), treats of allotments to members of the Five Civilized Tribes, restrictions on disposition by the allottees and the power of the Secretary of the Interior in relation thereto. Section one of the Act provides, among other things, “and all allotted lands of enrolled full-bloods * * 91 shall not be subject to1 alienation, contract to sell, power of attorney, or any other incumbrance prior to April twenty-six, nineteen hundred and thirty-one, except that the Secretary of the Interior may remove such restrictions, wholly or in part, under such rules and regulations concerning terms of sale and disposal of the proceeds for the benefit of the respective Indians as he may prescribe.” Section 2, in part: “That leases of restricted lands for oil, gas or other mining purposes, * * * may be made, with tfcie approval of the Secretary of the Interior, under rules and regulations provided by the Secretary of the Interior, and not otherwise.” Section 5: “That any attempted alienation or incumbrance by deed, mortgage, contract to sell, power of attorney, or other instrument or method of incumbering real estate, made before or after the approval of this Act, which affects the title of the land allotted to allottees of the Five Civilized Tribes prior to removal of restrictions therefrom, and also any lease of such restricted land made in violation of law before or after the approval of this Act shall be absolutely null and void.” These provisions of the Act established Barnett’s legal ineompeteney to manage his own affairs, and so we need give no consideration to the allegations that he was in fact mentally incompetent. Congress, in the exercise of undoubted power, provided in this Act that the Government should control and preserve Barnett’s property. This protecting care included not only his allotment but also the income therefrom. Sunderland v. United States, 266 U. S. 226, 45 S. Ct. 64, 69 L. Ed. 259; United States v. Brown (C. C. A.) 8 F.(2d) 564. The United States, through its Secretary, took the royalties for mineral produced from his allotment, as his guardian, and held them and the bonds purchased with them in trust for him. Assuming the Secretary had power to remove restrictions on Barnett’s disposition of the bonds, as he had to remove restrictions on disposition of his allotment; still the Act further provided that disposal of the proceeds, in event re- ' stiietions were removed,- should be for Barnett’s benefit. The duty o-f the Secretary, then, did not cease with removing restrictions and thus permitting disposal, but he was also charged with the further duty and authority in the same transaction of seeing that disposal should be made for his benefit. Manifestly, it is the intention of the Aet to safeguard at all times the property of full-bloods, whether allotments or proceeds therefrom, for their benefit. The bonds were Barnett’s property and tbe Secretary, as Government agent, bad the power and was eharged with the duty of holding control over their disposition for the benefit of Barnett, and for no one else. He had no right to dispose of them -as gifts or donations nor consent to such disposal. Of course, no one would argue that reasonable sums for those purposes might not be disbursed with the Secretary’s consent, and likewise amounts from time to time for Barnett’s proper maintenance. But-that is not this ease. The statute is an assurance of protection against spoliation. The Secretary’s duty and power are not complied with by simply removing restrictions on alienation to a large part, probably here the far greater part, of the ward’s estate; as part thereof it is further required of him that he agree to the terms of sale and the disposal of the proceeds. He is given no authority to turn over the property or its proceeds to the Indian, nor consent that others might take to themselves the whole or a large part of it. Nor do we know of any authority in him to surrender the trust in which these bonds were held by the Government and eonsent to their deposit with others as trustees on terms that took from Barnett all property right in the principal and denied to him their full interest yield. As to the $350,000 given to Mrs. Barnett, she could on delivery make disposition as she might wish, and she at onee did so to the extent of almost half. In Barnett v. Equitable Trust Co. (D. C.) 21 F.(2d) 325, Judge Knox ordered that the $550,000 in bonds held by the trust company be returned to the Secretary of the Interior. It may be conceded that if under facts in a given case it should be debatable whether action of tbe Secretary was for tbe benefit of tbe allottee, bis judgment and action ought to control; but we are unable to see any ground on which a claim may be made that the disposition of any of these bonds was for the benefit of Barnett, within the meaning and requirement of the statute. It seems clear to us that the statute is obligatory in 'that respect, and that the Secretary had no right to eonsent to the transaction. He had the power and was charged with the duty of preventing it. And so we conclude there was arbitrary and unauthorized aetion by the Secretary violative of the trust, with full knowledge on the part of all participants.
Where an executive officer, under Ms misconstruction of the law, has acted without or beyond the powers given him, the courts have jurisdiction to restore the status quo ante insofar as that may be done. Garfield v. Goldsby, 211 U. S. 249, 261, 262, 29 S. Ct. 62, 53 L. Ed. 168; Work v. Louisiana, 269 U. S. 250, 254, 46 S. Ct. 92, 70 L. Ed. 259; Santa Fe Pacific R. R. Co. v. Fall, 259 U. S. 197, 199, 42 S. Ct. 466, 66 L. Ed. 896; Payne v. Central Pacific Ry. Co., 255 U. S. 228, 238, 41 S. Ct. 314, 65 L. Ed. 598; Williamson v. United States, 207 U. S. 425, 462, 28 S. Ct. 163, 52 L. Ed. 278; Hemmer v. United States (C. C. A.) 204 F. 898, 905; Leecy v. United States (C. C. A.) 190 F. 289, 292.
The decree of dismissal is reversed with directions to reinstate the suit, permit appellant to file its tendered second amended complaint and give appellees reasonable time within which to file answer.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_majvotes
|
2
|
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.
SOCIALIST WORKERS PARTY; George Richard McBride; James Kenneth Gotesky; Elvena Elizabeth Brady; Cleve Andrew Pulley; Toba Leah Singer, Plaintiffs-Appellants, v. Ken HECHLER, in his official capacities as Secretary of State of West Virginia and Member, State Election Commission Office of Secretary of State; Allan Hammock, in his official capacity as Member, State Election Commission Office of Secretary of State; Barbara Ruley, in her official capacity as Member, State Election Commission Office of Secretary of State; Ben Bryant, in his official capacity as Member, State Election Commission Office of Secretary of State; Perry Reed, Defendants-Appellees.
No. 88-2199.
United States Court of Appeals, Fourth Circuit.
Argued May 13, 1989.
Decided Nov. 29, 1989.
Rehearing and Rehearing In Banc Denied Dec. 28,1989.
Robert Milton Bastress, Jr., Morgan-town, W.Va., for plaintiffs-appellants.
Robert Eugene Wilkinson, Sp. Asst. Atty. Gen., for defendants-appellees.
Before HALL and WILKINSON, Circuit Judges, and WILLIAMS, Senior District Judge for the Western District of Virginia, sitting by designation.
GLEN M. WILLIAMS, Senior District Judge:
Appellants, the Socialist Workers Party and five individuals, brought suit against the members of the West Virginia State Election Commission alleging that certain provisions of the state’s election laws are unconstitutional. Specifically, they object to the provision that individuals who sign nominating petitions for minor party candidates thereby lose their right to vote in the primary election; the requirement that minor party candidates must file their certificates of candidacy a month before the primary and their nominating petitions the day before the primary; the requirement that a candidate who cannot afford a filing fee submit a petition in lieu of the fee separate from the nominating petition; and finally the requirement that persons who sign nominating petitions state that they “desire to vote” for the candidate named in the petition.
The district court, in a lengthy and detailed opinion, 696 F.Supp. 190, upheld all of the challenged provisions, and the plaintiffs now bring this appeal.
I.
Challenges by third parties and independent candidates of various state regulatory schemes are no longer novel. The Supreme Court has held that voters have the right under the First and Fourteenth Amendments to cast their ballots effectively, Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968) (Black, J.), and that “[t]he right to form a party ... means little if [it] can be kept off an election ballot and thus denied an equal opportunity to win votes.” Id. at 31, 89 S.Ct. at 10. The exclusion of all but major-party candidates from the ballot heavily burdens the right to vote since all voters want to be able to vote for someone who reflects their views on the issues of the day. Id.; Lubin v. Panish, 415 U.S. 709, 716, 94 S.Ct. 1315, 1320, 39 L.Ed.2d 702 (1974). However, these general principles are not to be interpreted as an open sesame for minor parties and individuals who want to appear on the ballot with the major candidates.
The State has the undoubted right to require candidates to make a preliminary showing of substantial support in order to qualify for a place on the ballot, because it is both wasteful and confusing to encumber the ballot with the names of frivolous candidates.
Anderson v. Celebrezze, 460 U.S. 780, 788 n. 9, 103 S.Ct. 1564, 1570 n. 9, 75 L.Ed.2d 547 (1983); Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 1976, 29 L.Ed.2d 554 (1971).
Because of the wide variation in the approaches of different states to the problem of ballot access, the Supreme Court in Anderson laid down a balancing test to determine the constitutional validity of the various state schemes. A court
must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiffs rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional. The results of this evaluation will not be automatic; as we have recognized, there is “no substitute for the hard judgments that must be made.”
460 U.S. at 789-90, 103 S.Ct. at 1570 (citations omitted).
II.
The district court proceeded to examine the challenged provisions of West Virginia’s elections laws in light of the Anderson standard. It found that the statute, W.Va.Code § 3-5-23(c) and (d), which forces voters to choose between signing a nominating petition and voting in the primary election was proper, citing American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974), in which the Supreme Court sustained a similar provision of the Texas election code on the grounds that there is “nothing invidious in disqualifying those who have voted at a party primary from signing petitions for another party seeking ballot position for its candidates for the same offices.” Id. at 786, 94 S.Ct. at 1308.
Plaintiffs, however, point to a difference between the West Virginia scheme and the Texas statute upheld by the Supreme Court in White. In Texas, a third party which fails to garner enough support at its nominating convention on primary day “may make up the shortage and win ballot positions by circulating petitions for signature for a period of 55 days beginning after the primary and ending 120 days prior to the general election.” Id. at 784, 94 S.Ct. at 1307. It is the lack of such a second chance in West Virginia which the plaintiffs see as “imposing] a substantial, over-broad, and unnecessary burden” on their access to the ballot.
The plaintiffs complain that the lack of a post-primary makeup period for gathering signatures burdens them in two ways: first, contrary to the district court's supposition, the fact that only about 50% of the West Virginia electorate participates in the primary does not automatically mean that the other 50% will be available for signing nominating petitions because many of those people will not be willing to abandon their right to vote in the primary until the last minute, if at all. Second, the act of signing a nominating petition for a candidate in one race results in the loss of the right to vote on primary day in other races as well. This places a substantial burden on minor parties and independent candidates which is not balanced, according to the plaintiffs, by any corresponding state interest.
This argument is substantially undermined by a close look at the relevant precedents. The situation which obtained in American Party of Texas v. White is not so simple as plaintiffs suggest. There, Texas election laws provided the following system for candidates whose party polled less than two percent of the vote at the preceding election to get on the ballot: first, the party was required to hold precinct, county, and state conventions to nominate candidates and had to evidence support by persons numbering at least one percent of the total vote cast for governor at the preceding general election, by preparing a list of the qualified voters and sending it to the Secretary of State within twenty days. 415 U.S. at 777, 94 S.Ct. at 1304. If this were insufficient, only then would the petition process kick in. The party might gather signatures from qualified voters who had not participated in the primary. They must, however, have taken an oath stating, inter alia, that they were qualified voters who have not participated in the primary.
The West Virginia Supreme Court, contrasting the Texas scheme with their own, stated, “We cannot help but believe that our straightforward signature petition standard is much less burdensome than the Texas precinct convention and second chance scheme.” West Virginia Libertarian Party v. Manchin, 270 S.E.2d 634, 646 (W.Va.1980).
On balance, we agree with the West Virginia Supreme Court and the district court. The state interest in regulating the number of candidates on the ballot in order to avoid voter confusion, whether it be described as “important,” Jenness v. Fortson, 403 U.S. at 442, 91 S.Ct. at 1976, or “compelling,” American Party of Texas v. White, 415 U.S. at 782 n. 14, 94 S.Ct. at 1307 n. 14, is “generally sufficient to justify reasonable nondiscriminatory restrictions.” Anderson v. Celebrezze, 460 U.S. at 788, 103 S.Ct. at 1569. It is not enough for the plaintiffs to make a limited comparison of the West Virginia scheme with the Texas scheme upheld by the Sup eme Court in American Party, find some way in which the West Virginia plan is more restrictive, and therefore expect this court to declare it unconstitutional. The Supreme Court did not declare the Texas plan to be a paradigm, deviations from which are impermissible; it simply found it, taken as a whole, to be within the bounds of the Constitution. Although it might be somewhat easier to collect signatures after the primary, as in Texas, rather than before, minor parties under the West Virginia plan are spared the necessity of having Texas-style precinct, county, and state conventions, a not inconsiderable burden in itself.
This view is bolstered by the holding in Jenness v. Fortson. There, the Supreme Court upheld a Georgia scheme very similar to West Virginia’s. Georgia allowed the candidate of minor parties to win a place on the ballot by filing a nominating petition signed by five percent of persons eligible to vote in the last election for the particular office. 403 U.S. at 433, 91 S.Ct. at 1971. The candidate was allowed 180 days to gather the signatures, and the petition had to be filed by the same deadline as a candidate filing for a party primary. Although Georgia placed fewer restrictions on the right of an individual to sign a nominating petition — for instance, a person who previously signed a petition could vote in the primary — West Virginia’s restrictions are balanced by the one percent requirement, as opposed to Georgia's five percent, and by the fact that there is no restriction in West Virginia on the length of time spent on gathering the signatures, while Georgia required this to be done no more than 180 days before the petitions were filed. Id. To reiterate, we agree that, on balance, West Virginia’s scheme is no more burdensome, and in some important respects is less burdensome, than those of other states which have been found constitutional.
The district court also affirmed § 3-5-23(e), which requires the number of signatures on a nominating petition to be, at a minimum, one percent of the votes cast for the office at the previous general election. Not only have one percent requirements been upheld by the Supreme Court, see Munro v. Socialist Workers Party, 479 U.S. 189, 198, 107 S.Ct. 533, 539, 93 L.Ed.2d 499 (1986); American Party of Texas v. White, 415 U.S. at 783, 94 S.Ct. at 1307, but as noted earlier, Georgia’s five percent requirement as well. Jenness v. Fortson, 403 U.S. at 442, 91 S.Ct. at 1976. The plaintiffs do not challenge the one percent requirement on appeal, but do say that combined with certain provisions of § 3-5-8(a), it violates Equal Protection and First Amendment rights. This last code section provides that indigent political candidates may obtain a place on the ballot without paying the statutory filing fee if, after filing an oath that they are unable to pay, they submit “in-lieu-of-filing-fee petition forms” with the number of signatures equaling four times the dollar amount of the statutory fee. It also provides that none of the signatures gathered on this petition can be counted towards meeting the nominating petition minimum. In other words, the signatures obtained for one petition cannot take the place of signatures on the other, although the same people can sign both.
The appellants’ position is that if they have proved their “seriousness” and a minimum level of support once, it is an unconstitutional burden on their political rights to make them prove the same thing, in effect, in a second petition.
The district court, in holding that the statute was constitutional, pointed out that the actual number of signatures required was small. It noted that plaintiffs McBride and Gotesky would be required to gather 3,580 signatures apiece, and plaintiff Brady only 1,728. The court, in applying the Anderson balancing test, found that the burden that obtaining this number of signatures imposed was modest, especially in comparison with the requirements of the in-lieu-of-filing-fee schemes of other states which have been upheld. Furthermore, those who sign this petition do not forfeit the right to vote in the primary, thus doubling the number of potential signatories. Finally, as noted earlier, although signatures gathered on the nominating petition cannot be counted towards meeting the in-lieu-of-filing-fee petition requirements, the difficulty of finding more signatories may easily be overcome by having the same people sign both petitions. Surely no one who would sign a nominating certificate would have any objection to signing an in-lieu-of-filing-fee petition. Therefore, the burden alleged by plaintiffs would appear to be de minimis. Thus there was no error in the district court’s holding.
III.
The plaintiffs allege that the requirement contained in § S — 5—23(d), that a person who signs a nominating certificate must declare that “he desires to vote” for the named candidate, is unconstitutional. The district court, reading the subsection as a whole, interpreted this provision only as intending to insure that the subscribers realize that they are giving up their vote in the primary. We respectfully disagree.
Section 3 — 5—23(d) provides that “the content [of nominating certificates] shall include the language to be used in giving written and oral notice to each voter that signing of the nominating certificate forfeits that voter’s right to vote in the corresponding primary election.” This provision is entirely separate and apart from the requirement that subscribers state their “desire to vote” for the candidate. In our view there can be only one interpretation of this language in the mind of a subscriber: that since he has been told separately that he cannot vote in the primary, the declaration of his intention to support the candidate can only apply to the general election.
Under West Virginia law, the signature of a voter on a nominating certificate is essentially another way of voting in the primary. The West Virginia Supreme Court of Appeals has held that “[although] the act of signing the [nominating] certificate does not constitute a vote in the usual sense, nor is the certificate a ballot ... such act is so analogous to the voting process that it is entitled to the same consideration as a vote by ballot.” State ex rel. Daily Gazette Co. v. Bailey, 152 W.Va. 521, 164 S.E.2d 414, 417 (1968). The same case also holds that signers of nominating certificates are “affirmatively making a nomination, which, if done in accordance with the appropriate statute, would succeed in placing their candidate on the ballot in the general election.” 164 S.E.2d at 417.
Therefore, it seems that, in West Virginia, only those people who are members of a minority party, or of a group which has not yet become a party, are required to state as part of the nominating process that it is their intention to support a candidate in the general election. Thus, appellants object that their right to cast a secret ballot is violated by the desire-to-vote provision and that they are being denied equal protection of the law under the Fourteenth Amendment.
A. Secret Ballot
For a democracy to function, it is absolutely vital that citizens be free to vote for the candidate they choose. “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 535, 11 L.Ed.2d 481 (1964). Although historically the “viva voce” (with the living mouth) election was common in the United States, in this century most states, including West Virginia, have embraced the secret ballot, either statutorily or constitutionally, as an indispensable means of holding elections free from “violence, intimidation, bribery and other corrupt practices” which so often accompany elections where secrecy is not preserved. Anderson v. Mills, 664 F.2d 600, 608 (6th Cir.1981). See also Taylor v. Bleakley, 55 Kan. 1, 39 P. 1045 (1895). In the recent case of Nabors v. Manglona, 829 F.2d 902 (9th Cir.1987), for example, it was alleged that the defendants had “intimidated, coerced, and bribed numerous voters to obtain their votes,” and that to insure the success of this alleged fraud, had ordered the voters to mark their ballots with secret code names. Id. at 904.
Although there have been no allegations of fraud in the instant case, the secret ballot also acts to protect another vital component of a democratic election: the ability to cast a ballot free from “scorn and ridicule.” Anderson v. Mills, 664 F.2d at 608; Taylor v. Bleakley, 39 P. at 1049. In holding the desire-to-vote provision in Kentucky’s election laws invalid, the Sixth Circuit noted that:
The declaration operates to discourage citizens from participation in the electoral process simply because they do not wish people to know how they will vote. Such a revelation invokes the fears sought to be quelled by the secrecy of voting laws in this country, and subject an elector to the pressure of his neighbors, his employers, and social peers.
664 F.2d at 608-09.
Moreover, we believe that the effect of such a revelation can be substantial, in that it will discourage people from joining unpopular or controversial parties or causes.
West Virginia has enacted a statute, W.Va.Code § 3-1-4, providing that voters in all elections shall have the choice of voting with either an “open, sealed, or secret ballot.” Given the West Virginia Supreme Court of Appeals’ own holding that the act of signing a nominating certificate is analogous to casting a ballot, this court can only conclude that forcing individuals to state that they desire to vote for a candidate before they can sign his nominating certificate is a clear infringement of their right to keep their vote and their political preference secret.
B. Equal Protection
The Constitution of the United States, Article I, § 4, states that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.”
The Supreme Court has said that
the privilege to vote in a state is within the jurisdiction of the state itself, to be exercised as the state may direct, and upon such terms as it may deem proper, provided of course, no discrimination is made between individuals, in violation of the Federal Constitution.
Carrington v. Rash, 380 U.S. 89, 91, 85 S.Ct. 775, 777, 13 L.Ed.2d 675 (1964), quoting Pope v. Williams, 193 U.S. 621, 623, 24 S.Ct. 573, 574, 48 L.Ed. 817 (1903).
In other words, the power of the states to determine the manner of holding elections is limited by the Equal Protection Clause of the Fourteenth Amendment. Since it is very clear that West Virginia is discriminating between those of its citizens who vote in primary elections to choose candidates for major parties, and those who choose to exercise their primary franchise through nominating certificates, the injuries to the appellants must be weighed against the justification offered by the state under the Anderson v. Celebrezze balancing test.
It is obvious that compelling disclosure of a person’s intention to vote can have a substantial effect on the ability of small political groups to compete on the electoral battleground. A small party, already at a disadvantage to the organized battalions of the major parties and large pressure groups, must overcome three distinct hurdles due to the desire-to-vote requirement. First, because most people want to keep their vote secret, many potential subscribers will be reluctant to openly declare their voting preference in a nominating certificate. Second, many people will not have made up their minds early in an election year whom they will vote for in the fall. At the time the nominating certificates are being circulated, then, these people could not honestly say for whom they would like to vote. Furthermore, anyone even remotely connected with politics knows that voters have a right to change their minds and often do so as an election gets closer. Third, some individuals who have made up their minds, and who would ordinarily have no objection to stating their preferences, might be put off by the possible reaction to associating themselves with the more unpopular political groups.
The Sixth Circuit neatly summarized the Equal Protection difficulties of Kentucky’s desire-to-vote requirement:
It is only those electors wishing to sign a petition who must declare their desire to vote for a specific individual. Electors who support other candidates have to make no such public declaration. The chilling effect that such a practice has on associational and voting rights is obvious. The voting citizen must decide whether to sign the petition, having his political preference clearly and unmistakably disclosed, or to refrain from signing. A potential subscriber, who is uncertain about whom he will support in the general election, but with an interest in the candidate will be unable to sign a petition because of the requisite declaration. The impact to the candidate is equally drastic. He is unable to espouse his views because the declaration greatly curtails his ability to appear on the ballot and become widely known. The possibility of having new candidates with unusual and creative political philosophies is greatly reduced. As a result, this requirement fosters a system which favors the status quo, while discouraging independent candidates and new political parties.
664 F.2d at 609.
Against these injuries, the appellees assert only that the provision “is there to protect the voter ... from inadvertently signing his primary nomination vote away.” As stated earlier, we find this justification wholly unpersuasive. The state has already fully accomplished this goal by the requirement that each subscriber be given written and oral notice that he is forfeiting his right to vote in the primary by signing. Even if we assume that the appellees and the district court are correct and the declaration does not mean what it clearly says, the important thing is what the voter thinks. It is not enough to say what some court might interpret the provision to mean; it is the voter’s rights which are being affected, not someone from the judiciary. Just as provisions that subscribers must take loyalty oaths to a party before putting their names on the party’s nominating petitions have been struck down as violations of Equal Protection, Libertarian Party of Nebraska v. Beermann, 598 F.Supp. 57, 64 (D.Neb.1984); Libertarian Party of South Dakota v. Kundert, 579 F.Supp. 735, 739 (D.S.Dak.1984), we conclude that the appellees’ interest in making voters disclose their voting preferences is neither legitimate nor strong, and in fact serves no purpose whatever, except to have a chilling effect on the voter. Therefore, it is a violation of the potential subscribers’ First and Fourteenth Amendment rights.
For all of the above reasons, the judgment of the district court will be affirmed, except insofar as it held to be constitutional that portion of W.Va.Code § 3-5-23(d), which requires persons wishing to sign nominating certificates to state that they “desire to vote” for the candidate therein named.
AFFIRMED IN PART AND REVERSED IN PART.
. Cf. Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), in which the Supreme Court struck down Ohio's elections laws, which in combination made it "virtually impossible for a new political party, even though it ha[d] hundreds of thousands of members, or an old party, which ha[d] a very small number of members, to be placed on the state ballot." Id. at 24, 89 S.Ct. at 7. The Ohio statutory scheme was summarized by Mr. Justice Douglas in a concurring opinion as follows:
Ohio, through an entangling web of election laws, has effectively foreclosed its presidential ballot to all but Republicans and Democrats. It has done so initially by abolishing write-in votes so as to restrict candidacy to names on the ballot; it has eliminated all independent candidates through a requirement that nominees enjoy the endorsement of a political party; it has defined "political party” in such a way as to exclude virtually all but the two major parties.
A candidate who seeks a place on the Ohio presidential ballot must first compile signatures of qualified voters who total at least 15% of those voting in the last gubernatorial election. In this election year, 1968, a candidate would need 433,100 such signatures. Moreover, he must succeed in gathering them long before the general election, since a nominating petition must be filed with the Secretary of State in February. That is not all: having compiled those signatures, the candidate must further show that he has received the nomination of a group which qualifies as a "political party" within the meaning of Ohio law. It is not enough to be an independent candidate for President with wide popular support; one must trace his support to a political party.
To qualify as a party, a group of electors must participate in the state primary, electing one of its members from each county ward or precinct to a county general committee; two of its members from each congressional district to a state central committee; and some of its members as delegates and alternates to a national convention. Moreover, those of its members who seek a place on the primary ballot as candidates for positions as central committeemen and national convention delegates must demonstrate that they did not vote in any other party primary during the preceding four years; and must present petitions of endorsement on their behalf by anywhere from five to 1,000 voters who likewise failed to vote for any other party in the last preceding primary. Thus, to qualify as a third party, a group must first erect elaborate political machinery, and then rest it upon the ranks of those who have proved both unwilling and unable to vote.
Id. at 35-37, 89 S.Ct. at 12-14 (footnotes omitted).
The distinctions between the highly restrictive Ohio scheme and West Virginia’s are far-reaching. Ohio ruled out independent candidacies; West Virginia does not. The requirements for qualifying as a political party, furthermore, were not only onerous but were virtually impossible for a small party to fulfill. The Supreme Court had little difficulty in finding such an electoral scheme unconstitutional. There is nothing about West Virginia’s elections laws that creates such a crushing burden on minor parties.
. "The right of a qualified citizen to vote as he pleases is certainly a fundamental right and is a basic concept in our system of government. Public voting subjected even the most hardy to pressure and also to violence. But it was never thought, or suggested, that public voting violated constitutional rights. The secret ballot does not seem to have appeared in this country until February, 1888, when the newly-devised Australian [ballot] system was adopted for municipal elections in Louisville, Kentucky.” Barsky v. United States, 83 U.S.App.D.C. 127, 167 F.2d 241, 249 n. 28 (1948).
. It has been recognized that in some instances, such as when illiterate or blind voters need assistance in voting, the right to a secret ballot may be waived. See, e.g., United States v. Executive Committee of Democratic Party of Greene County, Alabama, 254 F.Supp. 543, 546 (N.D.Ala.1966).
. The appellees suggest that because the West Virginia Supreme Court in Bailey ruled that the names of subscribers were secret, there is, in effect, no public declaration of voting preference. Although the Bailey court did say that names of subscribers would be available only to persons with a "sufficient interest,” 164 S.E.2d at 418-19, it stopped short of saying that the names would not be available under any circumstances whatever. Furthermore, the dissent stated:
In casting ... a vote in a primary election, not even the election officials know how the voter votes. Any person soliciting signatures for the purpose of nominating a candidate by [petition] of necessity knows exactly whose names are contained thereon. Every signer on every petition after the first one has an opportunity to look at the other names on the petition, the secretary of state and all of his staff of necessity may examine the signatures, as well as every clerk of every county court of this state and all of his staff have the right to examine the signatures that are alleged to be those of residents of the particular county.
Id. at 421 (Browning, J., dissenting).
. This ruling should not inconvenience election officials in West Virginia in 1990 since the only deletion from the petition is the "desire to vote” clause.
Question: What is the number of judges who voted in favor of the disposition favored by the majority?
Answer:
|
songer_two_issues
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine whether there are two issues in the case. By issue we mean the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
UNITED STATES of America, Plaintiff-Appellee, v. Jose Antonio GONZALEZ, Defendant-Appellant.
No. 84-1603.
United States Court of Appeals, Tenth Circuit.
May 24, 1985.
Jack G. Goldberg, New York City, for defendant-appellant.
Mark D. Jarmie, Asst. U.S. Atty., Albuquerque, N.M. (William L. Lutz, U.S. Atty., and Larry Gomez, Asst. U.S. Atty., Albuquerque, N.M., with him on briefs), for plaintiff-appellee.
Before HOLLOWAY, Chief Judge, and LOGAN and SEYMOUR, Circuit Judges.
LOGAN, Circuit Judge.
Defendant Jose Antonio Gonzalez appeals from his conviction after a guilty plea of knowingly and unlawfully possessing, with the intent to distribute, a quantity of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Pursuant to Fed.R.Crim.P. 11, the court permitted defendant to preserve for appeal the denial of his motion to suppress evidence. He contends on appeal that the search of his automobile, which revealed the cocaine, was illegal.
A state patrolman stopped the car defendant was driving in New Mexico on Interstate 40 at 9:00 p.m. in January 1984 for a speeding violation. As the officer approached the vehicle, which contained defendant and a woman passenger, defendant stepped out of the car. The officer noticed an “extremely strong odor of some kind of deodorizer” which he testified at the suppression hearing is often used to mask the odor of narcotics. Defendant gave the officer a valid New York state driver’s license as well as a valid California registration and a valid, though unsigned, California car title document. While defendant waited at the roadside, the officer stopped another car, issued a warning to that driver, and let that car proceed. Defendant, in response to the officer’s questions, stated that he was going to a Holiday Inn in Albuquerque to give the car to the owner. The defendant, however, could not name the car’s owner or tell the officer how to get in touch with that owner.
The officer, who retained the driver’s license, the registration, and the title, asked defendant to follow him to the state police office three to four miles away. The officer testified at the suppression hearing that the purpose of the trip was to verify that the car was not stolen and for their “safety and protection” from oncoming traffic. He also testified that he suspected defendant was engaging in other criminal activity aside from the traffic violation, although he was unable to articulate particular facts — other than the deodorizer smell and the unusual combination of automobile license, registration, and title documents— that might give rise to a finding of probable cause. In the few minutes it took to drive to the state police office, the officer received word on his car radio that there were no warrants outstanding against defendant and that the car had not been reported stolen. At the police office, the officer prepared the speeding citation as well as a consent to search form. After issuing the citation and while retaining the car documents, the officer asked defendant to sign the consent form. Defendant signed the form. The search of the car revealed approximately eighty pounds of cocaine underneath the rear seat and in the side wall panels. Defendant claims that the officer detained him for approximately twenty minutes. Defendant was arrested after the search.
Following a suppression hearing, the district court determined that the stop was proper; that the defendant was not free to leave; that the officer was justified in detaining the defendant and exploring the possibility of a stolen car; and thus, that there were reasonable, articulable grounds for detaining defendant for a reasonable length of time to investigate the ownership of the car. The court also determined that the officer had smelled deodorizer in the car; that deodorizers are often used to mask the scent of narcotics; and that those facts, together with the car documentation, gave the officer articulable reasons to suspect that there were narcotics in the ear and to make him want to search the car. It also found that defendant voluntarily and freely executed the consent to search. Nevertheless, the court specifically declined to find that the officer could have searched the vehicle on the basis of the information he had at the scene of the stop. The following exchange on this subject took place between defense counsel and the court:
“MR. BENAVIDEZ: Is the Court finding that the officer could have searched the vehicle with what he had at the scene of the stop?
THE COURT: I did not say that. MR. BENAVIDEZ: Okay.
THE COURT: I did not say that. I said he had reasonable articulable grounds to detain the Defendant briefly and ask him to come back to Moriarty where they could see whether a consent to search could be obtained and, indeed, was obtained. I say he absolutely had grounds to return him to Moriarty in connection with the traffic — not the traffic violation but the ownership of the car and all of the other circumstances.”
R. IV, 9-10.
Defendant contends on appeal that he was seized in violation of the Fourth Amendment, that his consent to search was the product of an unlawful arrest, and that, therefore, the subsequent seizure of the cocaine was unlawful. He concedes that the initial stop for speeding was lawful and that the limited detention for the purpose of issuing a speeding citation was proper. The government does not contest the court’s finding that after the officer stopped defendant he was not free to leave.
Although we asked for and the parties have provided supplemental briefs on whether the New Mexico state police officer had probable cause at the time of the traffic stop either to arrest defendant or search his car, we are unable to discern sufficient facts here to support such probable cause. Cf. Reid v. Georgia, 448 U.S. 438, 441, 100 S.Ct. 2752, 2754, 65 L.Ed.2d 890 (1980) (per curiam) (suspicion based on circumstances common to many innocent travelers did not support probable cause). We do not consider the proper parameters of a drug courier profile because the police officer here specifically denied that he was using any such profile. Instead, the officer stopped the defendant solely because he was speeding. In the course of his roadside conversation with defendant the officer smelled a deodorizer, which the officer said indicated to him that defendant was committing more than just a traffic violation. But the officer could not articulate facts that gave him a more specific cause for suspicion to justify a search. He just had bad intuitions about this driver, which later proved entirely correct.
Part of the officer’s suspicion arose from the unusual combination of a driver bearing a New York driver’s license, in a car with California plates and registered to a California owner, carrying an unsigned title, and headed for a Holiday Inn in Albuquerque to meet with an unknown owner at an uncertain time. We would unduly hamstring police officers if we told them they must turn their back on such bizarre circumstances. These facts obviously raise a reasonable suspicion that the car might be stolen and they warrant detention of a suspect for a reasonable time while the officer checks the car’s ownership. The police officer had a car radio and contact thereby with dispatchers who had instant access to the National Crime Information Center (NCIC) computer records that could quickly resolve, with reasonable certainty, whether there were warrants outstanding against the driver and whether the car had been reported stolen. The officer here availed himself of these modern techniques and received a negative answer to his queries about the car in less time than it took to drive the three to four miles to the station office. Had the officer remained with defendant on the side of the highway, as is customary in routine traffic stops, he could have issued his speeding ticket and obtained all available information about the suspected car theft in a matter of minutes.
If the officer still had thoughts that defendant had done something else illegal he could have asked defendant for consent to search the car then and there. See Schneckcloth v. Bustamonte, 412 U.S. 218, 228, 232, 93 S.Ct. 2041, 2048, 2050, 36 L.Ed.2d 854 (1973) (consent searches “may result in considerably less inconvenience for the subject of the search,” and they “normally occur on the highway, or in a person’s home or office, and under informal and unstructured conditions.”). Had defendant refused to consent the officer would have been put to the choice of arresting defendant in order to conduct an involuntary search or letting him go. An arrest or search would require facts giving rise to probable cause. We construe the district court’s findings to mean that there was not probable cause for such a search. The government has presented nothing that convinces us this finding was incorrect. Therefore we must confront whether the officer’s request to have defendant accompany him to the police station, and once there whether his request for consent to search defendant’s car, were acceptable as part of a valid Terry stop detention. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
Two recent Supreme Court decisions are dispositive of this question. In United States v. Sharpe, — U.S.-, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985), the Court declined to impose any per se rule for the acceptable length of a Terry stop and instead held that the length of the stop must be reasonable under the circumstances. Id. at-, 105 S.Ct. at 1575. We cannot disagree with the district court’s conclusions here that the length of this officer’s stop was reasonable. Although the police officer equivocated about the time elapsed from the initial stop to the incriminating search, it clearly lasted only a short while.
Nevertheless, as the Court specifically noted in Sharpe, it did not have before it any challenge to the reasonableness of the detaining officer’s conduct other than the length of the detention. — U.S. at-, 105 S.Ct. at 1573. Therefore the Court distinguished, but did not discredit, decisions such as United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), and Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). See Sharpe, — U.S. at-, 105 S.Ct. at 1573.
Consequently, this case is controlled by another Supreme Court decision released the same day as Sharpe: Hayes v. Florida, — U.S. -, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985), which clarifies the holdings of Dunaway, Royer, Place, and an earlier case, Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). Hayes involved a challenge to the reasonableness of a Terry detention in which the police officers convinced a person to accompany them voluntarily to the police station to provide fingerprints. Although the officers in Hayes lacked either a warrant or probable cause, one of them indicated that they would arrest Hayes if he refused to come with them. — U.S. at -, 105 S.Ct. at 1645. Hayes chose not to call their bluff. The officers placed him under arrest at the station once they concluded that his fingerprints matched those of their suspect.
The Supreme Court reversed Hayes’ conviction based on the fingerprint evidence, concluding that the officers’ seizure of Hayes was sufficiently like an arrest to require the traditional threshold of probable cause, which it concluded had not been met. Id. at-, 105 S.Ct. at 1645. The Court distinguished Sharpe as a case that did not involve “the involuntary removal of a suspect from his home to a police station and his detention there for investigative purposes, whether for interrogation or fingerprinting____” Id. at-, 105 S.Ct. at 1645. The Court held that the line between brief detention and full-fledged arrest is crossed when the police “forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes.” Id.
Our case falls directly within Hayes’ ambit. Although the New Mexico police officer did not use physical force to remove defendant from the highway, where defendant had a right to be, he did coerce defendant using means no less forcible than those in Hayes. The officer had defendant’s driver’s license, car registration, and title at the time he “asked” defendant to follow him to the station. As the district court found, defendant had no reasonable choice other than to accompany the officer no matter how polite the officer was in phrasing his request. Thus the officer’s conduct was as coercive as the threat to arrest made in Hayes.
The dissenting opinion would find the officer’s conduct coercing defendant to make the trip to the police office to be reasonable under all of the circumstances. See United States v. Hensley, — U.S. -, -, 105 S.Ct. 675, 680, 83 L.Ed.2d 604 (1985) (balance intrusion on personal security against importance of the governmental interests alleged to justify the intrusion). In so concluding the dissent stresses the compelling governmental interest in detecting illegal drug trafficking, and the lone officer’s predicament at night dealing with two suspects in their car. Although not specifically characterized as such, we think the dissent’s approach is an exigent circumstances argument.
We do not believe that suspicion of drug trafficking — not rising to the level of probable cause to arrest — justifies a different Terry stop standard than that appropriate in any situation in which a suspect may be armed. We empathize with the officer’s dilemma when while working alone at night he stops a suspect — or two suspects — in a car in a remote area and has reasonable suspicion that the car may contain contraband. The officer’s natural desire is to conduct a search of the vehicle in the safe environs of a police station in the presence of other officers. But we do not consider the situation of a lone officer, two suspects, or nighttime, or all three together, as constituting exigent circumstances justifying the forced accompaniment to the police station.
Although the cases eschew any attempt to formulate a bright line rule in this area, Hayes nevertheless declared that “the line is crossed when the police, without probable cause or a warrant, forcibly remove a person from ... [a] place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes.” — U.S. at-, 105 S.Ct. at 1646. Thus, we understand the Hayes decision as eliminating the option of forcing the suspect to go to the police station from the alternatives available to the officer during an investigative detention. Even if Hayes intended no precise line drawing, we believe it at least required consideration of the other alternatives available to the officer at the time of the stop. This officer had reasonable alternatives to the coerced trip to the police station. He could have called for a backup officer; he could have obtained on the spot a voluntary consent to search and a consent to have the suspects drive their car to a safer location on the highway. These and other readily imaginable alternatives would neutralize the adverse factors of darkness, traffic, and being outnumbered.
We recognize that if there is sufficient attenuation between an illegal detention and a consent to search, the search may be valid despite the prior illegal acts of the officer. See United States v. Recalde, 761 F.2d 1448 (10th Cir.1985). Here neither the government nor the court attempted to establish attenuation. At the time the consent to search form was handed to defendant the officer still had not informed him that he was free to leave, and the officer held defendant’s car registration and apparently the title to the vehicle. Under these circumstances we believe the government cannot establish sufficient separation between its illegal coercive acts and the consent to search to take the product of the search, the cocaine, out of the category of fruit of the unlawful detention. See id. at ---; Hayes, — U.S. at-, 105 S.Ct. at 1645.
Therefore, we reverse the district court’s refusal to suppress the cocaine found in the search of the car that defendant was driving.
REVERSED AND REMANDED.
. In New Mexico the officer must notify a violator charged with a minor speeding violation of an option to acknowledge guilt by signing the penalty assessment notice, thereby entitling the violator to pay the predetermined fine by mail within thirty days. N.M.Stat.Ann. §§ 66-8-116, -117, -123. The law, or at least established custom, is that a violator who signs acknowledging guilt and promising to pay by mail is immediately released and not required to go to a state police office.
The New Mexico statutes use the word "arrest” to describe the events that occur when a police officer issues a speeding ticket to a violator. See id. § 66-8-117, -123. Thus, in a technical sense, defendant here was arrested. But, as noted above, the statute defines the narrow scope of this limited purpose arrest and commands that the officer "release [the arrested person] from custody” if he will sign the agreement to appear and accept the citation, unless the offense is one listed in N.M.Stat.Ann. § 66-8-122 that requires an immediate appearance before a magistrate. See id. § 66-8-123(A) & (B). Defendant’s speeding violation was a “penalty assessment misdemeanor” for which such immediate release from custody ordinarily would have been required.
Despite the statute’s use of the words "arrest" and "custody,” when a New Mexico police officer stops a car merely to issue a traffic summons for a minor speeding infraction, we think that for Fourth Amendment purposes that stop is more in the nature of an investigative detention than a traditional arrest. See, e.g., Pennsylvania v. Mimms, 434 U.S. 106, 109-11, 98 S.Ct. 330, 332-34, 54 L.Ed.2d 331 (1977) (per curiam) (analyzing reasonableness of police conduct during a traffic stop for driving with expired license plates in terms of Terry v. Ohio); cf. United States v. LeQuire, 424 F.2d 341, 343-44 (5th Cir.1970) (no Miranda warning need be given to person during routine stop for speeding). In Dunaway v. New York, 442 U.S. 200, 209, 99 S.Ct. 2248, 2254, 60 L.Ed.2d 824 (1979), the Court explained how a Terry stop-and-frisk is a specially limited, sui generis intrusion into a person’s Fourth Amendment rights as compared with a traditional arrest.
Thejdistinction matters here because the label used for constitutional purposes defines the scope of reasonable police conduct incident to such a stop. If such a traffic stop were like a traditional custodial arrest, then as part of the search incident to arrest the apprehending officer could search the entire passenger compartment, see New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981). But if, as we conclude here, the traffic stop only amounts to an investigative detention, the officer's freedom to search is more limited; his motivation for the search must be related to concern for protecting himself or others rather than any concern with preserving evidence. See Michigan v. Long, 463 U.S. 1032, 1049 & n. 14, 103 S.Ct. 3469, 3480 & n. 14, 77 L.Ed.2d 1201 (1983). The government has not argued that such a protective search, conducted at the scene of the original detention, would have revealed the contraband found in the car defendant was using.
. The arresting officer testified that in nine previous cases he had smelled deodorizer in automobiles and in all of them he had found drugs. But he did not testify that the smell of deodorizer was an unequivocal signal that led him to believe this car carried drugs. The exchange at this point was as follows:
"Q. [Defense counsel] Well, sir, you were there. I’m asking you now, when you pulled that car over, you got that whiff, as you say, of deodorizer, is that when you — Did you then say to yourself obviously, ‘I may have one here’?
A. [Officer Toler] I’m not saying whether I did or whether I didn’t. It was just an awful strong smell. The thought occurred to me there might be something.
Q. And sitting here right now, are you telling us now, you remember that the thought did occur to you out there on that highway?
A. That there might be something in the vehicle. (Witness nods head affirmatively.)
Q. Well, when you say ‘something,’ you’re talking about drugs.
A. I said something.
Q. Well, did you believe, sir, that there might be something in the vehicle or there might be narcotic drugs in the vehicle?
A. There might be something illegal in the vehicle.
Q. Sir, did you believe there might be something illegal like cigarettes or narcotic drugs? It’s a simple question.
A. I just told you, the only thing that went through my mind was that there might be something illegal in the car, and that’s what you’re asking me, and that’s the thought that went through my head.”
R. Ill, 37-38.
. The trial judge, justifying his ruling that the officer’s actions were lawful, stressed the “problems on the side of a very busy interstate freeway.” R. IV, 8-9. But as the dissent notes, the officer testified that the highway traffic was extremely light that night.
. In Hayes, the Court ignored United. States v. Hensley's balancing test in favor of prior precedents: "None of our later cases have undercut the holding in Davis that transportation to and investigative detention at the station house without probable cause or judicial authorization together violate the Fourth Amendment." — U.S. at-, 105 S.Ct. at 1646. The Court specifically stated that Hensley and Sharpe do not conflict with this principle. See id. The only exception to this rule that the Court foresaw was the possible existence of exigent circumstances. See Hayes, — U.S. at-n. 3, 105 S.Ct. at 1647 n. 3.
. "Exigent circumstances" generally refers to a quite different level of circumstances: imminent danger of death or serious bodily harm, imminent danger of destruction of important property, response to an emergency, or hot pursuit of a fleeing felon. See United States v. Dart, 747 F.2d 263, 267 (4th Cir.1984); United States v. Tabor, 722 F.2d 596, 598 (10th Cir.1983); 2 W. LaFave, Search & Seizure § 6.5 (1978 & Supp.1985).
Although the stop was at night and the officer testified that he required the trip to the state police office for "their safety and protection" from oncoming traffic, we believe that neither the officer nor the trial court made any attempt to justify the action on an exigent circumstances basis.
Question: Are there two issues in the case?
A. no
B. yes
Answer:
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songer_respond1_3_2
|
I
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
UNITED STATES of America, Plaintiff-Appellee, v. Ronald J. SMITH, James J. Marren, and Gerald T. Louison, Defendants-Appellants.
Nos. 91-2297, 91-2563 and 91-3143.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 29, 1992.
Decided May 3, 1993.
Rehearing and Suggestion for Rehearing En Banc Denied July 12, 1993.
Frederick J. Hess, U.S. Atty., Robert T. Coleman, Asst. U.S. Atty., Office of the U.S. Atty., Fairview Heights, IL, and Michael C. Carr, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Benton, IL, for the U.S.
Joseph Saint-Veltri (argued), Denver, CO, for Ronald J. Smith.
Lynn A. Hirschfeld (argued), Chicago, IL, for James J. Marren.
John Speroni (argued), Marion, IL, for Gerald T. Louison.
Before RIPPLE and KANNE, Circuit Judges,' and LEINENWEBER, District Judge.
The Honorable Harry D. Leinenweber, District Judge for the Northern District of Illinois, is sitting by designation.
KANNE, Circuit Judge.
This case requires us to revisit the Lanier/Kramer drug ring which has kept this court busy with numerous appeals over the past few years. For the sake of brevity, we will set forth only a general overview of the drug ring’s operations and relate specific facts pertinent to each defendant’s appeal as necessary.
Randy Lanier and Benjamin Kramer were partners in the marijuana importation business.' Initially, the two men imported small amounts of marijuana, about 15,000 pounds, on small boats. However, as time progressed, the men were responsible for importing barge loads of marijuana, each containing approximately 150,000 pounds. From 1982 to 1986, there were seven episodes of marijuana smuggling planned and executed by Lanier and Kramer.
As with any commercial product, Lanier and Kramer had to devise ways of marketing and' distributing the marijuana and secure people to help them implement these plans. To facilitate the distribution of such large amounts of marijuana, Lanier and Kramer utilized “major customers” in various cities throughout the United States. During the relevant time frame, Lanier and Kramer had three “major customers”: Ron Ball, Chris Holdorf, and the partnership of Jeff Tuch-band and David Tobias. Each of these customers, in turn, had primary customers of their own. After a shipment of marijuana arrived in this country, the three “major customers” were responsible for coming to the barge location, picking up their share of the marijuana and transporting it to stash houses in their area.
After extensive police work, the Lanier/Kramer organization was put out of business. A large number of individuals throughout the country were indicted as members of the Lanier/Kramer marijuana importation and distribution conspiracy. Several of these individuals were convicted, convictions we upheld on appeal. This case requires us to address three more convictions arising from the Lanier/Kramer conspiracy, those of James Marren, Ronald Smith and Gerald Louison. Unpersuaded by the defendants’ arguments, we affirm both their convictions and their sentences.
Procedural History
On September 29,1987, Marren was indicted, along with twenty other defendants, for conspiracy to distribute marijuana. The indictment alleged that the conspiracy ran from March 1980 through June 1987. Mar-ren proceeded to trial on November 15, 1988 with five codefendants. On November 29, 1988, after Marren’s counsel’s opening statement, the government moved to disqualify Marren’s attorney, Stephen Finta. Following' a hearing, the trial court concluded that Finta might have been involved in the drug conspiracy and disqualified him. That same day, the court declared a mistrial as to Mar-ren.
On March 2, 1989, Marren was charged with conspiracy in a superseding indictment. Marren filed a motion to dismiss based on double jeopardy, which was denied. On May 31, 1990, a grand jury.issued another superseding indictment charging Marren, Smith and Louison (and eleven others) with conspiracy to knowingly and intentionally distribute more than 1,000 pounds of marijuana from in or about January 1978 to June 1987 in violation of 21 U.S.C. §§ 841(a)(1) and 846.
A joint trial began on December 3, 1990. All three defendants repeatedly filed motions for severance which were denied... On January 10, 1991, all three defendants were convicted. On appeal, the defendants claim several errors require reversal of their convictions or, at least, resentencing. We address each in turn.
Variance/Sufficiency of the Evidence
According to the defendants, the government’s evidence at trial did not prove the existence of the single conspiracy alleged in the indictment, but rather proved, if anything, the existence of multiple conspiracies. The defendants claim that this alleged variance substantially prejudiced them. The challenge the defendants present is an all too familiar one for which we have several clearly established legal principles to guide our inquiry.
A conspiracy exists when two or moré individuals agree to join together to commit an illegal act. United States v. Curry, 977 F.2d 1042, 1053 (7th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1357, 122 L.Ed.2d 737 (1993). “The crime of conspiracy focuses on agreements, not groups.” United States v. Townsend, 924 F.2d 1385, 1389 (7th Cir.1991). Thus, the government need prove only that the defendant knew of the agreement and intended to join it; the • government need not prove specifically with whom the defendant conspired or that he even knew the other conspirators. Id. Furthermore, a conspiracy conviction may be based solely on circumstantial evidence. Curry, 977 F.2d at 1053.
The defendants’ variance claim is really “a challenge to the sufficiency ■ of the evidence supporting the jury’s finding that each defendant was a' member of the same conspiracy.” Townsend, 924 F.2d at 1389. The difference between a single conspiracy and multiple conspiracies has been defined by this court. “If there is one overall agreement among various partners to perform different functions- in order to carry out the objectives of the conspiracy, the agreement constitutes a single conspiracy.” United States v. Gonzalez, 933 F.2d 417, 437 (7th Cir.1991). In contrast, if each of the conspirators’ agreements has its own end or is an end itself, then multiple conspiracies exist. United, States: v. Paiz, 905 F.2d 1014,.1020 (7th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 1319, 113 L.Ed.2d 252 (1991).
The question of whether there is one conspiracy or several is a question of fact for the jury. Id. at 1019. Thus we will uphold a conviction if, when viewing the evidence in the light most favorable to the government, “a reasonable trier of fact could have found beyond a reasonable doubt the existence of the single conspiracy charged in the indictment.” Townsend, 924 F.2d at 1389. This is so even if the evidence at trial was also consistent with a finding that multiple conspiracies existed. Id. In addition, the scope of our review does not permit us to reweigh the evidence or make independent witness credibility determinations. United States v. Maholias, 985 F.2d 869, 874 (7th Cir.1993).
The defendants contend the following: (1) Marren admits to distributing marijuana during the time mentioned in the indictment but claims that he conspired with others — not any members of the Lanier/Kramer group; (2) Smith admits to drug activity in conjunction with Tuchband and Tobias, but claims he failed to join in the “larger conspiracy”; and (3) Louison denies knowingly joining any drug conspiracy, maintaining that he was not aware that marijuana was present in the trucks he drove.
After reviewing the evidence in the light most favorable to the government, we conclude that sufficient evidence exists to convict each defendant of having joined a single conspiracy to distribute Lanier/Kramer marijuana.
James Marren
During the mid to late 1970s, James Mar-ren and Michael Canino were partners distributing marijuana in Philadelphia. The Marren/Canino partnership obtained marijuana from various sources. In 1976 or 1977, the two men began obtaining marijuana from Ron Ball, a “major customer” of his brother-in-law, Randy Lanier. At some point, Mar-ren moved to Florida to obtain marijuana more easily; Canino remained in Philadelphia to service their customers. Originally, Marren along with Ball and Jim Blair worked to supply Canino with marijuana. However, in 1980, Ball became convinced that Marren was creating too much exposure for the group by his open discussion of drug deals and by obtaining marijuana from other sources. As a result, a deal was struck whereby Ball could sell marijuana directly to Canino. From then on, Marren was no longer actively involved in the distribution of Lanier marijuana but received a cut of the profit each time Ball made a delivery to Canino. According to several trial witnesses, Marren received commission payments, primarily from Canino, on approximately 150,-000 pounds of marijuana over the next several years. Meanwhile, Marren also procured marijuana from other sources and supplied it to Canino.
Marren argues that this evidence proves only that he was involved in a separate and distinct conspiracy, presumably with Ball, Blair and Canino, prior to 1982. Marren does not dispute that a Lanier/Kramer drug conspiracy existed. Rather, he contends that the evidence did not show that he joined that conspiracy. We disagree. Marren introduced Ball, Lanier’s brother-in-law and “major customer,” to Canino to further the conspiracy’s goal of distributing Lanier/Kramer marijuana. See United States v. Percival, 756 F.2d 600, 607 (7th Cir.1985) (introduction of drug coconspirators can show intent to join conspiracy). In addition, numerous witnesses testified that once Marren ended his day-to-day participation, he still was aware of the Lanier/Kramer operation’s shipments and received $5 for each pound of Lanier/Kramer marijuana sold to Canino by Ball.
We believe that this circumstantial evidence was enough from which the jury could infer that Marren knew of the Lanier/Kramer conspiracy and intended to join it. See Townsend, 924 F.2d at 1390 (the key question is “whether the jury may reasonably infer a single agreement among the defendants from the evidence... presented by the government”); United States v. Penson, 896 F.2d 1087, 1094 (7th Cir.1990) (government need only show that defendant knew purpose of conspiracy and intended to join it).
Marren also argues that “the government improperly alleged a single conspiracy in this case to take advantage of some of the procedural expediencies referred to by the Townsend Court.” Having already concluded that a single conspiracy was proven, we can only conclude that it was properly alleged. Mar-ren attributes further improprieties to the prosecutor which are not supported by the record and do not merit discussion here.
Ronald Smith
In 1983, Ron Smith, who owned tractor-trailer trucks, was hired by Tuchband and Tobias, Lanier’s “major customers,” to retrieve their share of Lanier/Kramer marijuana from a barge in New York and deliver it to their stash houses. Smith coordinated different truckers’ efforts and completed the task.
In 1984, 1985 and 1986, Smith again coordinated the unloading and truck delivery of barges, of Lanier/Kramer marijuana for Tuchband and Tobias. In addition, Smith also carried drug money back to members of the Lanier/Kramer organization. Smith was paid five to seven dollars for each pound of marijuana hauled — amounts totalling hundreds of thousands of dollars.
Smith concedes that this evidence is sufficient to show that he conspired with Tuch-band and Tobias to distribute marijuana, but argues that it is insufficient to prove that he knowingly joined the larger Lanier/Kramer conspiracy. Under Townsend and its progeny, Smith’s argument must fail. We have repeatedly held that a defendant is part of a conspiracy if mutual dependence or mutual support is shown. Townsend, 924 F.2d at 1392. Moreover, if a conspiracy has “a small group of core conspirators, other parties who knowingly participate with these core conspirators and others to achieve a common goal may be members of an overall conspiracy.” United States v. Mealy, 851 F.2d 890, 896 (7th Cir.1988).
We have no trouble concluding that the evidence demonstrated that Smith knowingly joined others, including but not limited to Tuchband and Tobias, in a single conspiracy to distribute Lanier/Kramer marijuana. From 1983 to 1986, every time a barge of Lanier marijuana arrived in this country, Smith played an active role in ensuring that it got from the port to the area where the “major customers” could distribute it. As mentioned, Lanier and Kramer’s “major customers” were responsible for picking up their share of marijuana when it arrived.' It is hard to conceive of a drug distribution set-up where mutual dependence and support is more apparent. Lanier and Kramer used their connections outside of the United States to obtain marijuana and relied on their “major customers” and their employees to transport it to the market.
Trial testimony revealed that Smith not only was responsible for the transportation of hundreds of thousands of pounds of Lanier/Kramer marijuana, but also acted as a money courier for the Lanier/Kramer group. It is apparent from the record that Smith knew not only whose marijuana he was trucking but also the amounts of marijuana involved. Smith was present at four major shipments and helped Lanier/Kramer representatives unload the barges of marijuana. “[I]f the evidence indicates that a defendant must have known that his actions were bene-fitting a larger conspiracy, he may be said to have joined the conspiracy.” Townsend, 924 F.2d at 1390. The jury had ample evidence to support its conclusion that Smith had knowingly joined a single conspiracy to distribute Lanier/Kramer marijuana.
Gerald Louison
In 1983, Tuchband and Tobias were concerned that they may need more than Ron Smith’s trucks to pick up their share of Lanier/Kramer marijuana. Upon a recommendation from a coconspirator, Eugene Walters, they hired Harley Surratt. Surratt, a trucker who had hauled marijuana in the past, and his brother-in-law, Gerald Louison, helped load boxes of lettuce onto other truckers’ tractor-trailers to cover the marijuana, but did not haul any marijuana because the extra trucks were ultimately not necessary. Sur-ratt was paid for making the trucks available to Tuchband and Tobias. Surratt and Loui-son were able to participate more actively in 1985 and 1986. In each of those years, Loui-son drove a truckload of marijuana from the barge site to a Lanier/Kramer stash house.
At trial and on appeal, Louison claims that he was unaware that he was hauling marijuana and thus he could not have knowingly joined any conspiracy to distribute marijuana, including the Lanier/Kramer conspiracy. We conclude the evidence supports a contrary view — the one the jury embraced when it convicted Louison. As mentioned, witnesses testified that Louison was present at the arrival of three shipments of Lanier/Kramer marijuana and ended up trucking over 65,000 pounds of it across the United States. More than one witness testified that Louison not only loaded trucks but participated in conversations with other marijuana truckers about how best to avoid agricultural road stops. In addition, the record reveals that Lanier/Kramer representatives were present at the barge sites and a representative generally accompanied each truck from the barge to the stash houses.
Almost identical testimony was presented against Surratt at his trial. Penson, 896 F.2d at 1093-94. In upholding Surratt’s conspiracy conviction, we concluded:
Surratt now asks this Court to believe that he could not recognize marijuana by sight or smell, and in addition that he found nothing unusual about covering an enormous load of unknown material with lettuce. Based on the evidence adduced at trial, it would have been irrational for the jury to have found that Surratt was ignorant of what was going on around him.
Id. We fail to see how the evidence presented against Louison is distinguishable.. Furthermore, once the jury concluded that Loui-son had knowingly transported Lanier/Kramer marijuana, it was permissible for it to conclude that he had joined the single conspiracy to distribute.. See Townsend, 924 F.2d at 1390 (jury is permitted to infer that á defendant joined a single conspiracy from circumstantial evidence produced at trial). Like Smith, Louison cannot claim he was unaware of the scope of the conspiracy. He participated in three barge shipments which contained well over the 1,000 pounds of marijuana alleged in the indictment. Thus, the evidence supports the jury’s finding that Louison knowingly joined the Lanier/Kramer conspiracy.
We hold that each defendant has failed to demonstrate that a variance existed between the conspiracy alleged in the indictment and the evidence presented at trial.
Multiple Conspiracy Instruction
At trial, the following multiple conspiracy instruction was given to the jury:
You may judge the defendants only on the charges alleged in the indictment. You may not convict them of any other alleged conspiracy in the event you should conclude that they have engaged in some other conspiracy. Therefore, if you are not convinced beyond a reasonable doubt that a particular defendant knowingly and intentionally joined the conspiracy alleged in the indictment, you must find the defendant not guilty.
Even if you find that a particular defendant knowingly and intentionally joined a conspiracy other than that alleged in the indictment, you should nevertheless, find that defendant guilty of the charge alleged in the indictment if'you are convinced beyond a reasonable doubt that the defendant knowingly and intentionally joined the single overall conspiracy that is alleged in the indictment and the elements of which are otherwise contained in these instructions.
The defendants argue that the district court' erred in giving this instruction for two reasons: • (1) the instruction prevented them from presenting their mtdtiple conspiracy theory to the jury; and (2) the instruction did not treat the issue fairly and accurately, but instead served only to confuse the jury.
When faced with a challenge to a jury instruction, we examine whether the instructions as a whole treated the issues in the ease fairly and accurately. United States v. McNeese, 901 F.2d 585, 607 (7th Cir.1990). As long as jury instructions treat issues fairly and adequately, we will not disturb them on appeal. United States v. Simone, 931 F.2d 1186, 1193 (7th Cir.1991). Further, we grant substantial discretion to the trial court concerning the specific wording of instructions. Penson, 896 F.2d at 1090.
Defendants are entitled to have their theories of defense presented to the jury, but are not entitled to the particular wording of their requested instructions. United States v. Boucher, 796 F.2d 972, 976 (7th Cir.1986). “[T]he [trial] court need not give a proposed instruction if the essential points are covered by those given.” Penson, 896 F.2d at 1090 (citing United States v. Xheka, 704 F.2d 974, 987 (7th Cir.), cert. denied, 464 U.S. 993, 104 S.Ct. 486, 78 L.Ed.2d 682 (1983)). According to the defendants, the foregoing instruction did not present their multiple conspiracy theory of defense to the jury. This argument is without merit. Read as a whole, the instruction stresses that the defendants may only be convicted for the conspiracy described in the indictment. See Canino, 949 F.2d at 940-41 (using a plain error analysis, the court concluded that an identical instruction properly conveyed the defendants’ theory of defense); United States v. Lyons, 670 F.2d 77, 79 (7th Cir.) (identical instruction held, proper), cert. denied, 457 U.S. 1136, 102 S.Ct. 2965, 73 L.Edüd 1354 (1982).
Defendants also claim that the instruction confused the jury. At trial, the defendants did not object to the first paragraph of the foregoing instruction, which in fact was their proposed instruction on this issue. Rather, the defendants claim that the government insisted on adding the second paragraph in order to confuse the jury. We fail to see how the second paragraph could confuse the jury; it merely clarifies that although a defendant may have been a member of a different conspiracy, he may still be convicted if the jury finds he was also a member of the conspiracy for which he was indicted. This clarification may have been particularly helpful to the jury in this case, where the defendants were claiming to be members of different conspiracies. We repeat our conclusion in Canino: the “instruction was clear and in conformance with the law of this case.” 949 F.2d at 941. See also Lyons, 670 F.2d at 79 (concluding that the second paragraph appropriately reinforces the first paragraph).
Severance
The defendants argue that the trial court erred in denying their repeated motions for severance. We are unpersuaded. We begin with the presumption that coconspirators who are indicted together are appropriately tried together. United States v. Caliendo, 910 F.2d 429, 437 (7th Cir.1990). Moreover, because'the decision to grant severance' is soundly within the trial judge’s discretion, we will only reverse if the defendant shows “‘actual prejudice’ — that is, the defendant must show [ ]he could not possibly have a fair trial without a severance.” Id.
Actual prejudice may arise if there is a massive and complex amount of evidence that makes it almost impossible for the jury to separate evidence as to each defendant, or if there is a gross disparity of evidence between the defendants. United States v. Oglesby, 764 F.2d 1273, 1276 (7th Cir.1985). The defendants seem to claim that both of these.situations existed in this case. More specifically, the defendants claim that they were prejudiced by a joint trial since the jury was bombarded with a large amount of evidence regarding the Lanier/Kramer conspiracy which was unrelated to them. Thus, the defendants conclude that they were convicted because evidence that would have been excluded in separate trials was presented during their joint trial.
Although it is true that the government presented a large amount of evidence regarding the Lanier/Kramer conspiracy during the trial, we do not believe that this deprived the defendants of a fair trial. Much of the government’s evidence was necessary to explain the operations of the Lanier/Kramer group and the defendants’ roles within the group, and much of it would have been permissible at separate trials. Moreover, the key question is whether the jury could follow limiting instructions and keep the evidence against each defendant separate. United States v. Peters, 791 F.2d 1270, 1302 (7th Cir.), cert. denied, 479 U.S. 847, 107 S.Ct. 168, 93 L.Ed.2d 106 (1986). The trial judge gave repeated limiting instructions throughout the trial as well as during the jury charge. We presume that the jury was capable of following the limiting instructions given throughout the trial and reached separate conclusions regarding each' defendant. See United States v. Briscoe, 896 F.2d 1476, 1517 (7th Cir.), cert. denied, 498 U.S. 863, 111 S.Ct. 173, 112 L.Ed.2d 137 (1990).
The defendants have given us no reason to question the jury’s capacity; this ease is not that complicated and the disparity of evidence between defendants is minor. In Bris-coe, we held that a drug courier was properly tried with fourteen others in a heroin conspiracy case. Id. at 1483. In light of that holding, we cannot conclude that those responsible for trucking thousands of pounds of marijuana, Louison and Smith, cannot be jointly tried with one who collected profits on thousands of pounds of marijuana, Marren. Because the defendants have failed to show that they were actually prejudiced by a joint trial, we hold that the district court did not abuse its discretion in denying their severance motions.
Evidence Admitted Under Federal Rule mo>)
Both Marren and Louison argue that their convictions must be reversed because the trial court improperly admitted evidence of prior bad acts in violation of Fed.R.Evid. 404(b). Our review of the district court’s evidentiary rulings is limited to whether the trial court abused its discretion. United States v. Torres, 977 F.2d 321, 325 (7th Cir.1992); United States v. Lennartz, 948 F.2d 363, 366 (7th Cir.1991).
We apply a four-part test and admit Rule 404(b) evidence if:
(1) the evidence is directed toward establishing a matter in issue other than the defendant’s propensity to commit the crime chárged, (2) the evidence shows that the other act is similar énough in time to be relevant to the matter in issue, (3) the evidence is sufficient to support a jury finding that the defendant committed the similar act, and (4) the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.
Penson, 896 F.2d at 1091. Applying this test to the evidence to which Louison and Marren object, we conclude that the trial court did not abuse its discretion by admitting prior conduct evidence.
Louison
At trial, Eugene Walters testified that Louison hauled a truckload of marijuana for him in 1982 from Louisiana to Colorado. Louison argues that this testimony does not meet any prong of our four-part, test. We disagree.
Throughout trial, Louison claimed he was unaware that he had hauled marijuana and thus lacked the specific intent needed to commit the crime of conspiracy. See United States v. Liefer, 778 F.2d 1236 (7th Cir.1985) (proof of conspiracy to distribute drugs requires a showing of specific intent); Fed. R.Evid. 404(b) (evidence of other wrongs or acts admissible to show proof of intent and knowledge). When a defendant is charged with a specific intent crime, the government may present other acts evidence to prove intent. Liefer, 778 F.2d at 1243 (court properly admitted evidence that defendant had “picked up” a previous load of marijuana in a case where the defendant denied ever possessing the marijuana alleged in the conspiracy charge). Therefore, because Walter’s testimony was used to establish Louison’s knowledge and intent to distribute marijuana and not his propensity to distribute, the first prong of our test is satisfied.
Walter’s testimony also meets the second requirement of the test in that the prior act is similar enough and close enough in time to be relevant to the matter at issue. In both instances, Louison was involved with Surratt in hauling tractor-trailer loads of marijuana. Moreover, only two years separated the prior act and the charged acts. See Kramer, 955 F.2d at 491 (prior act within two years of charged act satisfied 404(b)); United States v. O’Brien, 618 F.2d 1234, 1238 (7th Cir.), cert. denied, 449 U.S. 858, 101 S.Ct. 157, 66 L.Ed.2d 73 (1980) (testimony concerning pri- or act two years earlier admissible under 404(b)).
As to the third prong, Louison strenuously argues that Walter’s testimony is insufficient evidence to support a jury finding that Loui-son hauled marijuana in 1982. Our previous comments on this prong of the test are instructive:
[this prong] is designed to prevent the jury from exposure to or consideration of evidence that establishes the defendant’s participation in the prior crime only by highly circumstantial inferences.
United States v. Chaimson, 760 F.2d 798,807 (7th Cir.1985) (decided when prong required clear and convincing evidence).
In Chaimson, we héld.that direct testimony of a defendant’s participation in the prior crime was sufficient to satisfy the now discarded clear and convincing test. Id. at 807-OS. Hence, under the current standard, we must conclude that uncorroborated direct testimony of an accomplice is sufficient to support a jury’s finding unless it is incredible on its face or otherwise insubstantial. See also United States v. Butler, 792 F.2d 1528 (11th Cir.), cert. denied, 479 U.S. 933, 107 S.Ct. 407, 93 L.Ed.2d 359 (1986).
According to Louison, Walter’s testimony was incredible, in part because he did not identify Louison in his initial interview with the FBI and, in part because he was motivated to incriminate Louison in order to receive a more lenient punishment under his plea agreement: We disagree. Walter testified to events which quite possibly occurred and he could have physically observed; his testimony was not incredible as a matter of law. See United States v. Van Wyhe, 965 F.2d 528, 531 (7th Cir.1992). Walter’s motives for testifying and his allegedly faulty memory were topics on cross-examination which defense counsel thoroughly explored. We believe Walter’s testimony meets this prong.
The final element of the test is also met. Walter’s testimony was probative on the issue of whether Louison intended to distribute marijuana. “[T]he more probative the evidence, the more the court will tolerate some risk of prejudice....” Torres, 977 F.2d at 328. While the testimony created some risk of prejudice, this risk did not outweigh the testimony’s particularly probative value. In addition, any prejudice to Louison was not unfair and was limited by the following jury instruction given at the close of trial:
You have heard evidence of acts of each of the defendants other than those charged in the indictment. You may consider this evidence only on the question of that defendant’s knowledge and intent. This evidence is to be considered by you only for this limited purpose.
See United States v. Maholias, 985 F.2d at 879-80; Torres, 977 F.2d at 329.
Louison also complains that the court should not have admitted testimony regarding monetary transactions he conducted with Harley Surratt, Patricia Wilbur, and Norman Louison. The government presented this testimony in order to show that Louison had received a large amount of money for his illegal activities and had tried to conceal its source through a series of complicated transactions. Louison argues that this evidence does not meet Rule 404(b)’s requirements.
Federal Rule of Evidence 103(a)(1) requires that a timely specific objection be made to preserve an issue for review. United States v. Field, 875 F.2d 130, 134 (7th Cir.1989). At trial, Louison’s counsel objected to this evidence based on relevancy grounds, not 404(b) grounds. Because Louison did not properly raise a 404(b) objection at trial, he is precluded from raising this issue on appeal absent a showing of plain error. Id. We find no plain error here. Louison has failed to demonstrate that but for the admission of this transactional evidence he would have been acquitted. See id. at 135. There was ample evidence that Louison joined the conspiracy, absent this testimony. Consequently, we can only conclude that the jury still would have convicted Louison even if it were unaware that Louison actively tried to conceal his drug profit money.
Further, we hold that this evidence was admissible under Federal Rules of Evidence 401 and 402. Evidence is relevant if it tends to make any fact at issue more or less probable. Fed.R.Evid. 401. Because concealing the source of drug money goes hand and hand with a conspiracy to distribute marijuana, evidence of a defendant’s attempts to “launder” money is relevant, and thus admissible to prove the conspiracy. See United States v. Towers, 775 F.2d 184, 187 (7th Cir.1985).
We concluded the following in Towers:
[W]here a defendant is on trial for a crime in which pecuniary gain is the usual motive for or natural result of its perpetration and there is other evidence of his guilt, evidence of the sudden acquisition or expenditure of large sums of money by the defendant, at or after the time of the commission of the alleged offense, is admissible to demonstrate the defendant’s illegal obtention of those funds.
775 F.2d at 187-88 (emphasis added). Because the defendant’s objection to evidence of the monetary transactions goes to the issue of weight, not admissibility, we hold that the trial court did not abuse its discretion by admitting such evidence. See id. at 188.
Marren "
Marren contends that the trial court erred in permitting various witnesses to testify that- he was involved in importing and • attempting to distribute a “Jamaican load” of marijuana. Marren argues that the testimony fails to show either his intent or a common scheme because the evidence showed that he was an investor in the “Jamaican load,” whereas he was “solely a broker” in the charged conspiracy. This argument is without merit. The fact that Marren’s specific role in the two different conspiracies varied in no way detracts from the fact that the testimony showed that Marren intended to make money from trafficking in marijuana.
The second prong is satisfied because the bad acts, were not only identical, but the “Jamaican load” occurred in 1984 — during the time frame of the conspiracy alleged in the indictment. The third part of the test is satisfied in that several witnesses testified about Marren’s participation in the “Jamaican load.” As we concluded above, as long as direct testimony on the issue is not incredible, the third prong is met. See Chaimson, 760 F.2d at 807-08. None of the testimony presented was incredible or otherwise insubstantial.
Finally, we believe that the probative value of evidence concerning the “Jamaican load” was not outweighed by a danger of unfair prejudice. The “Jamaican load” testimony was probative on two key trial issues: the relationship between the coconspirators, and how the testifying witnesses were aware that Marren was receiving profit payments from Canino as well as the flow of those payments. In addition, the danger of unfair prejudice was reduced by the limiting instruction set out above. Torres, 977 F.2d at 329. Therefore, we hold the trial court did not abuse its discretion in admitting evidence of Marren’s involvement in the 1984 “Jamaican load.”
“Ostrich” and “Mere Presence” Instructions
Louison argues that the trial court erred in giving the jury a conscious avoidance or “ostrich” instruction because there was no evidence that he consciously- avoided knowing that he carried marijuana. According - to Louison, the evidence showed that he either - knew he was involved in a conspiracy or he did not know, making an “ostrich” instruction, inappropriate. Alternatively, Louison contends that once the “ostrich” instruction was given, the court erred in not giving one of his two proposed “mere presence” instructions. After reviewing the record, we conclude that the trial court did. not err because the instructions given fairly and accurately framed the issues for the jury.
The conscious avoidance instruction was properly given if Louison claimed that he lacked guilty knowledge and if the facts and evidence support an inference that Louison deliberately avoided such knowledge. See Lennartz, 948 F.2d at 369. On appeal, we view the facts and evidence in the light most favorable to the government and reverse only if the trial court abused its discretion. Caliendo, 910 F.2d at 433-34. “In addition, we do not review instructions in lonely isolation, but rather in the context of the trial as an integrated whole
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer:
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songer_crmproc1
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29
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of criminal procedure in the headnotes to this case. Answer "0" if no federal rules of criminal procedure are cited. For ties, code the first rule cited.
UNITED STATES v. BOZZA.
No. 9013.
Circuit Court of Appeals, Third Circuit
Argued March 7, 1946.
Decided May 17, 1946.
Harold Simandl, of Newark, N. J., for appellant.
Charles J. Tyne, of Newark, N. J. (Edgar H. Rossbach, U. S. Atty., of Newark, N. J., on the brief), for appellee.
Before BIGGS, GOODRICH, and O’CONNELL, Circuit Judges.
O’CONNELL, Circuit Judge.
Bozza and one Nicholas Chirichillo were tried and convicted under' an indictment containing five counts charging offenses against the revenues of the United States. From judgment and sentence of the District Court for the District of New Jersey, Bozza appeals.
In a midnight raid on a dilapidated farmhouse at Woodbridge, New Jersey, state police officials discovered an illicit still, set up but not cooking. Though barren of normal house furnishings, the apparently deserted structure contained the usual paraphernalia essential to an illicit still enterprise. In addition to the distillation plant, the officials found bags of sugar, 600 gallons of fermenting sugar mash, and 2% gallons of alcohol which were in the receiving tank.
From the government’s case, it is fairly apparent that Chirichillo was the dominant member of the group which carried on the illicit enterprise. He leased the house. He brought raw materials there. With the help of Bozza and one other he operated the still. And, finally, Chirichillo transported the finished product, alcohol, to Newark for disposition there.
Because appellant challenges the sufficiency of the proof to sustain conviction on any count, the charges against him and the evidence in support thereof will be summarized.
The first count charges Bozza, Chirichillo, Ellen Vettor, and Peter Milito with the unlawful carrying on of the business of a distiller and the making and distilling of 2% proof gallons of spirits with intent to defraud the United States of the tax thereon. The second count charges the same parties with unlawfully having in their possession and custody and under their control a still set up for the unlawful production of distilled spirits for beverage and commercial purposes, which they failed to register as required by law. The third count charges them with unlawfully making and fermenting 600 gallons of mash intended for distillation and production of spirits in a building not duly authorized as a distillery. The fourth count charges them with the unlawful concealment of 2% gallons of distilled spirits with intent to defraud the United States of the tax thereon. The fifth count charges Bozza and Chirichillo with the unlawful transportation of 35 gallons of distilled spirits with intent to defraud the United States of the tax thereon.
To sustain conviction of Bozza on any of the five counts, reliance must be placed on the testimony of Ellen Vettor. She testified that Chirichillo was the moving party throughout the enterprise. She identified Bozza as a man called “Jack” who “helped out” Chirichillo in the making of the alcohol inside the farmhouse. She swore that Bozza “wasn’t there every day in the week” and that “he would just come around between two and three times a week he would appear there; he was not there steady.” In response to a question of the court, “When he did come there what did he do?” she replied, “He would help, he would take instructions from Nick and help him around.” The only other evidence she gave against Bozza was in describing how Chirichillo transported the alcohol from the farmhouse to Newark. She testified that the cans of alcohol were in Chiri-chillo’s car, in which she rode, and that “sometimes we would follow Jack Bozza’s car.” She testified further that so far as she knew there never was any alcohol carried in Bozza’s automobile.
The question for our determination is whether Vettor’s testimony, relating to Bozza, as summarized above, is sufficient to sustain conviction on any of the counts. Section 332 of the Criminal Code makes every person who “directly commits any act constituting an offense defined in any law of the United States, or aids, abets, counsels, commands, induces, or procures its commission” a “principal.” Vettor’s testimony justified a jury finding that Chirichillo directly committed and Bozza aided, abetted or counseled the commission of the offenses charged in the first three counts: Cf. United States v. Johnson, 1943, 319 U.S. 503, 514, 63 S.Ct. 1233, 87 L.Ed. 1546.
But, the concealment and transportation counts stand on a different footing. Mere evidence that Bozza “helped around” in the cooking of alcohol would not justify a finding that he directly concealed or that he aided or abetted in the concealment of the specific 2% gallons of alcohol found in the still’s receiving tank: Cf. Czarnecki v. United States, 3 Cir., 1938, 95 F.2d 32; United States v. Sail, 3 Cir., 1940, 116 F. 2d 745.
We reach a similar conclusion regarding the conviction on the transportation count. Mere evidence that Chirichillo in transporting the alcohol sometimes followed Bozza’s automobile would not warrant a finding that Bozza transported or aided or abetted in the illegal transportation of 35 gallons of alcohol.
Consequently, the convictions on the fourth and fifth counts cannot stand.
Appellant challenges the legality of the sentence on the first three counts. On the morning of July 23, 1945, following the return of the guilty verdict, the trial judge sentenced Bozza to two years’ imprisonment on each of the first three counts and to two years’ and six months’ imprisonment on the fourth and fifth counts, all the sentences to run concurrently, That same day, about five hours later, Bozza was recalled and the court added certain minimum mandatory fines and penalties to the sentences. In the interim, Bozza had been taken to a marshal’s detention room in the same building in which the United States District Court is held and from there removed to the Hudson County Jail in Jersey City, a federal place of detention, where he awaited transportation to the place where his sentence was to be served. Appellant now contends that because he had begun service of his sentence (18 U.S.C.A. § 709a) the trial judge lacked the power to increase his punishment by adding the fines and penalties. It is true that a judge is powerless to add to a sentence, once validly imposed, after the prisoner has begun to serve it. This is “upon the ground that to increase the penalty is to subject the defendant to double punishment for the same offense in violation of the Fifth Amendment to the Constitution, which provides that no person shall ‘be subject for the same offense to be twice put in jeopardy of life or limb’”: United States v. Benz, 1931, 282 U.S. 304, 307, 51 S.Ct. 113, 114, 75 L.Ed. 354. Cf. Roberts v. United States, 1943, 320 U.S. 264, 64 S.Ct. 113, 88 L.Ed. 41.
However, it is well established that imposition of a sentence at variance with the statutory requirements is a “void act”. Such a sentence may be superseded by a new sentence in conformity to the provisions of the statute. It is no hindrance that the correction- — even when it entails a greater punishment — occurs after sentence has been partially served or after the term of court has expired: See King v. United States, 1938, 69 App.D.C. 10, 98 F.2d 291, DeBenque v. United States, 1936, 66 App. D.C. 36, 85 F.2d 202, 106 A.L.R. 839, certiorari denied, 1936, 298 U.S. 681, 56 S.Ct. 960, 80 L.Ed. 1402, rehearing denied, 1936, 299 U.S. 620, 57 S.Ct. 6, 81 L.Ed. 457; Anderson v. Rives, 1936, 66 App.D.C. 174, 85 F.2d 673; Egan v. United States, 1923, 52 App.D.C. 384, 287 F. 958; Harman v. United States, C.C., 1892, 50 F., 921; D.C., 1895, 68 F. 472 (same case on resentence). These authorities are dispositive of appellant’s reliance on the double jeopardy clause of the Fifth Amendment unless they are distinguishable because, here, the trial judge corrected the erroneous sentence on his own initiative.
“Double jeopardy” is a plastic concept. Its application has never been immutably fixed, either at common law or under the protective Bill of Rights. Palko v. Connecticut, 1937, 302 U.S. 319, 322, 58 S.Ct. 149, 82 L.Ed. 288. Uncorrected, the court’s action was violative of congressional will: Ex parte United States, 1916, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129, L.R.A. 19.17E, 1178, Ann.Cas.1917B, 355. Corrected, it merely imposed upon the defendant a penalty fixed by Act of Congress. This is neither double jeopardy nor double punishment. We see no constitutional hindrance to the court’s action: cf. United States v. Roberts, 320 U.S. 264, 276, 277, 64 S.Ct. 113, 88 L.Ed. 41 (dissent by Frankfurter, J.) We conclude that the sentence as amended by the court below is valid and operative:’ cf. Rowley v. Welch, 1940, 72 App.D.C. 351, 114 F.2d 499.
Appellant’s final contention that the charge of the trial judge “took the form of animated argument and amounts to acts of advocacy in favor of the government” is without merit. Taking the charge in its entirety, we believe it to be a fair presentation of the case and without prejudice to the appellant.
Since we have concluded that the government’s proof was insufficient to sustain a: conviction on either the fourth or fifth counts, a reversal must follow. The question' is whether we must remand for a new trial or whether it is proper to direct entry of judgment of acquittal. A directed verdict of acquittal requires action by a jury and it has been held, under common law criminal practice, that upon an erroneous refusal of a trial judge to direct a verdict of acquittal, the appellate court must remand for a new trial. Cf. Tatcher v. United States, 3 Cir., 1939, 107 F.2d 316 with United States v. Tatcher, 3 Cir., 1942, 131 F.2d 1002. But see Commonwealth v. Benz, 1935, 318 Pa. 465, 472, and 477, 178 A. 390.
By the Rules of Criminal Procedure for the District Courts of the United States, effective March 21, 1946, motions for directed verdict, are. abolished and in their place are substituted motions for judgment of acquittal. Rule 29(a). And, Rule 29 (b) permits judgments non obstante veredicto. ' In the Advisory Committee Note to Rule 29.(b), it is stated that, “This rule is in substance similar to Rule 50(b) of the Federal Rules of Civil Procedure [28 U.S. ,C.A. following section 723.c] and permits the court to render judgment for the defendant notwithstanding a verdict of guilty. Some Federal courts have recognized and approved the use óf a judgment non obstante veredicto for the defendant in a criminal case, Ex parte United States, 7 Cir., 101 F.2d 870 [131 A.L.R. 176], affirmed by.an equally divided court, United States v. Stone, 308 U.S. 519, 60 S.Ct. 177, 84 L.Ed. 441. The rule sanctions this practice.”
Rule 59 provides that the Rules “govern all criminal proceedings” commenced after their effective date, “and so far as just and practicable all proceedings then pending.” The present is a “pending” proceeding. It is both just and practicable to reverse and remand for entry of judgment of acquittal on the fourth and fifth counts because of insufficiency of proof to sustain such convictions.
Accordingly, judgment of the court below is affirmed' as to the conviction and sentence on the first three counts. It is reversed and remanded for entry of judgment of acquittal on the fourth and fifth counts.
This is a receptacle into which the alcohol drips in the process of distillation. Presence of rust and water gives rise to appellant’s speculation that the 2% gal-Ions of alcohol thus found might easily have been the residue in the tank remaining after the operators thought they had emptied it.
26 I.R.C. See. 2833(a), 26 U.S.C.A. Int.Rev.Code, § 2833(a).
26 I.R.C. Sec. 2810(a), 26 U.S.C.A. Int.Rev.Code, § 2810(a).
26 I.R.C. Sec. 2834, 26 U.S.O.A. Int. Rev.Code, § 2834.
26 I.R.C. See. 3321(a), 26 U.S.O.A. Int.Rev.Code; § 3321(a).
26 I.R.C. Sec. 2803, 26 U.S.C.A. Int. Rev.Code, § 2803.
18 U.S.O.A. § 550.
Thus, conviction on the first count carried a mandatory punishment of a fine of not less than $100 nor more than $5000 and imprisonment for not less than thirty days nor more than two years. Punishment for conviction on the second count is fixed by Act of Congress at a penalty of $500, fine of not less than $100 nor more than $1000 and imprisonment for not less than one month nor more than two years. Under count 4, conviction required a fine of not less than $500 nor more than $5000 and imprisonment for not less than six months nor more than two years. As to each count, on recalling the prisoner, the court added the minimum fine and penalty as required in order to bring the sentence into conformity with the Internal Revenue Code provisions cited in footnotes 2, 3, 4 supra.
In these eases, the defendant attacked the original improperly imposed sentence. A resentenee even to a greater punishment than that originally imposed would not violate the double jeopardy clause of the Fifth Amendment: Murphy v. Commonwealth of Massachusetts, 1900, 177 U.S. 155, 20 S.Ct. 639, 44 L.Ed. 711; cf. Kepner v. United States, 1904, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114, 1 Ann.Cas. 655; Trono v. United States, 1905, 199 U.S. 521, 26 S.Ct. 121, 50 L.Ed. 292, 4 Ann.Cas. 773.
Rule 29(a) provides as follows: “Motions for directed verdict are abolished and motions for judgment of acquittal shall be used in their place. The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses. If a defendant’s motion for judgment of acquittal at the close of the evidence offered by the government is not granted, the defendant may offer evidence without having reserved the right.”
Rule 29(b) provides as follows: “If a motion for judgment of acquittal is made at the close of all the evidence, the court may reserve decision on the motion, submit the case to the jury and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict. If the motion is denied and the case is submitted to the jury, the motion may be renewed within 5 days after the jury is discharged and may include in the alternative a motion for a new trial. If a verdict of guilty is returned the court may on such motion set aside the verdiGt and order a new trial or enter judgment of acquittal. If no verdict is returned the court may order a new trial or enter judgment of acquittal.”
Question: What is the most frequently cited federal rule of criminal procedure in the headnotes to this case? Answer with a number.
Answer:
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songer_casetyp1_1-2
|
A
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal".
UNITED STATES of America, Appellee, v. Richard M. PENTA, Defendant, Appellant.
No. 72-1331.
United States Court of Appeals, First Circuit.
Argued Jan. 5, 1973.
Decided March 7, 1973.
Paul F. Sweeney, Boston, Mass., for defendant, appellant.
Richard E. Bachman, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., was on brief, for appellee.
Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges.
COFFIN, Chief Judge.
In June, 1970, appellant Penta was convicted of fraudulently possessing and transferring counterfeit Federal Reserve Notes in violation of 18 U.S.C. §§ 472 and 473. His sole defense was that he was entrapped by an alleged government agent. We affirmed the conviction in December, 1970, in an unpublished memorandum and order. Subsequently, in May, 1972, in a post-conviction collateral proceeding, the Massachusetts Supreme Judicial Court reversed earlier state court convictions of appellant in the mid-1960’s for concealing stolen motor vehicles, on the basis that some of the evidence introduced resulted from an illegal search and seizure. Commonwealth v. Penta, 1972 Mass.Adv.Sh. 1015, 282 N.E.2d 674. Since these convictions had been used in the 1970 federal trial to impeach appellant’s credibility, he moved for a new trial and appeals from the denial thereof.
Initially we are met with the government’s contention, superficially appealing, that appellant may not be heard to complain about the use of the state convictions by the prosecutor on cross-examination since his own trial counsel elicited admissions of these convictions from him on direct examination. While there is some authority for the view that a defendant who first raises the issue of his prior convictions cannot complain of prosecutorial reference thereto, that rule is based upon the premise that the convictions were properly admissible in the first place to impeach the defendant’s credibility and might have been inquired into by the prosecutor in the face of a defendant’s silence on direct examination. Bohol v. United States, 227 F.2d 330 (9th Cir. 1955); United States v. Menk, 406 F.2d 124 (7th Cir. 1968) cert. denied, 395 U.S. 946, 89 S.Ct. 2019, 23 L.Ed.2d 464 (1969). That is a far cry from what we take to be the claim here: that while the state convictions may have been properly admissible at the time of the federal trial, their subsequent reversal requires a new federal trial. Moreover, we cannot fault appellant’s trial counsel who, apparently acting in good faith, introduced into evidence appellant’s prior state convictions, so as to prevent the prosecutor, on cross-examination, from stunning the jury by being first to bring these skeletons out of what otherwise might have been viewed as the defendant’s deceptively clean closet. We thus address appellant’s argument.
Appellant does not deny that he committed the act in question, but rather argues that he was entrapped by one O’Connell, a former business associate acting as a government agent. His story is that O’Connell owed him several thousand dollars, which O’Connell said could be paid only if appellant helped him, as a middleman, to sell counterfeit money. O’Connell supposedly approached appellant on December 3, 1969, with this request which was allegedly consistently refused until December 10, the morning of the sale. From the testimony of government agent Hurley it appears that O’Connell first told Hurley on December 9 that an unnamed friend of his wished to sell counterfeit money. At that time Hurley told O’Connell that he “would see what [he] could do for [O’Connell]” on account of his help. Late at night, after viewing samples of the counterfeit money, Hurley instructed O’Connell how to continue dealing with appellant and set up a meeting preceding the sale. Appellant’s name was never revealed to Hurley, despite his continual questioning, until one hour before the meeting on December 10.
At the conclusion of appellant’s testimony his trial counsel asked him about his prior convictions and parole status, all of which he openly admitted. Assuming arguendo that after O’Connell’s December 9 visits with Hurley he could be said to have become a government agent — an issue sent to the jury — only then would appellant’s credibility be crucial to his defense-of entrapment. See generally Kadis v. United States, 373 F.2d 370 (1st Cir. 1967). In that situation, appellant alleges — and we will assume so at this juncture — that the evidence of prior convictions must have affected the jury’s view of his veracity. Consequently we must determine if the subsequent reversal of those convictions requires a new trial on the counterfeiting charge.
It has recently been decided that if a conviction is based in part, on the use of prior convictions which are constitutionally invalid due to lack of counsel and which were introduced to impeach a defendant’s credibility, it must be set aside if there is no harmless error. Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972). See also Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). While the Supreme Court had before it in Loper the broad question “Does the use of prior, void convictions for impeachment purposes deprive a criminal defendant of due process of law where their use might well have influenced the outcome of the case”, in its resolution of that issue in the particular fact situation before it, the Court drew exclusively upon the rationale behind the rule in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), which “goes to ‘the very integrity of the fact-finding process’ in criminal trials” and recognizes that convictions of uncounseled defendant lack reliability. Loper, supra, 405 U.S. at 484, 92 S.Ct. at 1019. Beto v. Stacks, 408 F.2d 313 (5th Cir. 1969), involving a factual situation virtually identical to the one before us now, addressed the problem of prior convictions subsequently found invalid because of an illegal search or seizure and could find no controlling distinction between Fourth and Sixth Amendment rights which would support a conclusion different from Burgett, the predecessor to Lo-per. It said that “while it is true that the use of evidence resulting from an unlawful search and seizure is less likely to affect the integrity of the fact-finding process than the denial of counsel at trial . . . the creation of such a constitutional hierarchy is not part of the rationale of Burgett.” Id. at 316.
In light of subsequent developments involving the exclusionary rule and Stacks’ omission of any discussion of Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954), see infra, we feel compelled to examine anew the issue in Stacks. We agree that the use of evidence obtained from an unlawful search and seizure has a definite influence on the fact-finding process, but in a very different way from deprivation of counsel. Such evidence tends to make the resulting conviction more, not less trustworthy. There is no lack of reliability as there was in Loper.
If the use of appellant’s prior state convictions, subsequently found to suffer from a constitutional defect, require that his federal conviction be vacated absent harmless error, it is only because the fruits of the poisonous tree now contain this additional genus. But an'examination of the roots of that tree and recent actions to limit its growth require rejection of appellant’s claim. The exclusionary rule has been called a deterrent against future illegal police conduct. “Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it.” Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 1444, 4 L.Ed.2d 1669 (1960). And long ago, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), established the rule as a remedy for violations of the offender’s Fourth Amendment rights.
When these principles are examined in an effort to apply the exclusionary rule here, they give little support to appellant. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) permitted the introduction into evidence of a confession relating to the offenses charged which was uncoerced, hence apparently trustworthy, but otherwise inadmissible under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The confession was used as a means of impeaching a defendant who had testified falsely on direct examination as to matters bearing quite directly on those offenses. But cf. Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925). And earlier Walder allowed the admission of evidence which was illegally seized in a prior unrelated action to impeach a defendant who had testified falsely on direct examination as to matters collateral to the trial at which the evidence was admitted. Concededly, the otherwise inadmissible but trustworthy confessions and physical evidence in Harris and Walder were used to directly contradict specific false statements made on direct examination, and not to attack the defendant’s credibility in a more general manner. Yet it appears that the controlling rationale was that the valuable aid to assessing the defendant’s credibility should not be lost “because of the speculative possibility that impermissible police conduct will be encouraged thereby . . . . [Sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.” Harris, supra, 401 U.S. at 225, 91 S.Ct. at 645. We think that the deterrent effect in instances like the one before us is similarly speculative.
If the exclusionary rule’s application in these circumstances is sought to be justified as a remedy for violation of appellant’s Fourth Amendment rights many years ago by Massachusetts police, we think that the suggested cure is worse than the disease. First, appellant has already received a remedy which is the most appropriate — his prior convictions were reversed. But more fundamentally, at the time of the federal trial the Massachusetts Supreme Judicial Court had already affirmed appellant’s state convictions. Commonwealth v. Penta, 352 Mass. 271, 225 N.E.2d 58. (1967). There was not the least hint or suggestion that those convictions were invalid. The situation is far different from cases like Loper where a trial judge could rather easily resolve a deprivation of counsel claim by reference to a defendant’s sworn statements and trial court records of prior convictions. It would play havoc with our court system to require a judge to conduct side-trials into the allegedly invalid prior convictions to determine the legality of a search or seizure. See United States v. Wendt, 347 F.Supp. 647 (N.D.Ga.1972) (dictum). We do not think that the theoretical possibilities regarding additional police deterrence or the need to effectively remedy violations of Fourth Amendment rights can serve as the justification for imposing such heavy burdens on our courts.
Nothing we have said so far is meant to suggest that we would condone introduction of the state convictions had they been overturned, on the basis of the illegal search, prior to the time of the federal trial. We note that appellant did not testify falsely on direct examination as to matters which could be specifically contradicted by reference to the prior convictions or acts as was done in Walder and Harris where the Court desired to prevent the affirmative use of perjured testimony by a defendant. No case has gone so far to suggest that the prosecution might introduce what has already been determined to be illegally obtained evidence from prior unrelated acts or convictions to impeach generally a defendant’s credibility and this contention appears to have been rejected in People v. Taylor, 104 Cal.Rptr. 350, 501 P.2d 918 (1972). In that situation the exclusionary rule does not interfere with the orderly functioning of the judicial system. Additionally, a contrary holding might otherwise affect the defendant’s choice of whether to testify in his own behalf. Harris, supra, 401 U.S. at 230, 91 S.Ct. 643, 28 L.Ed.2d 1 (Brennan, J., dissenting). We only go so far as to hold that a conviction which may have been influenced by the use, for general impeachment purposes, of prior convictions, which have been subsequently overturned on constitutional ’ grounds . relating to an illegal search or seizure, may properly stand.
To the extent that we may be incorrect in reading the recent Supreme Court holdings as requiring rejection of appellant’s claim, we still believe that the use of the prior convictions constituted harmless error beyond a reasonable doubt. Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 258 (1972). First, appellant’s credibility on his entrapment defense was greatly harmed by evidence relevant to predisposition that he had been charged with possession of burglar tools in the past. Second, his story was contradicted directly in part by government agents who testified to appellant’s suede coat being dry — though he alleged having walked some three blocks in a rainstorm to the place of the sale — and to his having stated, after being warned of his right to remain silent, that he had been sent out with some money to obtain some bread and had returned with neither money nor bread — a fact appellant denied at trial. Though appellant may have been incorrect in his testimony on these points and still may have been capable of being believed as to his story of entrapment in the main, we think that the use of the convictions when considered in this context added no more than minimally to the enormous damage already done to his credibility.
Affirmed.
. The search warrants involved did not comply with Mass.Gen.Laws ch. 276, § 2B, which, as it has not been contended otherwise, we take to furnish constitutional minima.
. Of course, where a defendant’s counsel introduces prior convictions which ho knows to be illegal or which so appear on their face — e. g., those resulting from deprivation of counsel — then there is a far greater reason to accept the government’s estoppel argument. While there might be the possibility that a defense lawyer could, where the legality of the prior convictions is less clear, seed the record with anticipated errors relating to the prior convictions, and upon his client’s couviction seek to attack the prior convictions in (be hope that if successful, the subsequent conviction would also fall, that game of Russian roulette seems improbable, and, in any event, our disposition here removes that concern.
. O’Connell, who did not testify in this case, subsequently received a reward of $2000.
. The Court in Loper, supra, 405 U.S. at 482 n. 11, 92 S.Ct. 1014, 31 L.Ed.2d 374, noted this distinction in contrasting the use of uncounseled convictions to impeach general credibility in the case before it with the more specific contradictions in Harris and Walder. While an argument can be made to the contrary, we do not think, because of the policies underlying application of the rule of exclusion for illegal search, that this footnote should be considered as requiring a finding of error where prior convictions, used only for general impeachment purposes, are subsequently reversed ; nor because of the entire thrust of the text in Loper, do we think that the footnote should be read as indicating that Loper applies in a Fourth Amendment as well as a Sixth Amendment context.
. Appellant waited until November, 1970, to challenge these convictions in a federal habeas corpus suit winch was dismissed without prejudice in March, 1971, for failure to exhaust state remedies. We need not reach the question whether the exclusionary rule might have some application where an appeal or some other proceeding which challenges the legality of the prior convictions on search and seizure grounds is pending. Cf. F.R.Evid. 609 (e).
. If Taylor is correct, there would seem to be a prohibition on prosecutorial reference to either the voided prior convictions or evidence discovered as the result of an illegal search or seizure in an effort to impeach generally.
Question: What is the specific issue in the case within the general category of "criminal"?
A. federal offense
B. state offense
C. not determined whether state or federal offense
Answer:
|
songer_origin
|
I
|
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.
HAY FOUNDRY & IRON WORKS, Plaintiff, v. BUTTERWORTH-JUDSON CORPORATION, Defendant, and United States, Appellant.
(Circuit Court of Appeals, Second Circuit.
May 18, 1925.)
No. 375.
Appeal from the District Court of the United States for the Southern District of New York.
Certiorari granted 45 S. Ct. 640, 69 L. Ed. 1157.
Decree reversed, 269 U. S.-, 46 S. Ct. 179, 70 L. Ed.-.
Rushmore, Bisbee & Stern, of New York City (Eldon Bisbee and Bertram F. Shipman, both of New York City, of counsel), for receivers.
Emory R. Buckner, U. S. Atty., of New York City, Alexander Holtzoff, Sp. Asst. Atty. Gen., and Robert E. Manley and Charles L. Sylvester, Asst. U. S. Attys., both of New York City, for petitioner appellant.
Before ROGERS, HOUGH, and HAND, Circuit Judges.
PER CURIAM.
Decree affirmed, on the decision of this court in Equitable Trust Co. v. Connecticut Brass & Manufacturing Corporation, 290 F. 712.
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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sc_issuearea
|
E
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
INTEL CORP. v. ADVANCED MICRO DEVICES, INC.
No. 02-572.
Argued April 20, 2004 —
Decided June 21, 2004
Seth P. Waxman argued the cause for petitioner. With him on the briefs were Jonathan E. Nuechterlein, Joseph Kattan, and James A. Murray. Carter G. Phillips argued the cause and filed a brief as amicus curiae for the Commission of the European Communities in support of petitioner under this Court’s Rule 12.6. With him on the brief were Virginia A. Seitz, Richard Weiner, Gene C. Schaerr, and Marinn F. Carlson.
Patrick Lynch argued the cause for respondent. With him on the brief was Jonathan D. Hacker.
Jeffrey P. Minear argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitor General Dreeben, Deputy Assistant Attorney General Katsas, Michael Jay Singer, and Sushma Soni
Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States by Roy T. Englert, Jr., Max Huffman, and Robin S. Conrad; and for the Product Liability Advisory Council, Inc., by Kenneth S. Getter and Miriam R. Nemetz.
“[A] letter rogatory is the request by a domestic court to a foreign court to take evidence from a certain witness.” Jones, International Judicial Assistance: Procedural Chaos and a Program for Reform, 62 Yale L. J. 515, 519 (1953). See Smit, International Litigation under the United States Code, 65 Colum. L. Rev. 1015, 1027 (1965) (hereinafter Smit, International Litigation) (noting foreign courts’ use of letters rogatory to request evidence-gathering aid from United States courts).
Justice Ginsburg
delivered the opinion of the Court.
This case concerns the authority of federal district courts to assist in the production of evidence for use in a foreign or international tribunal. In the matter before us, respondent Advanced Micro Devices, Inc. (AMD), filed an antitrust complaint against petitioner Intel Corporation (Intel) with the Directorate-General for Competition (DG-Competition) of the Commission of the European Communities (European Commission or Commission). In pursuit of that complaint, AMD applied to the United States District Court for the Northern District of California, invoking 28 U. S. C. § 1782(a), for an order requiring Intel to produce potentially relevant documents. Section 1782(a) provides that a federal district court “may order” a person “residing]” or “found” in the district to give testimony or produce documents “for use in a proceeding in a foreign or international tribunal... upon the application of any interested person.”
Concluding that § 1782(a) did not authorize the requested discovery, the District Court denied AMD’s application.. The Court of Appeals for the Ninth Circuit reversed that determination and remanded the case, instructing the District Court to rule on the merits of AMD’s application. In accord with the Court of Appeals, we hold that the District Court had authority finder § 1782(a) to entertain AMD’s discovery request. The statute, we rule, does not categorically bar the assistance AMD seeks: (1) A complainant before the European Commission, such as AMD, qualifies as an “interested person” within §1782(a)’s compass; (2) the Commission is a § 1782(a) “tribunal” when it acts as a first-instance decisionmaker; (3) the “proceeding” for which discovery is sought under § 1782(a) must be in reasonable contemplation, but need not be “pending” or “imminent”; and (4) § 1782(a) contains no threshold requirement that evidence sought from a federal district court would be discoverable under the law governing the foreign proceeding. We caution, however, that § 1782(a) authorizes, but does not require, a federal district court to provide judicial assistance to foreign or international tribunals or to “interested person[s]” in proceedings abroad. Whether such assistance is appropriate in this case is a question yet unresolved. To guide the District Court on remand, we suggest considerations relevant to the disposition of that question.
I
A
Section 1782 is the product of congressional efforts, over the span of nearly 150 years, to provide federal-court assistance in gathering evidence for use in foreign tribunals. Congress first provided for federal-court aid to foreign tribunals in 1855; requests for aid took the form of letters rogatory forwarded through diplomatic channels. See Act of Mar. 2, 1855, ch. 140, § 2, 10 Stat. 630 (circuit court may appoint “a United States commissioner designated... to make the examination of witnesses” on receipt of a letter rogatory from a foreign court); Act of Mar. 3, 1863, ch. 95, § 1, 12 Stat. 769 (authorizing district courts to respond to letters rogatory by compelling witnesses here to provide testimony for use abroad in “suitfs] for the recovery of money or property”). In 1948, Congress substantially broadened the scope of assistance federal courts could provide for foreign proceedings. That legislation, codified as § 1782, eliminated the prior requirement that the government of a foreign country be a party or have an interest in the proceeding. The measure allowed district courts to designate persons to preside at depositions “to be used in any civil action pending in any court in a foreign country with which the United States is at peace.” Act of June 25, 1948, ch. 646, § 1782, 62 Stat. 949 (emphasis added). The next year, Congress deleted “civil action” from § 1782’s text and inserted “judicial proceeding.” Act of May 24, 1949, ch. 139, §93, 63 Stat. 103. See generally Jones, International Judicial Assistance: Procedural Chaos and a Program for Reform, 62 Yale L. J. 515 (1953).
In 1958, prompted by the growth of international commerce, Congress created a Commission on International Rules of Judicial Procedure (Rules Commission) to “investigate and study existing practices of judicial assistance and cooperation between the United States and foreign countries with a view to achieving improvements.” Act of Sept. 2, Pub. L. 85-906, §2, 72 Stat. 1743; S. Rep. No. 2392, 85th Cong., 2d Sess., 3 (1958); Smit, International Litigation 1015-1016. Six years later, in 1964, Congress unanimously adopted legislation recommended by the Rules Commission; the legislation included a complete revision of § 1782. See Act of Oct. 3, Pub: L. 88-619, § 9, 78 Stat. 997; Smit, International Litigation 1026-1035.
As recast in 1964, § 1782 provided for assistance in obtaining documentary and other tangible evidence as well as testimony. Notably, Congress deleted the words “in any judicial proceeding pending in any court in a foreign country,” and replaced them with the phrase “in a proceeding in a foreign or international tribunal.” Brief for United States as Ami-cus Curiae 6, 4a-5a (emphasis added). While the accompanying Senate Report does not account discretely for the deletion of the word “pending,” it explains that Congress introduced the word “tribunal” to ensure that “assistance is not confined to proceedings before conventional courts,” but extends also to “administrative and quasi-judicial proceedings.” S. Rep. No. 1580, 88th Cong., 2d Sess., 7 (1964); see H. R. Rep. No. 1052, 88th Cong., 1st Sess., 9 (1963) (same). Congress further amended § 1782(a) in 1996 to add, after the reference to “foreign or international tribunal,” the words “including criminal investigations conducted before formal accusation.” National Defense Authorization Act for Fiscal Year 1996, Pub. L. 104-106, § 1342(b), 110 Stat. 486. Section 1782(a)’s current text reads:
“The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person____ The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing... [or may be] the Federal Rules of Civil Procedure.
“A person may not be compelled to give his testimony or statement or to produce a document or other thing in 'violation of any legally applicable privilege.”.
B
AMD and Intel are “worldwide competitors in the microprocessor industry.” 292 F. 3d 664, 665 (CA9 2002). In October 2000, AMD filed an antitrust complaint with the DG-Competition of the European Commission. Ibid,.; App. 41. “The European Commission is the executive and administrative organ of the European Communities.” Brief for Commission of European Communities as Amicus Curiae 1 (hereinafter European Commission Amicus Curiae). The Commission exercises responsibility over the wide range of subject areas covered by the European Union treaty; those areas include the treaty provisions, and regulations thereunder, governing competition. See ibid.; Consolidated Versions of Treaty on European Union and Treaty Establishing European Community, Arts. 81 and 82, 2002 O. J. (C 325) 33, 64-65, 67 (hereinafter EC Treaty). The DG-Competition, operating under the Commission’s aegis, is the European Union’s primary antitrust law enforcer. European Commission Amicus Curiae 2. Within the DG-Competition’s domain are anticompetitive agreements (Art. 81) and abuse of dominant market position (Art. 82). Ibid.; EC Treaty 64-65.
AMD’s complaint alleged that Intel, in violation of European competition law, had abused its dominant position in the European market through loyalty rebates, exclusive purchasing agreements with manufacturers and retailers, price discrimination’ and standard-setting cartels. App. 40-43; Brief for Petitioner 13. AMD recommended that the DG-Competition seek discovery of documents Intel had produced in a private antitrust suit, titled Intergraph Corp. v. Intel Corp., brought in a Federal District Court in Alabama. 3 F. Supp. 2d 1255 (ND Ala. 1998), vacated, 195 F. 3d 1346 (CA Fed. 1999), remanded, 88 F. Supp. 2d 1288 (ND Ala. 2000), aff’d, 253 F. 3d 695 (CA Fed. 2001); App. 111; App. to Pet. for Cert. 13a-14a. After the DG-Competition declined to seek judicial assistance in the United States, AMD, pursuant to § 1782(a), petitioned the District Court for the Northern District of California for an order directing Intel to produce documents discovered in the Intergraph litigation and on file in the federal court in Alabama. App. to Pet. for Cert. 13a-14a. AMD asserted that it sought the materials in connection with the complaint it had filed with the European Commission. Ibid.
The District Court denied the application as “[unsupported by applicable authority.” Id., at 15a. Reversing that determination, the Court of Appeals for the Ninth Circuit remanded the case for disposition on the merits. 292 F. 3d, at 669. The Court of Appeals noted two points significant to its decision: § 1782(a) includes matters before “ ‘bodies of a quasi-judicial or administrative nature,’ ” id., at 667 (quoting In re Letters Rogatory from Tokyo Dist., 539 F. 2d 1216, 1218-1219 (CA9 1976)); and, since 1964, the statute’s text has contained “[no] requirement that the proceeding be ‘pending,’ ” 292 F. 3d, at 667 (quoting United States v. Sealed 1, Letter of Request for Legal Assistance from the Deputy Prosecutor Gen. of Russian Federation, 235 F. 3d 1200, 1204 (CA9 2000)); see supra, at 248-249. A proceeding judicial in character, the Ninth Circuit further observed, was a likely sequel to the European Commission’s investigation: “[The European Commission is] a body authorized to enforce the EC Treaty with written, binding decisions, enforceable through fines and penalties. [The Commission’s] decisions are appealable to the Court of First Instance and then to the [European] Court of Justice. Thus, the proceeding for which discovery is sought is, at minimum, one leading to quasi-judicial proceedings.” 292 F. 3d, at 667; see infra, at 254-255 (presenting synopsis of Commission proceedings and judicial review of Commission decisions).
The Court of Appeals rejected Intel’s argument that § 1782(a) called for a threshold showing that the documents AMD sought in the California federal court would have been discoverable by AMD in the European Commission investigation had those documents been located within the Union. 292 F. 3d, at 668. Acknowledging that other Courts of Appeals had construed § 1782(a) to include a “foreign-discoverability” rule, the Ninth Circuit found “nothing in the plain language or legislative history of Section 1782, including its 1964 and 1996 amendments, to require a threshold showing [by] the party seeking discovery that what is sought be discoverable in the foreign proceeding,” id., at 669. A foreign-discoverability threshold, the Court of Appeals added, would disserve § 1782(a)’s twin aims of “providing efficient assistance to participants in international litigation and encouraging foreign countries by example to provide similar assistance to our courts.” Ibid.
On remand, a Magistrate Judge found AMD’s application “overbroad,” and recommended an order directing AMD to submit a more specific discovery request confined to documents directly relevant to the European Commission investigation. App. to Brief in Opposition la-6a; Brief for Petitioner 15, n. 9. The District Court has stayed further proceedings pending disposition of the questions presented by Intel’s petition for certiorari. Ibid,.; see Order Vacating Hearing Date, No. C 01-7033 MISC JW (ND Cal., Dec. 1, 2003) (stating “Intel may renotice its motion for de novo review of the Magistrate Judge’s decision after the Supreme Court issues its ruling”).
We granted certiorari, 540 U. S. 1003 (2003), in view of the division among the Circuits on the question whether § 1782(a) contains a foreign-discoverability requirement. We now hold that § 1782(a) does not impose such a requirement. We also granted review on two other questions. First, does § 1782(a) make discovery available to complainants, such as AMD, who do not have the status of private “litigants” and are not sovereign agents? See Pet. for Cert. (i). Second, must a “proceeding” before a foreign “tribunal” be “pending” or at least “imminent” for an applicant to invoke § 1782(a) successfully? Compare In re Letter of Request from Crown Prosecution Serv. of United Kingdom, 870 F. 2d 686, 691 (CADC 1989) (proceeding must be “within reasonable contemplation”), with In re Ishihari Chemical Co., 251 F. 3d 120, 125 (CA2 2001) (proceeding must be “imminent — very likely to occur and very soon to occur”); In re International Judicial Assistance (Letter Rogatory) for Federative Republic of Brazil, 936 F. 2d 702, 706 (CA2 1991) (same). Answering “yes” to the first question and “no” to the second, we affirm the Ninth Circuit’s judgment.
II
To place this case in context, we sketch briefly how the European Commission, acting through the DG-Competition, enforces European competition laws and regulations. The DG-Competition’s “overriding responsibility” is to conduct investigations into alleged violations of the European Union’s competition prescriptions. See European Commission Amicus Curiae 6. On receipt of a complaint or sua sponte, the DG-Competition conducts a preliminary investigation. Ibid. In that investigation, the DG-Competition “may take into account information provided by a complainant, and it may seek information directly from the target of the complaint.” Ibid. “Ultimately, DG Competition’s preliminary investigation results in a formal written decision whether to pursue the complaint. If [the DG-Competition] declines to proceed, that decision is subject to judicial review” by the Court of First Instance and, ultimately, by the court of last resort for European Union matters, the Court of Justice for the European Communities (European Court of Justice). Id., at 7; App. 50; see, e. g., Case T-241/97, Stork Amsterdam BV v. Commission, 2000 E. C. R. 11-309, [2000] 5 C. M. L. R. 31 (Ct. 1st Instance 2000) (annulling Commission’s rejection of a complaint).
If the DG-Competition decides to pursue the complaint, it typically serves the target of the investigation with a formal “statement of objections” and advises the target of its intention to recommend a decision finding that the target has violated European competition law. European Commission Amicus Curiae 7. The target is entitled to a hearing before an independent officer, who provides a report to the DG-Competition. Ibid.; App. 18-27. Once the DG-Competition has made its recommendation, the European Commission may “dismis[s] the complaint, or issu[e] a decision finding infringement and imposing penalties.” European Commission Amicus Curiae 7. The Commission’s final action dismissing the complaint or holding the target liable is subject to review in the Court of First Instance and the European Court of Justice. Ibid.; App. 52-53, 89-90.
Although lacking formal “party” or “litigant” status in Commission proceedings, the complainant has significant procedural rights. Most prominently, the complainant may submit to the DG-Competition information in support of its allegations, and may seek judicial review of the Commission’s disposition of a complaint. See European Commission Ami-cus Curiae 7-8, and n. 5; Stork Amsterdam, 2000 E. C. R. II, at 328-329, ¶¶ 51-53.
Ill
As “in all statutory construction cases, we begin [our examination of §1782] with the language of the statute.” Barnhart v. Sigmon Coal Co., 534 U. S. 438, 450 (2002). The language of § 1782(a), confirmed by its context, our examination satisfies us, warrants this conclusion: The statute authorizes, but does not require, a federal district court to provide assistance to a complainant in a European Commission proceeding that leads to a dispositive ruling, i. e., a final administrative action both responsive to the complaint and reviewable in court. Accordingly, we reject the categorical limitations Intel would place on the statute’s reach.
A
We turn first to Intel’s contention that the catalog of “interested person[s]” authorized to apply for judicial assistance under § 1782(a) includes only “litigants, foreign sovereigns, and the designated agents of those sovereigns,” and excludes AMD, a mere complainant before the Commission, accorded only “limited rights.” Brief for Petitioner 10-11, 24, 26-27. Highlighting § 1782’s caption, “[assistance to foreign and international tribunals and to litigants before such tribunals,” Intel urges that the statutory phrase “any interested person” should be read, correspondingly, to reach only “litigants.” Id., at 24 (internal quotation marks omitted, emphasis in original).
The caption of a statute, this Court has cautioned, “cannot undo or limit that which the [statute’s] text makes plain.” Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519, 529 (1947). The text of § 1782(a), “upon the application of any interested person,” plainly reaches beyond the universe of persons designated “litigant.” No doubt litigants are included among, and may be the most common example of, the “interested person[s]” who may invoke § 1782; we read § 1782’s caption to convey no more. See, e. g., Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 482-483 (2001) (rejecting narrow reading of 42 U. S. C. § 7511(a) based on caption in light of “specifically” broader coverage of provision’s text).
The complainant who triggers a European Commission investigation has a significant role in the process. As earlier observed, see supra, at 255, in addition to prompting an investigation, the complainant has the right to submit information for the DG-Competition’s consideration, and may proceed to court if the Commission discontinues the investigation or dismisses the complaint. App. 52-53. Given these participation rights, a complainant “possesses] a reasonable interest in obtaining [judicial] assistance,” and therefore qualifies' as an “interested person” within any fair construction of that term. See Smit, International Litigation 1027 (“any interested person” is “intended to include not only litigants before foreign or international tribunals, but also foreign and international officials as well as any other person whether he be designated by foreign law or international convention or merely possess a reasonable interest in obtaining the assistance”).
B
We next consider whether the assistance in obtaining documents here sought by an “interested person” meets the specification “for use in a foreign or international tribunal.” Beyond question the reviewing authorities, both the Court of First Instance and the European Court of Justice, qualify as tribunals. But those courts are not proof-taking instances. Their review is limited to the record before the Commission. See Tr. of Oral Arg. 17. Hence, AMD could “use” evidence in the reviewing courts only by submitting it to the Commission in the current, investigative stage.
Moreover, when Congress established the Commission on International Rules of Judicial Procedure in 1958, see supra, at 248, it instructed the Rules Commission to recommend procedural revisions “for the rendering of assistance to foreign courts and quasi-judicial agencies.” §2, 72 Stat. 1743 (emphasis added). Section 1782 had previously referred to “any judicial proceeding.” The Rules Commission’s draft, which Congress adopted, replaced that term with “a proceeding in a foreign or international tribunal.” See supra, at 248-249. Congress understood that change to “provid[e] the possibility of U. S. judicial assistance in connection with [administrative and quasi-judicial proceedings abroad].” S. Rep. No. 1580, at 7-8; see Smit, International Litigation 1026-1027, and nn. 71, 73 (“[t]he term ‘tribunal’... includes investigating magistrates, administrative and arbitral tribunals, and quasi-judicial agencies, as well as conventional civil, commercial, criminal, and administrative courts”; in addition to affording assistance in cases before the European Court of Justice, § 1782, as revised in 1964, “permits the rendition of proper aid in proceedings before the [European] Commission in which the Commission exercises quasi-judicial powers”). See also European Commission Amicus Curiae 9 (“[W]hen the Commission acts on DG Competition’s final recommendation... the investigative function blur[s] into deci-sionmaking.”). We have no warrant to exclude the European Commission, to the extent that it acts as a first-instance decisionmaker, from § 1782(a)’s ambit. See 292 F. 3d, at 667; supra, at 255, n. 9.
C
Intel also urges that AMD’s complaint has not progressed beyond the investigative stage; therefore, no adjudicative action is currently or. even imminently on the Commission’s agenda. Brief for Petitioner 27-29.
Section 1782(a) does not limit the provision of judicial assistance to “pending” adjudicative proceedings. In 1964, when Congress eliminated the requirement that a proceeding be “judicial,” Congress also deleted the requirement that a proceeding be “pending.” See supra, at 248-249. “When Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect.” Stone v. INS, 514 U. S. 386, 397 (1995). The legislative history of the 1964 revision is in sync; it reflects Congress’ recognition that judicial assistance would be available “whether the foreign or international proceeding or investigation is of a criminal, civil, administrative, or other nature.” S. Rep. No. 1580, at 9 (emphasis added).
In 1996, Congress amended § 1782(a) to clarify that the statute covers “criminal investigations conducted before formal accusation.” See § 1342(b), 110 Stat. 486; supra, at 249. Nothing suggests that this amendment was an endeavor to rein in, rather than to confirm, by way of example, the broad range of discovery authorized in 1964. See S. Rep. No. 1580, at 7 (“[Tjhe [district] court[s] have discretion to grant assistance when proceedings are pending before investigating magistrates in foreign countries.”).
In short, we reject the view, expressed in In re Ishihara Chemical Co., that § 1782 comes into play only when adjudicative proceedings are “pending” or “imminent.” See 251 F. 3d, at 125 (proceeding must be “imminent — very likely to occur and very soon to occur” (internal quotation marks omitted)). Instead, we hold that § 1782(a) requires only that a dispositive ruling by the Commission, reviewable by the European courts, be within reasonable contemplation. See Crown Prosecution Serv. of United Kingdom, 870 F. 2d, at 691; In re Request for Assistance from Ministry of Legal Affairs of Trinidad and Tobago, 848 F. 2d 1151, 1155, and n. 9 (CA11 1988); Smit, International Litigation 1026 (“It is not • necessary.,. for the [adjudicative] proceeding to be pending at the time the evidence is sought, but only that the evidence is eventually to be used in such a proceeding.”).
D
We take up next the foreign-discoverability rule on which lower courts have divided: Does § 1782(a) categorically bar a district court from ordering production of documents when the foreign tribunal or the “interested person” would not be able to obtain the documents if they were located in the foreign jurisdiction? See supra, at 253-254, and n. 7.
We note at the outset, and count it significant, that § 1782(a) expressly shields privileged material: “A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.” See S. Rep. No. 1580, at 9 (“[N]o person shall be required under the provisions of [§ 1782] to produce any evidence in violation of an applicable privilege.”). Beyond shielding material safeguarded by an applicable privilege, however, nothing in the text of § 1782 limits a district court’s production-order authority to materials that could be discovered in the foreign jurisdiction if the materials were located there. “If Congress had intended to impose such a sweeping restriction on the district court’s discretion, at a time when it was enacting liberalizing amendments to the statute, it would have included statutory language to that effect.” In re Application of Gianoli Aldunate, 3 F. 3d 54, 59 (CA2 1993); accord Four Pillars Enterprises Co. v. Avery Dennison Corp., 308 F. 3d 1075, 1080 (CA9 2002); 292 F. 3d, at 669 (case below); In re Bayer AG, 146 F. 3d 188, 193-194 (CA3 1998).
Nor does § 1782(a)’s legislative history suggest that Congress intended to impose a blanket foreign-discoverability rule on the provision of assistance under § 1782(a). The Senate Report observes in this regard that § 1782(a) “leaves the issuance of an appropriate order to the discretion of the court which, in proper cases, may refuse to issue an order or may impose conditions it deems desirable.” S. Rep. No. 1580, at 7.
Intel raises two policy concerns in support of a foreigndiscoverability limitation on § 1782(a) aid — avoiding offense to foreign governments, and maintaining parity between litigants. Brief for Petitioner 23-24; Reply Brief 5, 13-14; see In re Application of Asta Medica, S. A., 981 F. 2d 1, 6 (CA1 1992) (“Congress did not seek to place itself on a collision course with foreign tribunals and legislatures, which have carefully chosen the procedures and laws best suited to their concepts of litigation.”). While comity and parity concerns may be important as touchstones for a district court’s exercise of discretion in particular cases, they do not permit our insertion of a generally applicable foreign-discoverability rule into the text of § 1782(a).
We question whether foreign governments would in fact be offended by a domestic prescription permitting, but not requiring, judicial assistance. A foreign nation may limit discovery within its domain for reason's peculiar to its own legal practices, culture, or traditions — reasons that do not necessarily signal objection to aid from United States federal courts. See Bayer, 146 F. 3d, at 194 (“[TJhere is no reason to assume that because a country has not adopted a particular discovery procedure, it would take offense at its use.”); Smit, Recent Developments in International Litigation, 35 S. Tex. L. Rev. 215, 235-236 (1994) (hereinafter Smit, Recent Developments) (same). A foreign tribunal’s reluctance to order production of materials present in the United States similarly may signal no resistance to the receipt of evidence gathered pursuant to § 1782(a). See South Carolina Ins. Co. v. Assurantie Maatschappij “De Zeven Provincien” N. V., [1987] 1 App. Cas. 24 (House of Lords ruled that nondiscoverability under English law did not stand in the way of a litigant in English proceedings seeking assistance in the United States under §1782). When the foreign tribunal would readily accept relevant information discovered in the United States, application of a foreign-discoverability rule would be senseless. The rule in that situation would serve only to thwart § 1782(a)’s objective to assist foreign tribunals in obtaining relevant information that the tribunals may find useful but, for reasons having no bearing on international comity, they cannot obtain under their own laws.
Concerns about maintaining parity among adversaries in litigation likewise do not provide a sound basis for a eross-the-board foreign-discoverability rule. When information is sought by an “interested person,” a district court could condition relief upon thát person’s reciprocal exchange of.information. See Euromepa, S. A. v. R. Esmerian, Inc., 51 F. 3d 1095, 1102 (CA2 1995); Smit, Recent Developments 237. Moreover, the foreign tribunal can place conditions on its acceptance of the information to maintain whatever measure of parity it concludes is appropriate. See Euromepa, 51 F. 3d, at 1101.
We also reject Intel’s suggestion that a § 1782(a) applicant must show that United States law would allow discovery in domestic litigation analogous to the foreign proceeding. Brief for Petitioner 19-20 (“[I]f AMD were pursuing this matter in the United States, U. S. law would preclude it from obtaining discovery of Intel’s documents.”). Section 1782 is a provision for assistance to tribunals abroad. It does not direct United States courts to engage in comparative analysis to determine whether analogous proceedings exist here. Comparisons of that order can be fraught with danger. For example, we have in the United States no close analogue to the European Commission regime under which AMD is not free to mount its own case in the Court of First Instance or the European Court of Justice, but can participate only as complainant, an “interested person,” in Commission-steered proceedings. See L. Ritter, W. Braun, & F. Rawlinson, European Competition Law: A Practitioner’s Guide 824-826 (2d ed. 2000) (describing a complaint as a potentially “more certain (and cheaper) alternative to private enforcement through the [European Union’s member states’] courts”).
IV
As earlier emphasized, see supra, at 260-261, a district court is not required to grant a § 1782(a) discovery application simply because it has the authority to do so. See United Kingdom v. United States, 288 F. 3d 1312, 1319 (CA11 2001) (“a district court’s compliance with a § 1782 request is not mandatory”). We note below factors that bear consideration in ruling on a § 1782(a) request.
First, when the person from whom discovery is sought is a participant in the foreign proceeding (as Intel is here), the need for § 1782(a) aid generally is not as apparent as it ordinarily is when evidence is sought from a nonparticipant in the matter arising abroad. A foreign tribunal has jurisdiction over those appearing before it, and can itself order them to produce evidence. App. to Reply Brief 4a (“When th[e] person [who is to produce the evidence] is a party to the foreign proceedings, the foreign or international tribunal can exercise its own jurisdiction to order production of the evidence.” (quoting declaration of H. Smit in In re: Application of Ishihara Chemical Co., Ltd., For order to take discovery of Shipley Company, L. L. C., Pursuant to 28 U.S.C. §1782, Misc. 99-232 (FB) (EDNY, May 18, 2000))). In contrast, nonparticipants in the foreign proceeding may be
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
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songer_respond1_5_3
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H
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "bureaucracy in charge of regulation". Your task is to determine which specific state government agency best describes this litigant.
McRAE v. WOODS, Acting Housing Expediter.
No. 4390.
United States Court of Appeals, Tenth Circuit.
April 18, 1952.
Rehearing Denied June 2, 1952.
Gretchen McRae, pro se.
Cecil H. Lichliter, Special Litigation Attorney, Office of Rent Stabilization, Washington, D. C. (Ed Dupree and A. M'. Edwards, Jr., Washington, D. C., were with him on the brief) for appellee.
Before PHILLIPS, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.
PER CURIAM.
This is an appeal from an order of the United States District Court of Colorado, denying certain motions of the appellant Gretchen McRae, seeking to review previous rulings of the trial court, including a final judgment in favor of the appellee, entered September 9, 1947, and from which no appeal was taken. The full history of this litigation will be found in Porter v. McRae, 10 Cir., 155 F.2d 213; McRae v. Creedon, 10 Cir., 162 F.2d 989, and McRae v. Woods, Em.App., 165 F.2d 790, certiorari, denied 333 U.S. 882, 68 S.Ct. 912, 92 L.Ed. 1157, and it would serve no useful purpose to recount it here.
Without enumerating the many pleadings filed, and contentions made, subsequent to the prior litigation, it is sufficient to say that they raise only issues which were presented, tried and finally decided in the former litigation.
The trial court correctly decided that the pleadings presented no new issues and its judgment is affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "bureaucracy in charge of regulation". Which specific state government agency best describes this litigant?
A. Environment
B. Market Practices
C. Transportation
D. Professions (licensing)
E. Labor-Management
F. Communications
G. Zoning/Land Use
H. Building and Housing
I. Other Regulating Activity
J. not ascertained
Answer:
|
songer_respond2_3_3
|
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 second listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "courts or legislative". Your task is to determine which specific federal government agency best describes this litigant.
James L. BUCKLEY et al., Plaintiffs, v. Hon. Francis R. VALEO et al., Defendants, Center For Public Financing of Elections, Common Cause, The League of Women Voters of the United States, Chellis O’Neal Gregory, Norman P. Jacknis, Susan B. King, Daniel R. Noyes, Mrs. Edgar B. Stern, Charles P. Taft, John W. Gardner, and Ruth Clusen, Intervening Defendants.
No. 75-1061.
United States Court of Appeals, District of Columbia Circuit.
Argued April 2, 1975.
Decided April 14, 1975.
Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVEN-THAL, ROBINSON, MacKINNON and WILKEY, Circuit Judges.
ORDER
PER CURIAM.
On consideration of the briefs, argument, and record made in connection with the pending motions to dismiss and to remand this action to the District Court, it is hereby
Ordered by the court that the motion to remand is granted to the extent indicated in the attached memorandum. The record herein is remanded together with the second round of filings of proposed findings of fact and supporting documents due on April 18, 1975 pursuant to our order of March 14, 1975. It is
Further ordered by the court that the District Court shall return the record to this court as soon as possible, but in no event later than May 19, 1975. It is
Further ordered by the court that final action by this court on defendants’ motion to dismiss is deferred pending return of the record.
Chief Judge BAZELON dissents for the reasons set forth in his attached statement.
MEMORANDUM
By the attached order, we seek to conform our treatment of this matter with the special review procedure set forth in Section 315(a) of the Federal Election Campaign Act, as amended (2 U.S.C. § 437h). That section requires that after the instituting of an action “as may be appropriate to construe the constitutionality of any provision of this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617 of title 18, United States Code,” then “[t]he district court immediately shall certify all questions of constitutionality of this Act or of section 608, 610, 611, 613, 614, 615, 616, or 617 of title 18, United States Code to the United States court of appeals for the circuit involved, which shall hear the matter sitting en banc.”
We are remanding the record to the District Court to do the following:
1. Identify constitutional issues in the complaint.
2. Take whatever may be necessary in the form of evidence — over and above submissions that may suitably be handled through judicial notice, as of legislative facts, supported by legislative history or works reasonably available, to the extent not controverted in material and substantial degree.
3. Make findings of fact with reference to those issues.
4. Certify to this court constitutional questions arising from steps 1, 2, and 3.
As indicated in the attached order, the District Court will return the record, as augmented on remand, to this court immediately, and in no event later than May 19, 1975.
We follow this procedure without ruling on the contention of defendants that such a procedure is required by the “certify” provision of Section 315(a), and that this provision must be read in conjunction with the rulings on the provision for certification of questions to the Supreme Court. We would reach the same result, at least at this juncture, even assuming that Section 315(a) establishes a sui generis procedure and contemplates that, in the interest of expedition, the Court of Appeals properly proceeds by appointing its own master to make a report of proposed findings. Our order is consonant with both these approaches, in practical aspect, and it is unnecessary to make a choice between them at this time. It is also consistent with the intention of Congress for expedition in appellate disposition.
Certain of the parties have questioned whether Subtitle H of the Internal Revenue Code (the public financing of presidential elections provisions) is subject to the procedures of Section 315(a). They cite 26 U.S.C. § 9011(b), which by its plain words commands a different review procedure — -the convening of a three-judge court — for review of Chapter 95 of Subtitle H. It is the view of the other parties that the review provisions set forth in Section 315(a) are sufficiently broad that all constitutional questions must be certified to this court.
To protect against the contingency that the Supreme Court might eventually hold that these issues should be decided by a three-judge court, either under 26 U.S.C. § 9011(b) or as to Chapter 96 under 28 U.S.C. §§ 2282, 2284, we suggest to the District Court that it certify the need for a three-judge court as to Subtitle H to the Chief Judge of this Circuit, in order that there may be parallel proceedings in that court and in this court with reference thereto.
. See Lowden v. Northwestern Nat. Bank & Trust Co., 298 U.S. 160, 162, 56 S.Ct. 696, 80 L.Ed. 1114 (1936); Atlas Ins. Co. v. Southern, Inc., 306 U.S. 563, 572-573, 59 S.Ct. 657, 83 L.Ed. 987 (1939); Emsheimer v. New Orleans, 186 U.S. 33, 22 S.Ct. 770, 46 L.Ed. 1042 (1902).
. The course we have designated will help avoid future embarrassment that might result if we chose one or another of the approaches offered by counsel and the Supreme Court were later to determine we had exceeded our authority.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "courts or legislative". Which specific federal government agency best describes this litigant?
A. one or both houses of Congress
B. congressional committee
C. officer of Congress or other Congress related actor
D. Federal District Court (or judge)
E. Federal Circuit Court of Appeals (or judge)
F. Court of Claims (or judge)
G. Tax Court (or judge)
H. Bankruptcy Court (or judge)
I. other court or judge
Answer:
|
songer_initiate
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
CENTURY MOTOR TRUCK CO. v. NOYES. In re NORTHWAY MOTOR CO.
(Circuit Court of Appeals. First Circuit.
April 7, 1927.)
No. 2099.
1. Bankruptcy <@=j227 — Inclusion of summary of evidence in referee’s certificate held substantial compliance with General Order No. 27 In Bankruptcy.
Under General Order No. 27 in Bankruptcy, providing that, when petition is filed for review of order of referee, he shall certify to the judge the questions presented, a summary of the evidence, etc., the evidence need not be attached to the certificate, but it is enough that the certificate contains a summary thereof.
2. Bankruptcy <§=>467(3)— Court’s order refusing confirmation of sale of bankrupt’s property for less than 75 per cent, of appraised value Is reviewable only for abuse of discretion (Bankruptcy Act, § 70b [Comp. St. § 9654]).
Under Bankruptcy Act, § 70b (Comp. St. § 9654), providing that bankrupt’s property shall not be sold otherwise than subject to approval of the court for less than 75 per cent, of its appraised value, confirmation of sale for less is in court’s discretion, and, in absence of abuse thereof its confirmation of referee’s refusal to confirm a sale for much less than such per cent, is not reviewable, though the referee had authorized sale on condition that it should not be made for less than a certain amount, and the bid was more than that amount.
Appeal from the District .Court of the United States for the District of Massachusetts; James M. Morton, Jr., Judge.
In the matter of the Northway Motor Company, bankrupt. From an order of the court confirming an order of the referee refusing to confirm a sale by Frank Y. Noyes, trustee, to the Century Motor Truck Company, and confirming a later sale to another, the Century Motor Truck Company appeals.
Affirmed.
Robert A. B. Cook, James H. Duffin, and Phipps, Durgin & Cook, all of Boston, Mass. (Max H. Finkelston, of Detroit, Mich., of counsel), for appellant.
Mason H. Stone, of Boston, Mass., for appellee.
Frank O. White and Curtis G. Metzler, both of Boston, Mass., for amici curiee.
Before JOHNSON and ANDERSON,Circuit Judges, and LOWELL, District Judge.
JOHNSON, Circuit Judge.
This is an appeal from an order of the District Court of the United States for the District of Massachusetts dismissing a petition by a trustee in bankruptcy for confirmation of a sale of, property of the bankrupt and confirming a subsequent sale.
The facts, so far as material, are as follows: • On July 23, 1926, the trustee of the Northway Motor Corporation, the bankrupt, sold at public auction certain real estate and personal property of the bankrupt estate at Marion, Ind. The price bid for the real estate was $10,200 and for the personal property $32,026.02, a total of $42,226.02. On July 30, 1926, the trustee filed a petition before the referee in bankruptcy of the District Court of Massachusetts, which had jurisdiction of the bankrupt estate, asking that the sale be confirmed. At the hearing upon confirmation an offer of $50,000 was made in open court, before the referee, for the same property, and the referee dismissed the petition on the ground of inadequacy of price.
On August 5, 1926, the trustee filed a petition for leave to sell the property at private sale, which, upon notice and hearing, was granted by the referee upon the condition that not less than $50,000 should be received for said property.
On September 15, 1926, the trustee, after notice by letter to such persons as he believed would attend and bid, held a sale of said property at the Office of Frank Owen White, Esq., in Boston, and agreed, subject to confirmation by the eourt, to sell the real estate to one Albert C. Barley for $19,000, and all the personal property, except cash and acceounts receivable, to the Century Motor Truck Company for the sum of $47,100; said sales being made subject to confirmation by the court.
On September 21, 1926, the trustee filed a petition for confirmation of the last-named sales, and a hearing was had thereon before the referee.
At the hearing, Albert C. Barley offered $75,000 for both the real and personal property in its entirety, being $8,900 in excess of the total of the two offers which the trustee had last received, and for the confirmation of which he had filed a petition. At the same time a deposit of $7,500 was made by the said Barley in connection with his offer.
The Century Motor Truck Company was represented by counsel at this hearing. The said Albert C. Barley appeared in person and with counsel, and the Rutember Motor Company, which had made an offer of $50,000 for the property at a previous hearing, was also represented by counsel. Barley and the trus-: tee were sworn and examined and cross-examined, as appears by the certificate of the referee; and, after hearing evidence and arguments, the referee, September 24, 1926, ordered the petition for confirmation of the sales for $66,100, which had been made at the office of Mr. White, dismissed.
September 25, 1926, the trustee presented to the referee a petition for confirmation of the sale of both real and personal property, free and clear of all liens, to Albert G. Barley for $75,000, which said petition was allowed and the sale confirmed by the referee.
On October 4, 1926, the Century Motor Truck Company filed a petition for review of the orders of the referee, and requested the referee to annex to his certificate a transcript of the testimony, comprising 60 pages of typewritten matter taken before the referee at the hearing held September 24, 1926. This the referee declined to do, on the ground that all of the testimony material was presented by his certificate and comprised a summary required by General Order No. 27 in Bankruptey, which is as follows:
“When a bankrupt, creditor, trustee, or other person shall desire a review by the judge of any order made by the referee, he shall file with the referee his petition therefor, setting out the error complained of; and the referee shall forthwith certify to the judge the question presented, a summary of the evidence relating thereto, and the finding and order of the referee thereon.”
As upon a petition later filed with the judge of the District Court to recommit the referee’s certificate because of this refusal— this is assigned as error — we dispose of it here by saying that the certificate contained a sufficient summary of the evidence, which was a substantial compliance with this order.
On November 1, 1926, the District Court ordered, adjudged, and decreed that the order of the referee:
“(a) Dismissing the petition for confirmation of sales of real estate and personal property situated at Marion, 3hd.,” and
“(b) The order of the referee of September 25,1926, confirming sale of said property to Albert C. Barley, be and they hereby are confirmed.” „
A petition for rehearing was filed, which was denied by the District Court on November 19, 1926.
Section 70b of the Bankruptcy Act is as follows:
“All real and personal property belonging to bankrupt estates shall be appraised by three disinterested appraisers; they shall be appointed by, and report to, the court. Beal and personal property shall, when practicable, be sold subject to the approval of the court; it shall not be sold otherwise than subject to the approval of the court for less than seventy-five per centum of its appraised value.” Comp. St. § 9654.
The real estate in question was appraised ' for $47,250, and the personal property for $116,783, an aggregate of $164,033.
The question presented is within a small compass. There is no serious contention that the referee erred in refusing to confirm1' the sales at public auction, but it is contended that the sales made by the trustee at the office of Mr. White in Boston, and authorized by the referee in bankruptcy on condition that the sale should not be made for less than $50,000, should have been confirmed by the District Court. While the highest bidder for property offered for sale by a trustee in bankruptcy is entitled to have his bid accepted by the trustee and reported for confirmation, he is not a purchaser, and is not vested thereby with even an equitable title in the property until the sale is confirmed. See In re Wolke Lead Batteries Co. (C. C. A.) 294 F. 509.
The sale which the referee refused to confirm, and which refusal, upon review, was confirmed by the court, was for much less than 75 per centum of the appraised value in the ease of both the real estate and the personal property. In such case the Bankruptcy Act has lodged the confirmation of such a sale within the discretion of the District Court, and, unless there is an abuse of this discretion, the order of the District Court is not subject to review. See, in this circuit, In re Shea, 126 F. 153; Jacobsohn v. Larkey (C. C. A. 3) 245 E. 538, L. R. A. 1918C, 176; In re Wolke Lead Batteries Co. (C. C. A. 6) supra.
Our decision in this case should not be taken as an approval of a general practice of upsetting sales which have taken place in the regular course of winding up a bankruptcy estate. Jacobsohn v. Larkey (C. C. A.) 245 E. 538, 541, L. R. A. 1918C, 176. This practice was long ago found in England to be an improvident one, as it discouraged bidding at sales. Graffam v. Burgess, 117 U. S. 180, 191, 6 S. Ct. 686, 29 L. Ed. 839; White v. Wilson, 14 Ves. 151.
The decree of the District Court is affirmed, with costs to the appellee.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_numresp
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
COMMISSIONER OF INTERNAL REVENUE v. EVANS.
No. 4731.
United States Court of Appeals Tenth Circuit.
March 13, 1954.
S. Dee Hanson, Washington, D. C. (H. Brian Holland, Ellis N. Slack, Lee A. Jackson and James Q.' Riordan, Washington, D. C., were with him on the brief)', for petitioner.
Sydney E. Shuteran, Denver, Colo., for respondent.
Before BRATTON, MURRAH and PICKETT, Circuit Judges.
MURRAH, Circuit Judge.
The question presented here is whether monthly support payments received by respondent-taxpayer in the taxable year 1948, pursuant to a property settlement agreement executed by taxpayer and her then husband incident to an interlocutory decree of divorce in the State of Colorado, constitute taxable income to her under Section 22 (k) of the Internal Revenue Code, 26 U.S.C.A. § 22. The facts were adopted by the Tax Court as stipulated, and from a decision holding that such payments were not taxable to her, the Commissioner has appealed.
Taxpayer and John Evans, Jr., were married in Denver, Colorado in 1938, and lived continuously together as husband and wife until 1947, when she filed an action for divorce in the District Court of the City and County of Denver. On December 5, 1947, the parties entered into a property settlement agreement providing in part that pending the hearing on the application for divorce, the husband would pay to the wife the sum of $625 per month “to be used by her as alimony pendente lite”, and $125 per month for each of their three minor children; that these payments would terminate whenever a final decree of divorce in the action then pending should be entered; and that if a final decree of divorce was for any reason not entered within one year from date, or either party died before the said final decree, the agreement should cease and terminate and the rights of the parties should remain as they were prior to the execution of the agreement. The agreement then went on to provide for the terms and conditions of settlement upon the entry of a final decree of divorce.
On December 10, 1947, the Colorado trial court entered its “Interlocutory Decree in Divorce”, wherein it found that a divorce should be granted the wife, and ordered that “an interlocutory decree of divorce is hereby entered dissolving the marriage of plaintiff and defendant six months after the date of this interlocutory decree. It is expressly decreed by the count that during such six months period after the signing of this Interlocutory Decree the parties hereto shall not be divorced; shall still be husband and wife, and neither party shall be competent to contract another marriage anywhere during such period. * * * The court further decrees that after six months from the date hereof this Interlocutory Decree shall be and become a final decree of divorce and the parties shall then be divorced, unless this Interlocutory Decree shall have been set aside, or an appeal has been taken, or a writ of error has been issued.” On June 11, 1948, a final decree of divorce was entered.
In her income tax return for the year 1948, the taxpayer did not include as taxable income payments received from her husband under their agreement during the six months’ period after entry of the interlocutory decree prior to the final decree of divorce, but only those amounts received after the entry of the absolute decree. The Commissioner determined a deficiency on the ground that when the taxpayer received such payments, she was “legally separated” within the meaning of Section 22 (k) and the income was therefore taxable to her.
Following its decision in Eccles v. Commissioner, 19 T.C. 1049, later affirmed in Commissioner of Internal Rev. v. Eccles, 4 Cir., 208 F.2d 796, the Tax Court held that since the interlocutory decree did not immediately terminate the marriage, the wife was not “divorced or legally separated from her husband under a decree of divorce or of separate maintenance” within the meaning of Section 22 (k), and therefore such amount received by her under the interlocutory decree was not taxable income to her. In the Eecles ease, the taxpayer’s wife was granted an interlocutory decree of divorce in the State of Utah, to become final after six months. The Tax Court held that under established Utah law, the taxpayer and his wife were still husband and wife until the final decree was entered, and were therefore entitled to file a joint income tax return covering the six months period under Section 51(b) of the Internal Revenue Code. In applying the reasoning of that case to the instant case, the Tax Court was of the opinion that although they arose under different sections of the Code, the basic question involved was the same. And, the law of Utah and Colorado in respect to the effect of interlocutory decrees of divorce being similar in text and construction, the reasoning in the Eccles case is apposite to the question involved here.
Chapter 56, Vol. 2, 1935 Colorado Stats. Annotated provides in part as follows: “§ 13. * * * If however, a divorce ought to be granted, the court shall enter an interlocutory decree, providing that the parties to such action shall be divorced six (6) months after the date of such interlocutory decree. During such six (6) months period the parties shall not be divorced and neither party shall contract another marriage during such period. During such period the court may, upon motion or petition of either party to the action, or upon its own motion, for good cause shown after a hearing, set aside such interlocutory decree. * * * ”
In construing this statute, the Colorado courts have consistently held that an interlocutory decree of divorce does not dissolve the marriage relationship nor alter the marital status; that during the period after the" interlocutory decree is entered, the parties might lawfully cohabit together as husband and wife, Doty v. Doty, 103 Colo. 543, 88 P.2d 573; that the action is immediately abated by death of one of the parties pri- or to the final decree of divorce, and a wife’s right to inherit her husband’s property survives an interlocutory decree of divorce. In re McLaughlin’s Estate, 117 Colo. 67, 184 P.2d 130.
Manifestly, under Colorado law, the parties here were not “divorced” upon entry of the interlocutory decree, but the Commissioner contends that the term “decree * * * of separate maintenance” as used in Section 22 (k) should be broadly construed to include all persons separated by some decree, regardless of the language used. It is argued that where, as here, a marriage has deteriorated to the point where the innocent spouse seeks the intervention of a court, and the court finds that the offending spouse has broken the marriage contract by his conduct and the innocent spouse is entitled as a matter of law to live separately without being guilty of desertion, then for the purposes of tax law, an “interlocutory decree of divorce” is in effect a “legal separation”.
Obviously, the terms “separate maintenance” and “interlocutory decree” as used in Colorado law are not synonymous. An interlocutory decree under Section 13, Chapter 56, C.S.A.1935, is intended to encourage a reunion of the parties — a healing of the breach — a period during which the parties may become reconciled; while “separate maintenance” under Section 25, Chapter 56 of the Colorado statute is intended to effect a permanent status — a final divorce from bed and board. Doty v. Doty, supra; 17 Am.Jur. p. 362, Sec. 435. Both of these terms have specific legalistic meanings, and if Congress had meant to include “interlocutory decree” in Section 22 (k), it certainly would have been a simple matter for it to do so. We agree with the Tax Court that an interlocutory decree under Colorado law is not “separate maintenance” within the meaning of Section 22 (k).
The decision is affirmed.
. “Section 22. Gross income. * * * * *
“(k) Alimony, etc., income. In the case of a wife who is divorced or legally separated from her husband under a decree of divorce or of separate maintenance, periodic payments (whether or not made at regular intervals) received subsequent to süeh decree in discharge of, or attributable to property transferred (in trust or otherwise) in discharge of, a legal obligation which, because of the marital or family relationship, is imposed upon or incurred by such husband under such decree or under a written instrument incident to such divorce or separation shall be includible in the gross income of such wife, and such amounts received as are attributable to property so transferred shall not be in-cludible in the gross income of such husband. * * * ”
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_usc1sect
|
431
|
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 16. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
O. V. OYLER, Appellant, v. Douglas McKAY, Secretary of the Department of Interior, a United States Government Agency; and Lewis L. Strauss, H. D. Smith, Joseph Campbell, Dr. Henry D. Smyth, Thomas E. Murray and Eugene M. Zuchert, Atomic Energy Commission, a United States Government Agency, Appellees.
No. 5151.
United States Court of Appeals Tenth Circuit.
Oct. 27, 1955.
Richard J. Hogan, Salt Lake City, Utah, for appellant.
Fred W. Smith, Washington, D. C. (Perry W. Morton, Asst. Atty. Gen., A. Pratt Kesler, U. S. Atty., Salt Lake City, Utah, Roger P. Marquis, Atty., Department of Justice, Washington, D. C., were with him on the brief), for appellees.
Before BRATTON, MURRAH, and PICKETT, Circuit Judges.
PICKETT, Circuit Judge.
The appellant and three others brought this suit against Douglas McKay, Secretary of the Department of Interior, a United States Government Agency, and Lewis L. Strauss, H. D. Smith, Joseph Campbell, Dr. Henry D. Smyth, Thomas E. Murray, and Eugene M. Zuchert, Atomic Energy Commission, a United States Government Agency, to set aside and declare an order and judgment of the Secretary of the Department of Interior fraudulent and void; and for a decree that 'the plaintiffs’ location of a mining claim was a good, valid and subsisting mineral location; that the plaintiffs be adjudged the right of possession thereof including the right to develop, explore, mine, remove and sell the ore therein; and that the defendants be restrained from interfering with the plaintiffs’ possession of said mining claim. The trial court entered a judgment in favor of the defendants and against the plaintiffs upon the ground that the United States was an indispensable party and had not consented to be sued.
The complaint alleges that Douglas McKay is the Secretary of Interior, a Government Agency of the United States, and that the remaining defendants compose the Atomic Energy Commission, a Government Agency of the United States; that on or about May 26, 1937, the plaintiffs entered upon the unreserved, unoccupied public domain of the United States in an unknown mining district situated in the “Grand Wash Canyon” in Utah, and in accordance with the law, located a mining claim containing a vein of valuable mineral; and that the plaintiffs caused the notice of the location of this mining claim to be duly recorded in the office of the County Recorder of Wayne County, Utah.
It is alleged that on or about August 2, 1937, the President of the United States by proclamation withdrew and set apart the area embracing the “Grand Wash Canyon” as a national monument in accordance with the authority granted him by statute; that on November 25, 1941, pursuant to the statute relating to the control and management of public lands, the Secretary of the Interior through his subordinate, the Commissioner of the General Land Office, filed an action in the District Land Office to adverse the rights of the locators of the claim on the grounds that the lands embraced within the claim were nonmineral in character, and that minerals had not been found within the limits of the claim in sufficient quantities to constitute a valid discovery ; and that all of the plaintiffs, except the appellant Oyler, through ignorance, inadvertence and mistake appeared at the local land office of the register prior to the default date thereof, made an oral protest thereto, and asserted the validity of their claim. Oyler was never served with notice of the adverse proceedings.
The complaint further alleges that on or about October 7, 1942, the then Secretary of the Department of Interior, through the Commissioner of the General Land Office, arbitrarily and fraudulently and contrary to the United States Constitution caused to be entered in the adverse proceedings a default judgment against the plaintiffs voiding and vacating the mining claim location, on the grounds that the claim was nonmineral, and that minerals in sufficient quantities to constitute a valid discovery had not been found within the limits of the claim; that plaintiffs appealed from that decision, and on March 7, 1950, the Secretary of the Department of Interior through the Solicitor of the Department of Interior, affirmed the decision.
The plaintiffs then allege that on or about April, 1952, the Secretary of the Interior transferred the mineral properties to the Atomic Energy Commission, the members of which are named as defendants in the instant action.
The trial court denied a motion to quash the service of summons and to dismiss the complaint on the grounds that the action was in personam; that the defendants were inhabitants of the District of Columbia; and that the court could not make valid service upon or acquire jurisdiction of the defendants. The defendants answered and alleged, inter alia, that the action was in effect a suit against the United States, since its property and property rights and interests were directly involved, and that it should be dismissed because the United States had not consented to be sued. A motion for summary judgment was denied.
The case was tried and the trial court found that the United States was a necessary party defendant to the suit; that the United States could not be made a party defendant because it had not given its consent to be sued in' an action of this nature; and concluded that the defendants were entitled to a judgment in their favor.
This court has recently had occasion to pass upon the precise question in issue in State of New Mexico v. Backer, 10 Cir., 199 F.2d 426, wherein it was held that the enjoining of the construction engineer and certain employees of the Bureau of Reclamation from reducing the water level of a reservoir operated by government employees interfered with the management and control of property of the United States and raised questions of law and fact upon which the United States would have to be heard.
In that case, this court relied upon Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628, wherein the Supreme Court reviewed the many cases involving the question of when an action against a government officer is in fact one against the United States. The court concluded that the two types of cases in which an action may be maintained against Government officers are where the officer is acting beyond his delegated power and when the statutes or order conferring power upon the officer to act is unconstitutional or invalid. The test is whether by obtaining relief against the officer, relief will not, in effect, be obtained against the sovereign.
In this case, Oyler sought to set aside the order of the Secretary of the Department of Interior, have his location of a mining claim decreed to be valid, and be adjudged the right to develop, explore, mine, remove, and sell the ore therein. The very purpose of the action is to determine whether Oyler’s mining claim was sufficient to entitle him to possession and to take ore from land which is admittedly a part of the public domain and now a national monument. The action attempts to restrain government officials from exercising valid governmental authority by virtue of their respective offices over lands belonging to the United States. No contention is made that the officers acted beyond their statutory authority, or that the law or orders under which they acted were unconstitutional. The relief sought will affect land and ore belonging to the United States, and the latter has not consented to be sued. In the absence of such consent, the suit must fail. Larson v. Domestic & Foreign Commerce Corp., supra; United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058; United States v. Shaw, 309 U.S. 495, 60 S.Ct. 659, 84 L.Ed. 888; Morrison v. Work, 266 U.S. 481, 45 S.Ct. 149, 69 L.Ed. 394; Goldberg v. Daniels, 231 U.S. 218, 34 S.Ct. 84, 58 L.Ed. 191; State of New Mexico v. Backer, supra.
Affirmed.
. 16 U.S.C.A. § 431.
. In the Backer case we said that it is “well settled that whether an action is one against the sovereign is determined not by the party named as defendant, but by the result of the judgment or decree which may be entered.” [199 F.2d 427.]
. In Morrison v. Work, supra, the Supreme Court said [266 U.S. 481, 45 S. Ct. 151]: “The claim of the United States .is at least a substantial one. To interfere with its management and disposition of the lands or the funds by enjoining its officials, would interfere with the performance of governmental functions and vitally affect interests of the United States. It is therefore an indepensable party to this suit. It was not joined as defendant. Nor could it have been, as Congress has not consented that it be sued. The bill so far as it complains of acts done pursuant to the later legislation, was properly dismissed for this reason, among others.” (Footnotes omitted.)
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 16? Answer with a number.
Answer:
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songer_appel1_2_3
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A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". Your task is to determine what subcategory of private association best describes this litigant.
NATIONAL COAL ASSOCIATION and American Mining Congress, Appellants, v. Manuel LUJAN, Jr., Secretary of the Interior, et al., Appellees.
No. 91-5328.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 22, 1992.
Decided Dec. 1, 1992.
As Amended Dec. 1, 1992.
J. Michael Klise, with whom John A. Macleod, Thomas C. Means, Edward M. Green, Stuart A. Sanderson, and Harold P. Quinn, Jr., Washington, D.C., were on the brief, for appellants.
Peter A. Appel, Attorney, Dept, of Justice, with whom Dirk D. Snel, Attorney, Dept, of Justice, Washington, D.C., were on the brief, for appellees.
Before: RUTH BADER GINSBURG, WILLIAMS, and HENDERSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.
RUTH BADER GINSBURG, Circuit Judge:
This is an action for judicial review of regulations issued by the Secretary of the Interior on February 8, 1988 under the Surface Mining Control and Reclamation Act (SMCRA), 30 U.S.C. §§ 1201 et seq. (1988). Plaintiffs-Appellants are two associations of coal producers, the National Coal Association and the American Mining Congress (NCA/AMC); the challenged regulations, implementing SMCRA § 518(f), 30 U.S.C. § 1268(f), provide for the assessment of individual civil penalties against officers, directors, and agents of corporate mine operators. The district court, in an unelaborated one-sentence order responding to cross-motions for summary judgment, held for the Secretary. National Coal Association v. United States Department of the Interior, No. 88-951 (D.D.C. July 19, 1991).
In this appeal, NCA/AMC first seek an order remanding the case to the district court for an explanation of its decision. Alternately, in the event that we reach the merits, NCA/AMC urge us to set aside the regulations on individual civil penalties as arbitrary, capricious, and inconsistent with law. The Secretary initially contends that the plaintiff trade associations lack standing to sue; on the merits, the Secretary maintains that the regulations are sound and should be affirmed. We hold that the trade associations NCA/AMC have standing to sue. Because a remand would entail unwarranted protraction, we reach the merits and uphold the regulations.
I. Background '
Enacted “to protect society and the environment from the adverse effects of surface coal mining operations,” 30 U.S.C. § 1202(a), SMCRA establishes an enforcement scheme that includes civil and criminal penalties. See 30 U.S.C. § 1268. This dispute involves the relationship between two of SMCRA’s civil penalty provisions and the regulations issued under each. The first, which the Secretary calls “a primary enforcement mechanism,” see Brief for the Federal Appellees at 4, provides for civil penalties against holders of strip-mining permits:
[A]ny permittee who violates any permit condition or who violates any other provision of this subchapter, may be assessed a civil penalty by the Secretary.... Such penalty shall not exceed $5000 for each violation. Each day of continuing violation may be deemed a separate violation for purposes of penalty assessments. In determining the amount of the penalty, consideration shall be given to the permittee’s history of previous violations at the particular surface coal mining operation; the seriousness of the violation, including any irreparable harm to the environment and any hazard to the health or safety of the public; whether the permittee was negligent; and the demonstrated good faith of the permittee charged in attempting to achieve rapid compliance after notification of the violation.
30 U.S.C. § 1268(a) (subsection (a)). The parties refer to subsection (a) as the “corporate civil penalties” provision.
Supplementing the provision on corporate civil penalties, and directly at issue in this litigation, SMCRA authorizes the imposition of civil penalties on individual representatives of corporate permittees:
Whenever a corporate permittee violates a condition of a [Federal] permit[,]... any director, officer, or agent of such corporation who willfully and knowingly authorized, ordered, or carried out such violation... shall be subject to the same civil penalties, fines, and imprisonment that may be imposed upon a person under subsections (a) and (e) [criminal penalties] of this section.
30 U.S.C. § 1268(f) (subsection (f)). The Secretary refers to subsection (f), along with provisions for injunctive relief, criminal prosecution, and permit suspension or revocation, as “alternate enforcement mechanisms.” See Brief for the Federal Appellees at 4-6.
In 1979, the Office of Surface Mining Reclamation and Enforcement (OSMRE, a constituent of the Department of the Interior) issued permanent program regulations to implement subsection (a)’s corporate civil penalty prescriptions. See 44 Fed.Reg. 15,461 (1979), codified at 30 C.F.R. § 845 (1991). Under the subsection (a) regulations, OSMRE determines the gravity of the permit holder’s violation and sets the amount of assessed penalties according to a “point system.” Under the point system, a permittee is assigned a score in four categories derived from the factors listed in subsection (a): (1) history of previous violations; (2) “seriousness” of the violation (determined in part by “the extent of potential or actual damage, in terms of area and impact on the public or environment”); (3) degree of any negligence or greater fault involved in the violation; and (4) good faith in attempting to achieve compliance. See 30 C.F.R. § 845.-13. The point total for the violation determines the amount of the permittee’s penalty. See 30 C.F.R. § 845.14 (penalty table).
Upon finding that a penalty is in order, OSMRE sends the permittee a “proposed assessment”; within 30 days of receipt of OSMRE's proposal, the permittee may request an “assessment conference” to review the proposal, informally, with an OSMRE “conference officer." See 30 C.F.R. § 845.18. Within 30 days after the assessment conference is held, the conference officer “shall either... [s]ettle the issues” or “[a]ffirm, raise, lower, or vacate the penalty.” 30 C.F.R. § 845.18(b)(3). If dissatisfied with the conference outcome, the permittee may request a formal administrative hearing and, ultimately, petition for judicial review. See 30 C.F.R. § 845.19. Pending pursuit and completion of administrative and judicial review of a corporate penalty, the permittee must place in an escrow account the entire amount assessed by OSMRE. See 30 U.S.C. § 1268(c); 30 C.F.R. § 845.19.
The agency did not propose regulations to implement subsection (0, the individual civil penalties provision, until several years after it developed and installed the subsection (a) corporate civil penalties regulations. In 1980 and 1983, however, OSMRE issued successive internal directives “pro-vid[ing] guidance concerning implementation” of subsection (f). See, e.g., OSMRE Directive, Individual Civil Penalty Assessment (issued October 11, 1983), reprinted in Joint Appendix (J.A.) at 47. The directives described circumstances in which agency personnel should consider seeking individual civil penalties under subsection (f). See id., J.A. at 47-49 (listing “site criteria” and “individual criteria”). Under the heading “Procedures,” the directives stated: “Hearings and conference procedures for individual penalties will be the same as procedures developed for hearings and conferences for regular penalties.” Id., J.A. at 49.
In 1986, in response to a consent decree settling a “citizen suit” brought against the Secretary by environmental organizations, OSMRE proposed regulations implementing subsection (f). See 51 Fed.Reg. 46,838 (1986). These proposed regulations on individual civil penalties differed from the previously issued corporate regulations in two relevant respects. First, the individual penalty scheme did not provide for assessment conferences. Second, to set the amount of the penalty, the proposed subsection (f) regulations used, in lieu of a point system, a more open-ended balancing of the relevant statutory considerations, tailored to fit individuals. The proposed regulations delineated three factors: the individual’s involvement in previous violations; the seriousness of the violation; and the individual’s good faith in attempting to achieve rapid compliance. See 51 Fed.Reg. at 46,842. The “seriousness” criterion, as stated in the proposed individual regulations, contained a key parenthetical component, one that does not appear in the corporate regulations; the new component concerned the cost of reclamation:
(2) The seriousness of the violation... (as indicated by the extent of damage and/or the cost of reclamation), including any irreparable harm to the environment and any hazard to the health or safety of the public[.]
Id. (emphasis added). On February 8, 1988, with no alteration of the 1986 text significant here, OSMRE issued final regulations governing individual civil penalties. See 53 Fed.Reg. 3664 (1988), codified at 30 C.F.R. § 846 (1991).
Suing to set aside the final rule containing the individual penalty prescriptions, NCA/AMC trained their attack on the agency’s failure to include in the subsection (f) individual penalty regulations two key features included in the subsection (a) corporate penalty regulations: the assessment conference and the point system. See 30 U.S.C. § 1276(a)(1) (rules promulgated under SMCRA may be set aside on judicial review if they are “arbitrary, capricious, or otherwise inconsistent with law”). On cross-motions for summary judgment, and after full briefing by the parties, the district court ruled for the Secretary without stating reasons for the court’s decision.
II. Threshold Questions
A. Standing
The Secretary argues, for the first time in the case, that the two plaintiff trade associations lack standing to challenge the individual penalty regulations. In a nutshell, the Secretary points out that NCA/AMC’s members are coal companies. The challenged regulations, however, apply only to individuals. According to the Secretary, NCA/AMC have not demonstrated that regulations on penalties for individuals threaten the trade associations or their corporate members with any injury. We find utterly unpersuasive the Secretary’s endeavor in this context to divorce the corporation from those who act in its name.
We first recite settled law on the representational capacity of entities like NCA/ AMC. An association has standing if its members would have standing to sue in their own right; if it seeks to protect interests germane to its organizational purpose; and if individual members’ participation is not required for proper disposition of the litigation. See Hunt v. Washington State Apple Advertising Comm’n, 432 U.S. 333, 343, 97 S.Ct. 2434, 2441, 53 L.Ed.2d 383 (1977).
Insisting that NCA/AMC’s coal company members lack the causally-connected and redressable injury essential to standing, see Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984), the Secretary observes that penalties paid by individuals “do not increase the liability of [NCA/AMC member] coal companies.” Brief for the Federal Appellees at 17. The obligation of plaintiffs’ member companies to indemnify their officers and agents, the Secretary continues, “would not constitute sufficient injury because the extent of the member companies’ responsibility would be determined by independent action, namely the knowing and willful conduct of the members’ officers, directors, or agents.” Id. (citing Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42, 96 S.Ct. 1917, 1925-26, 48 L.Ed.2d 450 (1976)). Because a corporate entity ultimately can act only through a human agent, the Secretary’s argument appears more formal than substantial.
Arguably, NCA/AMC’s coal company members themselves could proceed on behalf of their officers, directors, and agents — the individuals who are subject to subsection (f) penalties — and the trade associations could stand in for those companies. See New York State Club Ass’n v. New York City, 487 U.S. 1, 9-10, 108 S.Ct. 2225, 2232, 101 L.Ed.2d 1 (1988) (an association composed of associations has standing to sue if the constituent associations would have standing to sue on behalf of their individual members); United States v. Westinghouse Electric Corp., 638 F.2d 570, 574 (3d Cir.1980) (corporation has standing to assert employees’ privacy rights implicated by administrative subpoena for employees’ medical records). We do not consider that prospect, however, because we are satisfied that the companies’ own economic interests are vitally affected by the subsection (f) regulations.
The very purpose of the individual penalties for which subsection (f) provides is to impel permittee compliance with SMCRA by giving those who act for the corporation strong cause to adhere to the law and to abate violations promptly. As the agency declared when it issued the regulations, the subsection (f) civil penalty rule is designed “to insure that the requirements of the Act are met”; OSMRE expected that a corporate official would opt to “order the corporate permittee to abate the violation” rather than face stiff individual penalties. 53 Fed.Reg. at 3672. Given the raison d’etre for individual penalties, moreover, it cannot be seriously doubted that coal companies fall within the zone of interests regulated by subsection (f). See Clarke v. Securities Industry Ass’n, 479 U.S. 388, 394-400, 107 S.Ct. 750, 754-57, 93 L.Ed.2d 757 (1987); see also 30 U.S.C. § 1276(a)(1) (affording right to judicial review of SMCRA rulemak-ings to “any person who participated in the administrative proceedings and who is aggrieved by the action of the Secretary”).
Unlike Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. at 42-44, 96 S.Ct. at 1926-27, the causal link between the allegedly unlawful action and the alleged injury here is not “speculative.” Sure and swift individual penalty imposition, the agency itself reasoned, would propel corporate action, thereby advancing the objectives Congress set in SMCRA. No one has suggested any cause to doubt the agency’s reasoning on this point. In short, the agency’s justification for rendering individual penalty enforcement more efficient and effective belies the standing objection it lately asserts.
In addition to the matter of member standing, the other requirements for associational standing are met. The interests the two plaintiff trade associations seek to protect are germane to their organizational goals of ensuring a favorable regulatory environment and economic health for coal companies. See Humane Society of the United States v. Hodel, 840 F.2d 45, 58 (D.C.Cir.1988) (“undemanding” germaneness test requires "mere pertinence between litigation subject and organizational purpose”). Finally, there is no apparent reason why this suit requires the participation of individual companies. NCA/ AMC have standing to sue.
B. Remand
NCA/AMC acknowledge that a remand for district court explanation of its summary judgment is not dictated by law. See Fed.R.Civ.P. 52(a) (stating that “[findings of fact and conclusions of law are unnecessary on decisions of motions under Rule... 56”). Nevertheless, the trade associations urge the large and practical importance to litigants and this court of explicitly reasoned decisionmaking in the court of first instance. A responsible accounting for its decision by the district court, we agree, informs both the litigants and this court; such an accounting serves the twin objectives of fairness to the parties and judicial economy. Our federal court system works best when the courts that form the foundation of the system give to the litigants and to the judges next in line the full benefit of their analysis. See, e.g., National Wildlife Fed’n v. Hodel, 839 F.2d 694 (D.C.Cir.1988) (affirming in large part several district court decisions that substantially reduced number of issues in controversy); In re Korean Air Lines, 829 F.2d 1171 (D.C.Cir.), affirming order and adopting opinion of district court in 664 F.Supp. 1488 (D.D.C.1987), aff'd sub nom. Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 109 S.Ct. 1676, 104 L.Ed.2d 113 (1989); Universal Health Servs. of McAllen, Inc. v. Sullivan, 770 F.Supp. 704 (D.D.C.1991), aff'd mem., 978 F.2d 745 (D.C.Cir.1992).
In this case, however, several considerations lead us to resist a remand. The issues presented are few and clearly defined; the case has been well briefed and argued; it is our obligation in any event to review the administrative record de novo, and here that record is not dense. Cf. Randolph-Sheppard Vendors of America, Inc. v. Harris, 628 F.2d 1364, 1368 (D.C.Cir.1980) (refusing to remand for district court clarification where no facts were in dispute and record was adequate to enable this court to review agency rules de novo). Mindful of the years it has taken to complete the SMCRA penalty provision rulemakings, and unwilling further to delay final decision on the regulations, we proceed to the merits of NCA/AMC’s case.
III. Validity of the Subsection (f) Regulations
NCA/AMC portray the Secretary’s decision not to include the assessment conference procedure or the point system in the subsection (f) regulations as a “reversal of the agency’s former views”; under Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto Ins. Co., 463 U.S. 29, 41-42, 103 S.Ct. 2856, 2865-66, 77 L.Ed.2d 443 (1983) (State Farm), NCA/AMC assert, such a reversal must be supported by “reasoned analysis.” The Secretary responds that because formal regulations had never before been issued under subsection (f), OSMRE was working on a clean slate; hence, OSMRE was not required to justify its choice not to copy exactly the procedures adopted years earlier in the subsection (a) regulations. See State Farm, 463 U.S. at 42, 103 S.Ct. at 2866 (“[A]n agency changing its course by rescinding a rule is obligated to supply a reasoned analysis for the change beyond that which may be required when an agency does not act in the first instance.”) (emphasis added). Neither side, we conclude, has it entirely right.
Subsections (a) and (f) are interrelated and cross-referenced; the statutory provision applicable to individuals incorporates, in part, those governing corporations. Moreover, the agency relied on the corporate procedures when it framed interim, internal directives on individual penalties. See supra pp. 1550-51. This statutory relationship and regulatory history made it incumbent on OSMRE to say why it chose to depart from the corporate scheme when it adopted the individual regulations.
But concise statement would do. The challenged individual penalty regulations were not a volte-face as was the change at issue in State Farm. See 463 U.S. at 41-42, 103 S.Ct. at 2865-66. There, an agency abandoned without cogent explanation a policy option it had earlier studied extensively and strongly endorsed. See id. at 46-51, 103 S.Ct. at 2868-71. Here, by contrast, the agency has not abandoned or rescinded a policy; it has simply refused permanently to extend to individual penalty enforcement certain policy approaches developed in the context of corporate penalties. In promulgating the regulations on corporate penalties, the agency did not purport to address individual penalties as well. OSMRE’s initial directives on individual penalties were notably provisional in character. In this setting, the burden of explanation derived from State Farm is relatively light.
A. Assessment Conferences
The assessment conference procedure was part of the initial corporate penalty scheme in 1977, and was incorporated into the permanent program regulations issued in 1979. See 30 C.F.R. § 723.18 (1991); 30 C.F.R. § 845.18 (1991). The preamble to the 1977 interim regulations described the assessment conference as an opportunity “to discuss informally the facts relevant to the proposed assessment and reach an agreement on the proper assessment without a formal hearing.” 42 Fed. Reg. 62,639, 62,672 (1977). In its discussion of the 1979 corporate penalty regulations, the agency further explained:
The conference procedure insures the Office of correct assessments by taking into account good faith and any other relevant information. This prevents the underpayment or overpayment of the penalty into escrow, and provides a much greater measure of due process to the operator, who is assured of an opportunity to be heard and to obtain a correction of the penalty before having to put his money into escrow.
44 Fed.Reg. 14,902, 15,309 (1979).
The subsection (f) individual penalty regulations proposed in 1986 included no assessment conference. OSMRE explained that the basic reason for the conference was inapplicable to subsection (f) penalties because individuals, unlike corporate violators, were not required to prepay penalties into escrow pending administrative and judicial review. See 51 Fed.Reg. at 46,841. In response to a commenter who had suggested that the subsection (f) regulations provide for assessment conferences, the agency comprehensively explained:
The rules provide an adequate opportunity for administrative review through [the Department of the Interior’s Office of Hearings and Appeals (OHA)]. No need exists to create an additional level of administrative review in OSMRE. As was previously stated, the corporate official is not required to pre-pay the assessment as a prior condition to requesting a hearing with OHA; thus no due process violation exists. Moreover, the notice of proposed assessment against the corporate official will contain a detailed narrative explanation of the reasons for the assessment and the amount assessed, so that the corporate official will clearly understand why OSMRE believes that an individual civil penalty is justified. It has been OSMRE’s experience with corporate violations that almost everyone requests both an assessment conference and a hearing «with OHA, so that rather than eliminate administrative waste and inconvenience a conference simply would add another step in the process and increase the government’s administrative costs. Finally, an individual civil penalty will be assessed only for knowing and willful conduct. Questions concerning such conduct may be better resolved by an administrative law judge, rather than an assessment conference officer.
53 Fed.Reg. at 3671. There is no need for more words on this issue. This uncommonly concise, complete and convincing agency explanation fully satisfies State Farm’s demand for “reasoned analysis.” 463 U.S. at 42, 103 S.Ct. at 2866.
B. The “Same Penalties” Clause of Subsection (f)
Subsection (f) declares individual directors, officers, or agents subject to the “same civil penalties, fines, and imprisonment that may be imposed upon a person under subsections (a) and (e) of this section.” 30 U.S.C. § 1268(f) (emphasis added). NCA/AMC argue that OSMRE ignored this requirement when it adopted procedures for setting the amounts of individual penalties that did not conform to the procedures previously established for corporate penalties. In particular, NCA/AMC attack the agency’s failure to use the point system in the subsection (f) penalty scheme and its adoption of a novel measure of “seriousness” explicitly based on reclamation costs.
SMCRA is administered by an office of the Department of the Interior. We must defer to that agency’s interpretation of the “same penalties” provision unless the agency's reading is contrary to the statute’s instruction, or is unreasonable. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984). In promulgating the individual penalty regulations, OSMRE explained that it construed the subsection (a) “same penalties” language “to mean that the relevant criteria of [subsection (a)] are to be applied, and that the daily ceiling in [subsection (a) ] on the amount of the penalty must be observed when assessing an individual civil penalty.” 53 Fed.Reg. at 3669. But, the agency added, the “same penalties” provision does not require “the amount of the penalty assessed against the individual to be the same as that assessed against the corporation.” Id.
We find no explicit or implicit instruction in subsection (f) telling us whether the “same penalties” requirement means that the corporate and individual penalty assessments must be calculated using the identical methodologies, or whether, as the agency maintains, “same penalties” means only that the criteria of subsection (a) must also be used in subsection (f) analysis and that the penalty ceilings must be the same. The text of the statute does make it plain that the factors for assessing corporate and individual penalties are not identical; notably, the corporate provisions require consideration of “whether the permittee was negligent,” while the subsection (f) provisions are inapplicable unless the individual director, officer, or agent acted “willfully and knowingly.” This difference heightens our skepticism regarding the trade associations’ position that Congress intended the “same penalties” language to require precisely parallel assessment methodologies.
NCA/AMC have indicated what Congress might have said to convey the meaning the trade associations urge. Subsection (f) uses the words “same civil penalties.” On brief, NCA/AMC translate these words to command the same “civil penalty scheme." Brief of Appellants at 16 (emphasis added). Nothing coming from Congress obliged the agency to agree. In sum, the statute is silent on the methods the agency should use in fixing the amount of the penalty, and OSMRE reasonably concluded that the “same penalties” phrase did not require adoption of the point system for individual penalties. We take up infra at p. 1556 NCA/AMC’s further argument that, even if not ruled out by statute, the agency’s abandonment of the point system in the individual penalties regulation was arbitrary and capricious.
We treat next NCA/AMC’s statutory objection to OSMRE’s use of reclamation costs in the individual penalty assessment calculus. The corporate penalty regulations assign gravity-of-violation points for seriousness based on “the extent of the potential or actual damage, in terms of area and impact on the public or environment.]” 30 C.F.R. § 845.13(b)(2)(h) (1991). The individual penalty regulations include as a measure of the seriousness of a violation “the cost of reclamation.” 30 C.F.R. § 846.14(a)(2) (1991). We see no reason why the “cost of reclamation” does not fit within the statutory criterion of “seriousness” or why the agency should be locked into the subsection (a) regulations’ formulation of that criterion. See Chevron, 467 U.S. at 863-64, 104 S.Ct. at 2792 (“An initial agency interpretation is not instantly carved in stone. On the contrary, the agency, to engage in informed rulemaking, must consider varying interpretations and the wisdom of its policy on a continuing basis.”). Again, we agree with the agency that the “same civil penalties” language of subsection (f) does not mandate the degree of conformity NCA/AMC ask us to impose.
C. Rationality of Reclamation Costs
Having concluded that the statute did not bar OSMRE’s departures from the corporate penalties regulation when it framed the individual penalties regulation, we consider, finally, NCA/AMC’s charges that the agency’s resort to reclamation costs and its omission of the point system were inadequately explained. When it issued the subsection (f) individual penalty regulations, OSMRE stated that, in its view, “the amount of money it will cost to abate the violation and/or reclaim the affected area” could serve as “[o]ne accurate indicator” of the extent of environmental damage. 53 Fed.Reg. at 3669. OSMRE then explained that using reclamation costs in assessing penalties appropriately advanced a statutory scheme in which individual penalties are an alternative mechanism of enforcing permittee compliance:
OSMRE intends in some instances to propose an individual civil penalty which equals or exceeds the cost of abating the violation under the theory that it would be more economical for the corporate official to order the corporate permittee to abate the violation than to pay the penalty....
53 Fed.Reg. at 3672. The agency thus justified the reclamation costs standard as an incentive for corporate officials to ensure compliance with SMCRA. We see nothing unreasonable here. Again, we cannot fault the agency, in face of the rationality of its position, simply because the regulations on corporate penalties do not similarly refer to reclamation costs.
D. Rationality of Omitting Point System
Relying once more on State Farm, NCA/AMC contend that OSMRE failed adequately to explain why the point system, although used in the regulations governing corporate penalties, was not used in the individual penalty regulations. The trade associations feature statements made in 1979 by then Acting Secretary James A. Joseph when the subsection (a) regulations issued. The Acting Secretary praised the point system as “the only adequate way to achieve rational and consistent assessments” and said that “[cjareful thought” had been given to the weights assigned the respective criteria. 44 Fed.Reg. at 15,305-06. NCA/AMC argue that the point system could have accounted for relevant differences between individuals and corporations, and underscore that the subsection (a) point system was based on MSHA regulations, which apply to corporate and individual penalties alike. See id.
When it promulgated the individual penalty regulations in 1988, OSMRE explained that, based on an examination of “existing rules and policies related to the assessment of civil penalties,” the point system
does not appear practical for, nor strictly applicable to, the assessment of individual civil penalties [and] does not give the Secretary sufficient flexibility to assess a penalty which fairly considers the particular actions or inactions of an individual. For example, [the corporate penalty regulations] consider the history of the per-mittee’s previous violations without respect to the individual’s involvement with them.
53 Fed.Reg. at 3664. The agency thus decided that the point system applicable to corporate violators was inappropriate for individual violators. The path the agency has taken on this point “may reasonably be discerned.” See State Farm, 463 U.S. at 43, 103 S.Ct. at 2867 (quoting Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 442, 42 L.Ed.2d 447 (1974)). Substantial modifications would have been required to create a point system applicable to subsection (f) cases. In addition to modifying the history-of-previous-violations criterion, a point system for individuals would have to adjust for the different mens rea standard (individual violations, but not corporate violations, require knowing and willful misconduct). The agency’s new emphasis on reclamation costs would also require attention. See 53 Fed.Reg. at 3670 (“[T]he penalty assessed against the corporate per-mittee under the point system for the seriousness of the violation in many instances may not cover the actual cost to repair the damage to the environment.”).
OSMRE evidently decided, in light of its experience administering the subsection (a) corporate penalty provisions, that the point system was not well suited to individual violations. We cannot gainsay that experience and judgment. Nor can we impose on the agency a requirement of perfect consistency. OSMRE may eventually decide to alter the corporate regulations once the individual provisions have been tested. NCA/AMC surely do not urge that the agency embark on such a change now.
Conclusion
NCA/AMC have standing to challenge the individual penalty regulations because those regulations directly affect the interests of the associations’ corporate members. While we and the litigants would have been aided by a reasoned district court decision, considerations specific to this case counsel against a remand. Because the individual civil penalty regulations under review are not “arbitrary, capricious, or otherwise inconsistent with law,” the judgment of the district court in favor of the Secretary is
Affirmed.
. The agency first promulgated rules under subsection (a) as interim regulations in 1977, see 42 Fed.Reg. 62,702 (1977), codified at 30 C.F.R. § 723 (1991); the 1977 interim regulations did not differ in relevant respects from the permanent program regulations issued in 1979.
. On the history of this "citizen suit,” see Save Our Cumberland Mountains v. Lujan, 963 F.2d 1541, 1544-46 (D.C.Cir.1992).
. We are obliged to consider the question, to the extent that it implicates our Article III adjudicatory authority, despite the Secretary’s failure to raise a standing objection in the district court. See, e.g., National Coal Ass’n v. Hodel, 825 F.2d 523, 526 (D.C.Cir.1987).
. NCA/AMC point out that, as OSMRE acknowledged, the subsection (f) regulations were "modeled in part" on regulations of the Mine Safety and Health Administration, see 53 Fed.Reg. 3664, 3665 (1988), and the MSHA regulations provide for assessment conferences even though prepayments into escrow are not required. NCA/AMC also note that the legislative history of SMCRA reveals that Congress viewed the Federal Coal Mine and Safety Act (the successor of which is administered by MSHA) as a model for SMCRA’s enforcement scheme. See S.Rep. No. 128, 95th Cong., 1st Sess. 58 (1977) ("Generally the enforcement provisions of this bill have been modeled after the similar provisions of the [FCMSA].’’). OSMRE’s use of MSHA regulations as a model, however, did not require it to adopt each approach taken by MSHA.
NCA/AMC also suggest that omission of settlement conference procedures is inconsistent with Congress’ desire to have fair penalty procedures, but the trade associations’ quotation from SMCRA's legislative history is incomplete. See id. (”[T]he most effective reclamation occurs when sound performance standards go hand in hand with strong, equitable enforcement mechanisms.”).
. More than seven years separated the promulgation of the permanent corporate regulations and the issuance of proposed individual regulations; we note, in view of this interval, that developments in regulatory philosophy and methods and the accumulation of experience may legitimately form the basis for shifts in agency policy. See State Farm, 463 U.S. at 42, 103 S.Ct. at 2866; see also id. at 59, 103 S.Ct. at 2875 ("A change in administration brought about by the people casting their votes is a perfectly reasonable basis for an executive agency's reappraisal of the costs and benefits of its programs and regulations.") (Rehnquist, J., dissenting in part).
. As we have pointed out in relation to assessment conferences
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". What subcategory of private association best describes this litigant?
A. Business or trade association
B. utilities co-ops
C. Professional association - other than law or medicine
D. Legal professional association
E. Medical professional association
F. AFL-CIO union (private)
G. Other private union
H. Private Union - unable to determine whether in AFL-CIO
I. Public employee union- in AFL-CIO (include groups called professional organizations if their role includes bargaining over wages and work conditions)
J. Public Employee Union - not in AFL-CIO
K. Public Employee Union - unable to determine if in AFL-CIO
L. Union pension fund; other union funds (e.g., vacation funds)
M. Other
N. Unclear
Answer:
|
songer_numresp
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. Richard A. LEONARD, Defendant-Appellant.
No. 78-5744.
United States Court of Appeals, Fifth Circuit.
Jan. 15, 1980.
Thomas M. West (Court-Appointed), Frank L. Derrickson, Atlanta, Ga., for defendant-appellant.
Julie E. Carnes, Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.
Before GODBOLD, RONEY and FRANK M. JOHNSON, Jr., Circuit Judges.
FRANK M. JOHNSON, Jr., Circuit Judge:
Richard A. Leonard was convicted of conspiracy to murder John Charles Widener, a fellow prisoner in the Atlanta Federal Penitentiary. He was also convicted of first degree murder and of conveying a weapon inside the prison. He was sentenced to serve a life sentence for conspiracy to commit murder, a life sentence for murder, and ten years for conveying the weapon.
Prior to trial, Leonard filed notice pursuant to Federal Rule of Criminal Procedure 12.2(b) that he intended to rely on a defense of insanity and that he intended to introduce expert testimony at trial relating to whether defendant possessed the mental state required before one can be convicted for the offense of murder or conspiracy to murder. After this motion and in response to a Government motion, made pursuant to Rule 12.2(c), the district court ordered Leonard to undergo an examination by a psychiatrist. Subsequent to the examination but before trial, however, defendant stipulated to his mental competency at the time of the alleged offenses and waived the issue. At trial the prosecution cross-examined Leonard as to the statements made by him to the prosecution psychiatrist.
On appeal, defendant raises several issues besides the one involving Rule 12. These concern the defendant’s motion for continuance, his request for a mental competency hearing [to determine competency to stand trial] and the court’s denial thereof, his motion to exclude evidence of a serological examination, the defendant’s access to witnesses, the abbreviated “Allen” charge given the jury and a portion of instructions given the jury. Because we find it necessary to reverse on the basis of the violation of Rule 12, and absent the likelihood of reoccurrence of these matters upon retrial, we do not reach these other issues.
Rule 12.2(b) requires a defendant to give notice prior to trial of his intention to rely on the defense of insanity. Subdivision “c” of this rule gives the trial court authority upon motion of the Government to order the defendant to submit to an examination by a psychiatrist designated by the court. Subdivision “c” also provides:
No statement made by the accused in the course of any examination provided for by this rule, whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding.
On its face, Rule 12.2(c) precludes the use upon the issue of guilt of statements made by Leonard in the course of the court-ordered psychiatric examination. The rule reflects a clear congressional intent that such statements not be used in a proceeding on the issue of guilt, but rather that they be used solely on the issue of sanity. As the legislative history makes clear, the purpose of Rule 12.2(c) is to secure the defendant’s Fifth Amendment right against self-incrimination. See Historical Note, following 18 U.S.C. Rule 12.2. Because sanity at the time of the commission of the alleged offense bears heavily on the issue of guilt, it implicates Fifth Amendment concerns. Thus, there is a sharp distinction between the use of the defendant’s statements made during a court-ordered psychiatric examination on the issue of sanity and the use, before the “fact finders” (here a jury), of incriminating statements made during such psychiatric examination on the issue of guilt and before guilt had been determined. See Gibson v. Zahradnick, 581 F.2d 75, 78 (4th Cir. 1978), cert. denied, 439 U.S. 996, 99 S.Ct. 597, 58 L.Ed.2d 669 (1979); United States v. Bennett, 148 U.S.App.D.C. 364, 370-72, 460 F.2d 872, 878-80 (D.C.Cir.1972). Therefore, central to the court’s authority to order a defendant to submit to a psychiatric examination is what we believe to be a clear understanding that the function of statements obtained during the examination is limited to the sanity issue.
There is another obvious rationale behind the rule. Both the Government and the defendant may need the assistance of expert testimony on the issue of sanity. In many cases, psychiatrists would not be able to obtain reliable testimony unless they were free to inquire into the prior conduct of the defendant, including his participation in the criminal activity with which he is charged. Moreover, the psychiatric inquiry cannot succeed unless the defendant cooperates; a defendant’s mental condition would not be discovered in many instances unless the psychiatrist can engage in a candid conversation with the defendant about it. Therefore, it may be appropriate and even in some cases necessary for the psychiatrist, when testifying on the issue of sanity, to disclose the criminal activity related to him by the defendant.
Thus, drawing on the language of the rule and the reasoning behind it, Leonard’s statements introduced at trial for impeachment purposes were inadmissible under Rule 12.2(c). To secure the reliability of the psychiatric interview as well as to prevent the infringement of the defendant’s Fifth Amendment rights, Leonard’s right to a competency determination to prove insanity cannot be conditioned on allowing the statements obtained at such a determination to be used by the Government for evidence on issues other than sanity. The legislative history of the rule supports this conclusion. The Conference Committee Notes, the Senate Debate, and the House Debate all indicate that facts related in a psychiatric examination should not be admissible on the issue of guilt and that the only purpose for which the statements can be admitted is to determine the issue of sanity. See Historical Note, supra; 121 Cong.Rec. 25843, 25986 (1975).
The Government urges us to adopt case law developed under 18 U.S.C. § 4244 as binding on the interpretation of Rule 12.2. Section 4244 permits the court to order a psychiatric examination in cases where there is a question concerning the competency to stand trial. Like Rule 12.2, Section 4244 precludes the admission into evidence on the issue of guilt any statement made by the defendant. We reject the assertion that the similarity in language in the two provisions demands application of precedent developed under Section 4244 to Rule 12.2 for several reasons.
To support its contention, the Government relies principally on United States v. Castenada, 555 F.2d 605 (7th Cir.), cert. denied, 434 U.S. 847, 98 S.Ct. 152, 54 L.Ed.2d 113 (1977). In that case, defendant appealed his conviction on the ground that 18 U.S.C. § 4244 precludes the admission into evidence on the issue of guilt of any statement made by the defendant. The Seventh Circuit held that Section 4244 does not bar the use of statements by the accused for purposes of impeachment. The court relied on the “Miranda exception to impeachment” to support the distinction between precluding the admission of evidence on the issue of guilt in the case in chief and admitting otherwise inadmissible evidence for purposes of impeachment. Id. at 609. See Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1970).
We do not find the reasoning applied in Castenada persuasive on the issue presented here. First, Castenada involved the construction of a separate statute, 18 U.S.C. § 4244, and not a Federal Rule of Criminal Procedure. Legislative history does not indicate that existing case law developed under Section 4244 was enacted into the rule; instead it emphasizes that the two provisions are to be treated separately. See Notes of Advisory Committee on Rules, Historical Note, supra.
Additionally, there is a reasoned basis to treat the prophylactic rule concerning a competency hearing less stringently than that concerning the insanity defense. Unlike an examination to ascertain competence to stand trial, the purpose of an interview to probe sanity at the time of the commission of the charged offense is to obtain from the accused information bearing directly on his guilt. See United States v. Malcolm, 475 F.2d 420, 425 (9th Cir. 1973). Insanity at the time of the offense charged involves an intent question that eventually may negate a basic element of the offense. Statements from the defendant are most critical to a determination of the intent question that is basic to the issue of mental capacity to commit a crime. Because such statements are focused on the time of the commission of the crime, there is a greater likelihood of soliciting statements that breach a defendant’s Fifth Amendment rights. On the other hand, determining the defendant’s capacity to stand trial under Section 4244 does not primarily concern his mental state at the time of the commission of the alleged crime but concerns his mental condition at the time of trial.
We conclude that a firm rule that prevents the prosecution from relying on statements of a defendant given during the course of a compelled psychiatric examination for impeachment purposes not only protects the integrity and reliability of the psychiatric interview but also prevents infringement on the defendant’s Fifth Amendment rights. We, therefore, give effect to the apparent command of Rule 12.-2(c). Accordingly, we REVERSE the ruling of the trial court and REMAND for a new trial.
. The following is a portion of the cross-examination of the defendant by Government counsel:
Q And you testified that you followed them as they went down toward the ramp and step area, with Joe-Joe hitting away, was that your testimony?
A I testified that he stabbed J.C. somewhere in the chest and J.C. bent over and spun around and started running and he ran out into — you got the ramp on this side and you got the walkway on this side and Joe-Joe was trying to hit him. J.C. started running and I stayed there I guess — I don’t have a recollection of a time I stood there but maybe a minute, five, ten minutes, fifteen seconds, but I went on out and when I got out they was halfway down what you call that walkway, you know. I stood a little bit down from the safety building and it was just like a shock, you know, just — I don’t know what you call it, you know. I don’t know what to do really.
Q Your recollection of all this is fairly detailed today, isn’t it?
A Well, I was there.
Q Do you recall being interviewed by a psychiatrist named Dr. Bachus on September 26, 1978?
A Yes, ma’am.
Q Do you recall him asking you, Mr. Leonard, what happened and do you recall answering “I don’t know what happened. A dark cloud just seemed to come down over me”?
A Yes, ma’am.
Q Do you recall him asking you to develop what you meant and do you recall answering “I saw Widener and Williams struggling. Williams ran toward him and grabbed Leonard,” you.
A Yes, ma’am.
Q That you recalled that next you pushed Williams away and then a dark shadow came over you and the next thing you knew Williams was pulling on you.
A Yes, ma’am.
Q A dark shadow came over you. The shadow lifted and it was “as if 1 opened my eyes and my last recollection was seeing Widener coming after me with a hatchet in his hand. After the shadow lifted, I was aware that I was still in the prison yard, was bleeding, had blood all over me. So I knew something had happened.” Do you recall stating that answer?
A Yes, ma’am.
Q That is not quite the same thing you testified today, is it?
A No, ma’am.
Q Has your recollection gotten a lot better in the last few weeks—
A No, ma’am.
Q —than when you talked to the doctor?
A No, ma’am.
Q You lied to the doctor then?
A Yes, ma’am.
Q You lied when you told him a dark cloud had come over you?
A Yes, ma’am.
Q You lied when you told him Mr. Widener was coming after you with a hatchet?
MR. DERRICKSON: Your Honor, he has answered. She has been over this and he has answered. He has admitted he made those statements. It seems to me that is sufficient.
THE COURT: Well, she is entitled to determine which is correct. Ask him which is correct.
MR. DERRICKSON: Well, she already asked him and he answered.
THE COURT: She asked him once. She is asking him about another fact now but don’t belabor—
MISS CARNES: Yes, sir.
Q And you also lied when you said Williams had come toward you and grabbed you, is that correct?
A Yes, ma’am.
Q Because your testimony today is actually you went down and grabbed him away.
A Yes, ma’am.
. Whether these statements are admissible in a separate determination for sentencing purposes once guilt has been determined need not be decided in this case. Cf. Smith v. Estelle, 602 F.2d 694 (5th Cir. 1979) (defendant may not be compelled to speak to a psychiatrist for the purpose of determining dangerousness when psychiatrist can use defendant’s statements against him at the sentencing phase of a capital trial). Nor do we discuss the use of a defendant’s statements at a separate determination on the issue of sanity.
. A defendant can be barred from raising the issue of insanity as a defense if he did not submit to an examination by the court-designated psychiatrist. See Smith v. Estelle, supra, at 704. This Circuit has found that empowering the court to order a psychiatric examination concerning the insanity defense does not violate per se the defendant’s rights under the Fifth Amendment. See United States v. Cohen, 530 F.2d 43, 47 (5th Cir.), cert. denied, 429 U.S. 855, 97 S.Ct. 149, 50 L.Ed.2d 130 (1976). The holding in Cohen rested on the premise that, if a defendant raises insanity as a defense and introduces psychiatric testimony, “the government will seldom have a satisfactory method of meeting defendant’s proof on the issue of sanity except by the testimony of a psychiatrist it selects . . who has had the opportunity to form a reliable opinion by examining the accused.” Id. at 48. More importantly, however, the court recognized that eliciting statements at a compulsory examination is not unconstitutional per se because any statement about the offense itself could be suppressed. Id. at 47.
. Both the Advisory Committee’s Notes and the Report of the House Judiciary Committee specifically contemplate a separate determination of the issue of sanity. See Historical Note, supra. This is because use of the defendant’s statements elicited at a psychiatric examination solely at a hearing to determine sanity encounters no self-incrimination objection under the rule.
. 18 U.S.C. § 4244 provides in applicable part:
No statement made by the accused in the course of any examination into his sanity or mental competency provided for by this section, whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding.
. Although the defendant in Castenada, unlike the situation in the case before us, opened the door on direct examination to the content of the statements made during his competency examination, we do not rely on that distinction.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
sc_jurisdiction
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ.
BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES v. AMERICAN HOSPITAL ASSOCIATION et al.
No. 84-1529.
Argued January 15, 1986
Decided June 9, 1986
Stevens, J., announced the judgment of the Court, and delivered an opinion in which Marshall, Blackmun, and Powell, JJ., joined. Burger, C. J., concurred in the judgment. White, J., filed a dissenting opinion, in which Brennan, J., joined and in Parts I, II, IV, and V of which O’Connor, J., joined, post, p. 648. O’Connor, J., filed a dissenting opinion, post, p. 665. Rehnquist, J., took no part in the consideration or decision of the case.
Deputy Assistant Attorney General Cooper argued the cause for petitioner. With him on the briefs were Solicitor General Fried, Assistant Attorney General Reynolds, Dep uty Solicitor General Wallace, Edwin S. Kneedler, Brian K. Landsberg, and Mark L. Gross.
Richard L. Epstein argued the cause for respondents American Hospital Association et al. With him on the brief were Stuart M. Gerson, William G. Kopit, David H. Larry, and Robert W. McCann. Benjamin W. Heineman, Jr., argued the cause for respondents American Medical Association et al. With him on the brief were Carter G. Phillips, Vincent F. Prada, Newton N. Minow, Jack R. Bierig, Ann E. Allen, and Joseph A. Keyes, Jr.
Briefs of amici curiae urging reversal were filed for the American Association on Mental Deficiency et al. by James W. Ellis and Ruth A. Luckasson; for the American Coalition of Citizens with Disabilities et al. by Thomas K. Gilhool, Frank J. Laski, Michael Churchill, and Timothy M. Cook; for the Associaion for Retarded Citizens of the United States et al. by Martin H. Gerry; for the Disability Rights Education & Defense Fund, Inc., et al. by Barbara M. Milstein; for the Rutherford Institute et al. by W. Charles Bundren, Guy 0. Farley, Jr., James J. Knicely, John W. Whitehead, Thomas 0. Kotouc, Wendell R. Bird, and William B. Hollberg; for Carlton Johnson by James Bopp, Jr., and Thomas J. Marzen; and for David G. McLone, M. D., et al. by Dennis J. Horan, Victor G. Rosenblum, Edward R. Grant, and Maura K. Quinlan.
Briefs of amici curiae urging affirmance were filed for the American Academy of Pediatrics et al. by Stephan E. Lawton, Jack N. Goodman, and John A. Hodges; for the State University of New York by Robert Abrams, Attorney General of New York, Robert Hermann, Solicitor General, Frederick K. Mehlman, Stanley A. Camhi, Paul M. Glickman, Donna Miller, Martha 0. Shoemaker, and Jane Levine, Assistant Attorneys General, and Sanford H. Levine; and for George P. Smith II, pro se.
James Bopp, Jr., filed a brief for Senator Orrin G. Hatch et al. as amici curiae.
Justice Stevens
announced the judgment of the Court and delivered an opinion, in which Justice Marshall, Justice Blackmun, and Justice Powell join.
This case presents the question whether certain regulations governing the provision of health care to handicapped infants are authorized by § 504 of the Rehabilitation Act of 1973. That section provides, in part:
“No otherwise qualified handicapped individual... shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 87 Stat. 394, 29 U. S. C. §794.
I
The American Medical Association, the American Hospital Association, and several other respondents challenge the validity of Final Rules promulgated on January 12, 1984, by the Secretary of the Department of Health and Human Services. These Rules establish “Procedures relating to health care for handicapped infants,” and in particular require the posting of informational notices, authorize expedited access to records and expedited compliance actions, and command state child protective services agencies to “prevent instances of unlawful medical neglect of handicapped infants.” 45 CFR §84.55 (1985).
Although the Final Rules comprise six parts, only the four mandatory components are challenged here. Subsection (b) is entitled “Posting of informational notice” and requires every “recipient health care provider that provides health care services to infants in programs or activities receiving Federal financial assistance” — a group to which we refer generically as “hospitals” — to post an informational notice in one of two approved forms. 45 CFR § 84.55(b) (1985). Both forms include a statement that § 504 prohibits discrimination on the basis of handicap, and indicate that because of this prohibition “nourishment and medically beneficial treatment (as determined with respect for reasonable medical judgments) should not be withheld from handicapped infants solely on the basis of their present or anticipated mental or physical impairments.” 45 CFR §§ 84.55(b)(3), (4) (1985). The notice’s statement of the legal requirement does not distinguish between medical care for which parental consent has been obtained and that for which it has not. The notice must identify the telephone number of the appropriate child protective services agency and, in addition, a toll-free number for the Department that is available 24 hours a day. Ibid. Finally, the notice must state that the “identity of callers will be kept confidential” and that federal law prohibits retaliation “against any person who provides information about possible violations.” Ibid.
Subsection (c), which contains the second mandatory requirement, sets forth “Responsibilities of recipient state child protective services agencies.” Subsection (c) does not mention § 504 (or any other federal statute) and does not even use the word “discriminate.” It requires every designated agency to establish and maintain procedures to ensure that “the agency utilizes its full authority pursuant to state law to prevent instances of unlawful medical neglect of handicapped infants.” 45 CFR § 84.55(c)(1). Mandated procedures must include (1) “[a] requirement thát health care providers report on a timely basis... known or suspected instances of unlawful medical neglect of handicapped infants,” §84.55(c)(l)(i); (2) a method by which the state agency can receive timely reports of such cases, § 84.55(c)(1)(h); (3) “immediate” review of those reports, including “on-site investigation,” where appropriate, §84.55(c)(l)(iii); (4) protection of “medically neglected handicapped infants” including, where appropriate, legal action to secure “timely court order[s] to compel the provision of necessary nourishment and medical treatment,” §84.55(c)(l)(iv); and (5) “[tjimely notification” to HHS of every report of “suspected unlawful medical neglect” of handicapped infants. The preamble to the Final Rules makes clear that this subsection applies “where a refusal to provide medically beneficial treatment is a result, not of decisions by a health care provider, but of decisions by parents.” 49 Fed. Reg. 1627 (1984).
The two remaining mandatory regulations authorize “[expedited access to records” and “[expedited action to effect compliance.” 45 CFR §§ 84.55(d), (e) (1985). Subsection (d) provides broadly for immediate access to patient records on a 24-hour basis, with or without parental consent, “when, in the judgment of the responsible Department official, immediate access is necessary to protect the life or health of a handicapped individual.” § 84.55(d). Subsection (e) likewise dispenses with otherwise applicable requirements of notice to the hospital “when, in the judgment of the responsible Department official, immediate action to effect compliance is necessary to protect the life or health of a handicapped individual.” § 84.55(e). The expedited compliance provision is intended to allow “the government [to] see[k] a temporary restraining order to sustain the life of a handicapped infant in imminent danger of death.” 49 Fed. Reg. 1628 (1984). Like the provision affording expedited access to records, it applies without regard to whether parental consent to treatment has been withheld or whether the matter has already been referred to a state child protective services agency.
II
The Final Rules represent the Secretary’s ultimate response to an April 9, 1982, incident in which the parents of a Bloomington, Indiana, infant with Down’s syndrome and other handicaps refused consent to surgery to remove an esophageal obstruction that prevented oral feeding. On April 10, the hospital initiated judicial proceedings to override the parents’ decision, but an Indiana trial court, after holding a hearing the same evening, denied the requested relief. On April 12 the court asked the local Child Protection Committee to review its decision. After conducting its own hearing, the Committee found no reason to disagree with the court’s ruling. The infant died six days after its birth.
Citing “heightened public concern” in the aftermath of the Bloomington Baby Doe incident, on May 18, 1982, the director of the Department’s Office of Civil Rights, in response to a directive from the President, “remind[ed]” health care providers receiving federal financial assistance that newborn infants with handicaps such as Down’s syndrome were protected by § 504. 47 Fed. Reg. 26027 (1982).
This notice was followed, on March 7, 1983, by an “Interim Final Rule” contemplating a “vigorous federal role.” 48 Fed. Reg. 9630. The Interim Rule required health care providers receiving federal financial assistance to post “in a conspicuous place in each delivery ward, each maternity ward, each pediatric ward, and each nursery, including each intensive care nursery” a notice advising of the applicability of § 504 and the availability of a telephone “hotline” to report suspected violations of the law to HHS. Id., at 9631. Like the Final Rules, the Interim Rule also provided for expedited compliance actions and expedited access to records and facilities when, “in the judgment of the responsible Department official,” immediate action or access was “necessary to protect the life or health of a handicapped individual.” Id., at 9632. The Interim Rule took effect on March 22.
On April 6, 1983, respondents American Hospital Association et al. filed a complaint in the Federal District Court for the Southern District of New York seeking a declaration that the Interim Final Rule was invalid and an injunction against its enforcement. Little more than a week later, on April 14, in a similar challenge brought by the American Academy of Pediatrics and other medical institutions, the Federal District Court for the District of Columbia declared the Interim Final Rule “arbitrary and capricious and promulgated in violation of the Administrative Procedure Act.” American Academy of Pediatrics v. Heckler, 561 F. Supp. 395, 404 (1983). The District Judge in that case “conclude[d] that haste and inexperience ha[d] resulted in agency action based on inadequate consideration” of several relevant concerns and, in the alternative, found that the Secretary had improperly failed to solicit public comment before issuing the Rule. Id., at 399-401.
On July 5, 1983, the Department issued new “Proposed Rules” on which it invited comment. Like the Interim Final Rule, the Proposed Rules required hospitals to post informational notices in conspicuous places and authorized expedited access to records to be followed, if necessary, by expedited compliance action. 48 Fed. Reg. 30851. In a departure from the Interim Final Rule, however, the Proposed Rules required federally assisted state child protective services agencies to utilize their “full authority pursuant to State law to prevent instances of medical neglect of handicapped infants.” Ibid. Mandated procedures mirrored those contained in the Final Rules described above. Ibid. The preamble and appendix to the Proposed Rules did not acknowledge that hospitals and physicians lack authority to perform treatment to which parents have not given their consent.
After the period for notice and comment had passed, HHS, on December 30, 1983, promulgated the Final Rules and announced that they would take effect on February 13, 1984. On March 12 of that year respondents American Hospital Association et al. amended their complaint and respondents American Medical Association et al. filed suit to declare the new regulations invalid and to enjoin their enforcement. The actions were consolidated in the Federal District Court for the Southern District of New York, which awarded the requested relief on the authority of the decision of the United States Court of Appeals for the Second Circuit in United States v. University Hospital, 729 F. 2d 144 (1984). American Hospital Assn. v. Heckler, 585 F. Supp. 541 (1984); App. to Pet. for Cert. 50a. On appeal, the parties agreed that the reasoning of the Court of Appeals in University Hospital, if valid, required a judgment against the Government in this case. In accordance with its earlier decision, the Court of Appeals summarily affirmed the District Court. 694 F. 2d 676 (1984). Since the judgment here thus rests entirely on the reasoning of University Hospital, it is appropriate to examine that case now.
Ill
On October 11, 1983, after the Department’s Interim Final Rule had been declared invalid but before it had promulgated the Final Rules challenged here, a child with multiple congenital defects known as “Baby Jane Doe” was born in Long Island, New York, and was promptly transferred to University Hospital for corrective surgery. After consulting with physicians and other advisers, the parents decided to forgo corrective surgery that was likely to prolong the child’s life, but would not improve many of her handicapping conditions.
On October 16, 1983, an unrelated attorney named Wash-burn filed suit in the New York Supreme Court, seeking the appointment of a guardian ad litem for the infant who would direct the hospital to perform the corrective surgery. The trial court granted that relief on October 20, but was reversed the following day by the Appellate Division which found that the “concededly concerned and loving parents” had “chosen one course of appropriate medical treatment over another” and made an informed decision that was “in the best interest of the infant.” Weber v. Stony Brook Hospital, 95 App. Div. 2d 587, 589, 467 N. Y. S. 2d 685, 687 (per curiam). On October 28, the New York Court of Appeals affirmed, but on the ground that the trial court should not have entertained a petition to initiate child neglect proceedings by a stranger who had not requested the aid of the responsible state agency. Weber v. Stony Brook Hospital, 60 N. Y. 2d 208, 211-213, 456 N. E. 2d 1186, 1187-1188 (per curiam).
While the state proceedings were in progress, on October 19, HHS received a complaint from a “private citizen” that Baby Jane Doe was being discriminatorily denied medically indicated treatment. HHS promptly referred this complaint to the New York State Child Protective Service. (The agency investigated the charge of medical neglect and soon thereafter concluded that there was no cause for state intervention.) In the meantime, before the State Child Protective Service could act, HHS on October 22, 1983, made repeated requests of the hospital to make its records available for inspection in order to determine whether the hospital was in compliance with § 504. The hospital refused the requests and advised HHS that the parents had not consented to a release of the records.
Subsequently, on November 2, 1983, the Government filed suit in Federal District Court invoking its general authority to enforce §504 and 45 CFR §84.61 (1985), a regulation broadly authorizing access to information necessary to ascertain compliance. The District Court allowed the parents to intervene as defendants, expedited the proceeding, and ruled against the Government. It reasoned that the Government had no right of access to information because the record clearly established that the hospital had not violated the statute. United States v. University Hospital, State Univ. of N. Y. at Stony Brook, 575 F. Supp. 607, 614 (EDNY). Since the uncontradicted evidence established that the hospital “ha[d] at all times been willing to perform the surgical procedures in question, if only the parents... would consent,” the hospital “failed to perform the surgical procedures in question, not because Baby Jane Doe [wa]s handicapped, but because her parents ha[d] refused to consent.” Ibid.
The Court of Appeals affirmed. In an opinion handed down on February 23, 1984, six weeks after promulgation of the Final Rules, it agreed with the District Court that “an agency is not entitled to information sought in an investigation that ‘overreaches the authority Congress has given.’” 729 F. 2d, at 150 (quoting Oklahoma Press Publishing Co. v. Walling, 327 U. S. 186, 217 (1946)). It further held that although Baby Jane Doe was a “handicapped individual,” she was not “otherwise qualified” within the meaning of §504 because “where medical treatment is at issue, it is typically the handicap itself that gives rise to, or at least contributes to the need for services”; as a result “the ‘otherwise qualified’ criterion of section 504 cannot be meaningfully applied to a medical treatment decision.” 729 F. 2d, at 156. For the same reason, the Court of Appeals rejected the Government’s argument that Baby Jane Doe had been “subjected to discrimination” under § 504: “Where the handicapping condition is related to the condition(s) to be treated, it will rarely, if ever, be possible to say with certainty that a particular decision was ‘discriminatory’.” Id., at 157. The difficulty of applying §504 to individual medical treatment decisions confirmed the Court of Appeals in its view that “[CJongress never contemplated that section 504 of the Rehabilitation Act would apply to treatment decisions involving defective newborn infants when the statute was enacted in 1973, when it was amended in 1974, or at any subsequent time.” Id., at 161. It therefore rejected “the far-reaching position advanced by the government in this case” and concluded that until Congress had. spoken, “it would be an unwarranted exercise of judicial power to approve the type of investigation that ha[d] precipitated this lawsuit.” Ibid.
Judge Winter dissented. He pointed out that §504 was patterned after § 601 of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race in federally funded programs, and asserted that a refusal to provide medical treatment because of a person’s handicapping condition is as clearly covered by § 504 as a refusal based on a person’s race is covered by § 601:
“A judgment not to perform certain surgery because a person is black is not a bona fide medical judgment. So too, a decision not to correct a life threatening digestive problem because an infant has Down’s Syndrome is not a bona fide medical judgment. The issue of parental authority is also quickly disposed of. A denial of medical treatment to an infant because the infant is black is not legitimated by parental consent.” Id., at 162.
The Government did not file a certiorari petition in University Hospital. It did, however, seek review of the judgment in this case. We granted certiorari, 472 U.. S. 1016 (1985), and we now affirm.
h — I C
The Solicitor General is correct that “handicapped individual” as used in § 504 includes an infant who is born with a congenital defect. If such an infant is “otherwise qualified” for benefits under a program or activity receiving federal financial assistance, § 504 protects him from discrimination “solely by reason of his handicap.” It follows, under our decision in Alexander v. Choate, 469 U. S. 287, 301 (1985), that handicapped infants are entitled to “meaningful access” to medical services provided by hospitals, and that a hospital rule or state policy denying or limiting such access would be subject to challenge under § 504.
However, no such rule or policy is challenged, or indeed has been identified, in this case. Nor does this case, in contrast to the University Hospital litigation, involve a claim that any specific individual treatment decision violates § 504. This suit is not an enforcement action, and as a consequence it is not necessary to determine whether § 504 ever applies to individual medical treatment decisions involving handicapped infants. Respondents brought this litigation to challenge the four mandatory components of the Final Rules on their face, and the Court of Appeals’ judgment which we review merely affirmed the judgment of the District Court which “declared invalid and enjoined enforcement of [the final] regulations, purportedly promulgated pursuant to section 504 of the Rehabilitation Act of 1973, 29 U. S. C. §794 (1982).” App. to Pet. for Cert. 2a. The specific question presented by this case, then, is whether the four mandatory provisions of the Final Rules are authorized by § 504.
V
It is an axiom of administrative law that an agency’s explanation of the basis for its decision must include “a ‘rational connnection between the facts found and the choice made.’” Motor Vehicle Mfrs. Assn. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 168 (1962)). Agency deference has not come so far that we will uphold regulations whenever it is possible to “conceive a basis” for administrative action. To the contrary, the “presumption of regularity afforded an agency in fulfilling its statutory mandate” is not equivalent to “the minimum rationality a statute must bear in order to withstand analysis under the Due Process Clause.” Motor Vehicle Mfrs. Assn. v. State Farm Mut. Automobile Ins. Co., 463 U. S., at 43, n. 9. Thus, the mere fact that there is “some rational basis within the knowledge and experience of the [regulators],” United States v. Carolene Products Co., 304 U. S. 144, 152 (1938) (footnote omitted), under which they “might have concluded” that the regulation was necessary to discharge their statutorily authorized mission, Williamson v. Lee Optical Co., 348 U. S. 483, 487 (1955), will not suffice to validate agency decision-making. See Industrial Union Dept. v. American Petroleum Inst., 448 U. S. 607, 639-659 (1980) (opinion of Stevens, J.); Burlington Truck Lines, Inc. v. United States, 371 U. S. 156, 169 (1962). Our recognition of Congress’ need to vest administrative agencies with ample power to assist in the difficult task of governing a vast and complex industrial Nation carries with it the correlative responsibility of the agency to explain the rationale and factual basis for its decision, even though we show respect for the agency’s judgment in both.
Before examining the Secretary’s reasons for issuing the Final Rules, it is essential to understand the pre-existing state-law framework governing the provision of medical care to handicapped infants. In broad outline, state law vests decisional responsibility in the parents, in the first instance, subject to review in exceptional cases by the State acting as parens patriae. Prior to the regulatory activity culminating in the Final Rules, the Federal Government was not a participant in the process of making treatment decisions for newborn infants. We presume that this general framework was familiar to Congress when it enacted § 504. See Cannon v. University of Chicago, 441 U. S. 677, 696-697 (1979). It therefore provides an appropriate background for evaluating the Secretary’s action in this case.
The Secretary has identified two possible categories of violations of §504 as justifications for federal oversight of handicapped infant care. First, he contends that a hospital’s refusal to furnish a handicapped infant with medically beneficial treatment “solely by reason of his handicap” constitutes unlawful discrimination. Second, he maintains that a hospital’s failure to report eases of suspected medical neglect to a state child protective services agency may also violate the statute. We separately consider these two possible bases for the Final Rules.
I — l >
In the immediate aftermath of the Bloomington Baby Doe incident, the Secretary apparently proceeded on the assumption that a hospital’s statutory duty to provide treatment to handicapped infants was unaffected by the absence of parental consent. See supra, at 617-619. He has since abandoned that view. Thus, the preamble to the Final Rules correctly states that when “a non-treatment decision, no matter how discriminatory, is made by parents, rather than by the hospital, section 504 does not mandate that the hospital unilaterally overrule the parental decision and provide treatment notwithstanding the lack of consent.” 49 Fed. Reg. 1631 (1984). A hospital’s withholding of treatment when no parental consent has been given cannot violate § 504, for without the consent of the parents or a surrogate decisionmaker the infant is neither “otherwise qualified” for treatment nor has he been denied care “solely by reason of his handicap.” Indeed, it would almost certainly be a tort as a matter of state law to operate on an infant without parental consent. This analysis makes clear that the Government’s heavy reliance on the analogy to race-based refusals which violate § 601 of the Civil Rights Act is misplaced. If, pursuant to its normal practice, a hospital refused to operate on a black child whose parents had withheld their consent to treatment, the hospital’s refusal would not be based on the race of the child even if it were assumed that the parents based their decision entirely on a mistaken assumption that the race of the child made the operation inappropriate.
Now that the Secretary has acknowledged that a hospital has no statutory treatment obligation in the absence of parental consent, it has become clear that the Final Rules are not needed to prevent hospitals from denying treatment to handicapped infants. The Solicitor General concedes that the administrative record contains no evidence that hospitals have ever refused treatment authorized either by the infant’s parents or by a court order. Tr. of Oral Arg. 8. Even the Secretary never seriously maintained that posted notices, “hotlines,” and emergency on-site investigations were necessary to process complaints against hospitals that might refuse treatment requested by parents. The parental interest in calling such a refusal to the attention of the appropriate authorities adequately vindicates the interest in enforcement of § 504 in such cases, just as that interest obviates the need for a special regulation to deal with refusals to provide treatment on the basis of race which may violate §601 of the Civil Rights Act.
The Secretary’s belated recognition of the effect of parental nonconsent is important, because the supposed need for federal monitoring of hospitals’ treatment decisions rests entirely on instances in which parents have refused their consent. Thus, in the Bloomington, Indiana, case that precipitated the Secretary’s enforcement efforts in this area, as well as in the University Hospital case that provided the basis for the summary affirmance in the case now before us, the hospital’s failure to perform the treatment at issue rested on the lack of parental consent. The Secretary’s own summaries of these cases establish beyond doubt that the respective hospitals did not withhold medical care on the basis of handicap and therefore did not violate § 504; as a result, they provide no support for his claim that federal regulation is needed in order to forestall comparable cases in the future.
The Secretary’s initial failure to recognize that withholding of consent by parents does not equate with discriminatory denial of treatment by hospitals likewise undermines the Secretary’s findings in the preamble to his proposed rulemaking. In that statement, the Secretary cited four sources in support of the claim that “Section 504 [is] not being uniformly followed.” 48 Fed. Reg. 30847 (1983). None of the cited examples, however, suggests that recipients of federal financial assistance, as opposed to parents, had withheld medical care on the basis of handicap.
Notwithstanding the ostensible recognition in the preamble of the effect of parental nonconsent on a hospital’s obligation to provide care, in promulgating the Final Rules the Secretary persisted in relying on instances in which parents had refused consent to support his claim that, regardless of its “magnitude,” there is sufficient evidence of “illegality” to justify “establishing basic mechanisms to allow for effective enforcement of a clearly applicable statute.” 49 Fed. Reg. 1645 (1984). We have already discussed one source of this evidence — “the several specific cases cited in the preamble to the proposed rule.” Ibid. Contrary to the Secretary’s belief, these cases do not “support the proposition that handicapped infants may be subjected to unlawful discrimination.” Ibid. In addition to the evidence relied on in prior notices, the Secretary included a summary of the 49 “Infant Doe cases” that the Department had processed before December 1, 1983. Curiously, however, by the Secretary’s own admission none of the 49 cases had “resulted in a finding of discriminatory withholding of medical care.” Id., at 1649. In fact, in the entire list of 49 cases there is no finding that a hospital failed or refused to provide treatment to a handicapped infant for which parental consent had been given.
Notwithstanding this concession, the Secretary “believes three of these cases demonstrate the utility of the procedural mechanisms called for in the final rules.” Ibid. Accord, ibid. (“[T]hese cases provide additional documentation of the need for governmental involvement and the appropriateness of the procedures established by the final rules”). However, these three cases, which supposedly provide the strongest support for federal intervention, fail to disclose any discrimination against handicapped newborns in violation of § 504. For example, in Robinson, Illinois, the Department conducted an on-site investigation when it learned that the “hospital (at the parents’ request) failed to perform necessary surgery.” Id., at 1646 (emphasis added). After “[t]he parents refused consent for surgery,” “the hospital referred the matter to state authorities, who accepted custody of the infant and arranged for surgery and adoption,” all “in compliance with section 504.” Ibid. The Secretary concluded that “the involvement of the state child protective services agency,” at the behest of the hospital, “was the most important element in bringing about corrective surgery for the infant.... Had there been no governmental involvement in the case, the outcome might have been much less favorable.” Id., at 1649 (emphasis added).
The Secretary’s second example illustrates with even greater force the effective and nondiscriminatory functioning of state mechanisms and the consequent lack of support for federal intervention. In Daytona Beach, Florida, the Department’s hotline received a complaint of medical neglect of a handicapped infant; immediate contact with the hospital and state agency revealed that “the parents did not consent to surgery” for the infant. Id., at 1648. Notwithstanding this information, which was confirmed by both the hospital and the state agency, and despite the fact that the state agency had “obtained a court order to provide surgery” the day before HHS was notified, the Department conducted an on-site investigation. Ibid. In the third case, in Colorado Springs, Colorado, the Department intervened so soon after birth that “the decisionmaking process was in progress at the time the OCR [Office of Civil Rights] inquiry began,” and “it is impossible to say the surgery would not have been provided without this involvement.” Id., at 1649. “However,” the Secretary added, “the involvement of OCR and the OCR medical consultant was cooperatively received by the hospital and apparently constructive.” Ibid.
In sum, there is nothing in the administrative record to justify the Secretary’s belief that “discriminatory withholding of medical care” in violation of § 504 provides any support for federal regulation: In two of the cases (Robinson, Illinois, and Daytona Beach, Florida), the hospital’s refusal was based on the absence of parental consent, but the parents’ decision was overridden by state authorities and the operation was performed; in the third case (Colorado Springs, Colorado) it is not clear whether the parents would have given their consent or not, but the corrective surgery was in fact performed.
VII
As a backstop to his manifestly incorrect perception that withholding of treatment in accordance with parental instructions necessitates federal regulation, the Secretary contends that a hospital’s failure to report parents’ refusals to consent to treatment violates §504, and that past breaches of this kind justify federal oversight.
By itself, § 504 imposes no duty to report instances of medical neglect — that undertaking derives from state-law reporting obligations or a hospital’s own voluntary practice. Although a hospital’s selective refusal to report medical neglect of handicapped infants might violate §504, the Secretary has failed to point to any specific evidence that this has occurred. The 49 actual investigations summarized in the preamble to the Final Rules do not reveal any case in which a hospital either failed, or was accused of failing, to make an appropriate report to a state agency. Nor can we accept the Solicitor General’s invitation to infer discriminatory nonreporting from the studies cited in the Secretary’s proposed rulemaking. Even assuming that cases in which parents have withheld consent to treatment for handicapped infants have gone unreported, that fact alone would not prove that the hospitals involved had discriminated on the basis of handicap rather than simply failed entirely to discharge their state-law reporting obligations, if any, a matter which lies wholly outside the nondiscrimination mandate of § 504.
The particular reporting mechanism chosen by the Secretary — indeed the entire regulatory framework imposed on state child protective services agencies — departs from the nondiscrimination mandate of §504 in a more fundamental way. The mandatory provisions of the Final Rules omit any direct requirement that hospitals make reports when parents refuse consent to recommended procedures. Instead, the Final Rules command state agencies to require such reports, regardless of the state agencies’ own reporting requirements (or lack thereof). 45 CFR §84.55(c)(l)(i) (1985). Far from merely preventing state agencies from remaining calculatedly indifferent to handicapped infants while they tend to the needs of the similarly situated nonhandicapped, the Final Rules command state agencies to utilize their “full authority” to “prevent instances of unlawful medical neglect of handicapped infants.” § 84.55(c)(1). The Rules effectively make medical neglect of handicapped newborns a state investigative priority, possibly forcing state agencies to shift scarce resources away from other enforcement activities — perhaps even from programs designed to protect handicapped children outside hospitals. The Rules also order state agencies to “immediately]” review reports from hospitals, §84.55(c)(l)(iii), to conduct “on-site investigation[s],” ibid., and to take legal action “to compel the provision of necessary nourishment and medical treatment,” §84.55(c)(l)(iv) — all without any regard to the procedures followed by state agencies in handling complaints filed on behalf of nonhandicapped infants. These operating procedures were imposed over the objection of several state child protective services agencies that the requirement that they turn over reports to HHS “conflicts with the confidentiality requirements of state child abuse and neglect statutes,” 49 Fed. Reg. 1627 (1984) — thereby requiring under the guise of nondiscrimination a service which state law denies to the nonhandicapped.
The complaint-handling process the Secretary would impose on unwilling state agencies is totally foreign to the authority to prevent discrimination conferred on him by § 504. “Section 504 seeks to assure evenhanded treatment,” Alexander v. Choate, 469 U. S., at 304; “neither the language, purpose, nor history of § 504 reveals an intent to impose an affirmative-action obligation” on recipients of federal financial assistance, Southeastern Community College v. Davis, 442 U. S. 397, 411 (1979). The Solicitor General also recognizes that §504 is concerned with discrimination and with discrimination alone. In his attempt to distinguish the Secretary’s 1976 determination that it “is beyond the authority of section 504” to promulgate regulations “concerning adequate and appropriate psychiatric care or safe and humane living conditions for persons institutionalized because of handicap or concerning payment of fair compensation to patients who perform work,” 41 Fed. Reg. 29548, 29559, the Solicitor General explains:
“This conclusion of course was consistent with the fact that, as relevant here, Section 504 is essentially concerned only with discrimination in the relative treatment of handicapped and nonhandicapped persons and does not confer any absolute right to receive particular services or
Question: What is the manner in which the Court took jurisdiction?
A. cert
B. appeal
C. bail
D. certification
E. docketing fee
F. rehearing or restored to calendar for reargument
G. injunction
H. mandamus
I. original
J. prohibition
K. stay
L. writ of error
M. writ of habeas corpus
N. unspecified, other
Answer:
|
songer_realresp
|
B
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether or not the formally listed respondents in the case are the "real parties." That is, are they the parties whose real interests are most directly at stake? (e.g., in some appeals of adverse habeas corpus petition decisions, the respondent is listed as the judge who denied the petition, but the real parties are the prisoner and the warden of the prison) (another example would be "Jones v A 1990 Rolls Royce" where Jones is a drug agent trying to seize a car which was transporting drugs - the real party would be the owner of the car). For cases in which an independent regulatory agency is the listed respondent, the following rule was adopted: If the agency initiated the action to enforce a federal rule or the agency was sued by a litigant contesting an agency action, then the agency was coded as a real party. However, if the agency initially only acted as a forum to settle a dispute between two other litigants, and the agency is only listed as a party because its ruling in that dispute is at issue, then the agency is considered not to be a real party. For example, if a union files an unfair labor practices charge against a corporation, the NLRB hears the dispute and rules for the union, and then the NLRB petitions the court of appeals for enforcement of its ruling in an appeal entitled "NLRB v Widget Manufacturing, INC." the NLRB would be coded as not a real party. Note that under these definitions, trustees are usually "real parties" and parents suing on behalf of their children and a spouse suing on behalf of their injured or dead spouse are also "real parties."
UNITED STATES of America, Plaintiff-Appellant, v. ONE 1974 CADILLAC ELDORADO SEDAN, SERIAL No. 6L47S4Q407966, Defendant-Appellee.
No. 68, Docket 76-6063.
United States Court of Appeals, Second Circuit.
Argued Nov. 18, 1976.
Decided Jan. 13, 1977.
Peter C. Salerno, Asst. U. S. Atty., New York City (Robert B. Fiske, Jr., U. S. Atty., S.D.N.Y., Samuel J. Wilson, Asst. U. S. Atty., New York City, of counsel), for plaintiff-appellant.
Michael P. Direnzo, New York City, for defendant-appellee.
Before WATERMAN, FRIENDLY and MULLIGAN, Circuit Judges.
MULLIGAN, Circuit Judge:
On October 15, 1974, the United States brought an action pursuant to 21 U.S.C. § 881 for the forfeiture of a 1974 Cadillac Eldorado Sedan registered in the name of Ivan Santiago. The Government sought forfeiture of the vehicle on the ground that it had been used to facilitate the sale of cocaine within the meaning of 21 U.S.C. § 881(a)(4). After a one-day bench trial before the Honorable Edward Weinfeld, United States District Court for the Southern District of New York, the court dismissed the complaint and denied forfeiture by order and judgment entered March 4, 1976. Judge Weinfeld’s opinion, filed on , December 30, 1975, is reported at 407 F.Supp. 1115. The Government has appealed.
The only evidence given below for the Government was the testimony of Joseph P. Salvemini, an undercover agent of the Drug Enforcement Administration, and two exhibits. The claimant Santiago testified on his own behalf. The Government does not contend that any of the findings of fact below are erroneous.
I
At about 1:30 p.m. on June 6, 1974, Salvemini and an informant went to the apartment of Arlene Carlton at 305 East 24th Street in Manhattan. They were there introduced to one “Pete” Montanez and discussed the purchase of cocaine. Montanez stated that he and his cousin Ivan (Santiago) had brought 15 kilos of cocaine from South America and had 3 kilos left. Montanez told Salvemini that he could only sell him an eighth of a kilogram. Salvemini protested that this was not enough and after a heated exchange Montanez left. On the following day, June 7, Salvemini’s informant advised him that another meeting had been scheduled at Carlton’s apartment. Ivan Santiago, accompanied by Montanez, drove the Cadillac from his ladies’ apparel shop on East 167th Street in the Bronx to Carlton’s apartment in Manhattan where they met with Salvemini. Santiago stated that he was there to straighten out the prior disagreement and was willing to sell Salvemini one kilogram of cocaine for $26,-000. They disagreed however as to the method of transferring the drugs. According to Salvemini, Santiago claimed to have been a dealer in cocaine for six years and preferred the exchange to be made indoors in Carlton’s apartment, while Salvemini wished to use two rented cars. Salvemini testified that the price and the amount of cocaine to be sold were agreed upon at this meeting, and that their only difference at that point was the mechanics of the exchange. Santiago testified that at the end of the June 7 meeting, he told Salvemini to forget about it and that no agreement was reached.
Judge Weinfeld did not comment in his opinion on these separate versions of the June 7 meeting but did find that the meeting ended inconclusively and that the participants failed to agree on the mechanics of the transaction. Santiago and Montanez, after leaving the Carlton apartment, drove away in the Cadillac now sought to be forfeited. Three days later on June 10, 1974, Montanez met Salvemini at a New York restaurant where negotiations continued. Salvemini testified that Montanez stated that he and his cousin Ivan (Santiago) were adamant that the sale take place indoors. Salvemini then agreed to purchase an eighth of a kilogram of cocaine. The transaction took place that evening in the Carlton apartment, Salvemini paying Montanez $4,000 for the cocaine. By arrangement Salvemini and Montanez met the following day and agreed to the further sale of a kilogram of cocaine later that day. Before the transaction was consummated, however, Santiago and Montanez were both arrested.
The apartment of Santiago was searched on June 12 pursuant to a search warrant and quantities of cocaine and marihuana were seized, as well as narcotics equipment, plus some $26,629 in currency including $2,500 in $Í00 bills representing official advance funds. Later that day Santiago’s Cadillac was seized. After Santiago’s arrest, he was indicted and then pleaded guilty to conspiring with Montanez and Carlton to distribute cocaine in violation of 21 U.S.C. § 846. One of the overt acts charged in the indictment was the June 7 conversation in the Carlton apartment. Other overt acts charged were the purchase and sale of the one-eighth kilogram on June 10, 1974 by Montanez. Concededly the only use of the Cadillac Eldorado Sedan sought to be forfeited here was to transport Santiago and “Pete” Montanez to and from the Carlton apartment on June 7, 1974.
II
Section^881(a)(4) provides that the property subject to forfeiture includes “All conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property described in paragraph (1) or (2).” Paragraph 1 identifies a controlled substance as such property and there is no dispute that cocaine is such a substance.'
The Government specifically relies on that part of the statute which provides that if the vehicle is used “in any manner to facilitate the . . . sale” of the controlled substance, it is subject to forfeiture. It is urged that the use of the Cadillac to bring Santiago and Montanez to the June 7 prearranged “business” meeting was a significant event in furtherance of Santiago’s illegal activities which culminated in the illicit sale, thus justifying the forfeiture of the vehicle. Judge Weinfeld’s opinion held that since the contraband was not transported by the vehicle and the car was used as an ordinary means of transportation to convey Santiago to the site of the June 7 meeting, there was no sufficient basis for forfeiture. The court held that the vehicle must have a substantial connection to, or be instrumental in the commission of, the underlying crime. He found that the Cadillac here involved had no relationship, direct or indirect, to the subsequent narcotic transactions which transpired a few days later. He placed principal reliance on United States v. One 1972 Datsun, 378 F.Supp. 1200 (D.N.H.1974) which is the most recent case discussing the issue at length. There is no opinion of our circuit court in point. Although appellee has not favored us with a brief, the cases in point are not numerous and are discussed to a considerable extent in the Datsun opinion.
We cannot agree with the district court that the use of Santiago’s Cadillac had no direct or indirect relationship to the subsequent sales. The June 7 meeting may have terminated inconclusively because of a disagreement as to the mechanics of the exchange, but it was an integral part of the drug selling conspiracy to which Santiago pleaded guilty and was pleaded in the indictment as an overt act. Salvemini did testify that the price and quantity of the drug were fixed at that meeting. It was the second meeting of Montanez and Salvemini and was prearranged as a result of the abortive meeting the day before. Santiago admittedly knew that the purpose of the meeting was to arrange for the sale of cocaine. That sale was consummated a few days later in the manner insisted upon by Santiago — an exchange in the apartment of Carlton. Santiago further admitted in the proceeding below that he had given the cocaine to Montanez which was sold to Salvemini on June 10, again an overt act pleaded in the indictment.
The question is whether there was a sufficient nexus between the use of the Cadillac to bring Salvemini and Santiago to and from the June 7 meeting to amount to a facilitation in any manner of the later sale of the controlled substance within the meaning of section 881(a)(4).
United States v. One 1972 Datsun, supra, relied upon by the district court, involved the construction of the same subdivision of the statute on facts which appear to be stronger for the Government’s case than those before us. That court nonetheless found them insufficient to justify the forfeiture of the vehicle. In that case Stoudt, the owner of the vehicle in question, on two occasions by prearrangement used his car to lead a special agent of the Drug Enforcement Administration (who followed in his own car) to Stoudt’s apartment where sales of LSD were transacted. The court in its review of the case law found that this forfeiture statute and others similar to it had been limited to cases where a) the contraband, no matter how minute in quantity, was intentionally transported or concealed in the vehicle; b) where the vehicle was used as a place for conducting negotiations for or transacting any portion of a sale; or c) where the vehicle is used as a lookout or decoy vehicle in a convoy. The court noted that, courts, with the exception of United States v. One 1941 Pontiac, 83 F.Supp. 999 (S.D.N.Y.1948), had been reluctant to expand the notion of “facilitation” beyond these categories. 378 F.Supp. at 1202-03 and n.6. From these cases, the court derived the rule followed below that “to. be forfeited, a vehicle must have some substantial connection to, or be instrumental in the commission of, the underlying activity which the statute seeks to prevent.” Id. at 1205. We cannot agree, in light of the language and intent of section 881(a)(4), that the statute should be so narrowly construed as to limit its application to the three categories set forth in Datsun.
The Datsun court, and Judge Weinfeld here, depend upon Simpson v. United States, 272 F.2d 229 (9th Cir. 1959), which in turn relied upon United States v. Lane Motor Co., 344 U.S. 630, 73 S.Ct. 459, 97 L.Ed. 622 (1953), for the proposition that the mere fact that a car is used by a law violator for his personal convenience in transporting him to the site of the illicit operation does not establish a basis for forfeiture. Neither case however involved a construction of section 881(a)(4) which is here in issue. Simpson involved a forfeiture under 26 U.S.C. § 7302 which provides for the seizure of “any property intended for use in violating the provisions of the internal revenue laws.” The comparatively narrow scope of such statutes is clear from Lane, supra, 344 U.S. at 631, 73 S.Ct. at 460, where the Supreme Court, construing similar language in section 3116 of the 1939 Internal Revenue Code, held, “We think it clear that a vehicle used solely for commuting to an illegal distillery is not used in violating the revenue laws.” (Emphasis in original). Section 881(a)(4) does not use the broad term property but specifically refers to vehicles and more pointedly, does not limit its application to the use of the vehicle in violating the narcotic laws but allows forfeiture where the vehicle is “used, or [is] intended for use ... in any manner to facilitate the . . . sale” of a controlled substance. We cannot find these cases construing more restrictive statutes authoritative here. The issue cannot be resolved by the simple expedient of characterizing Santiago as a commuter or the user of a vehicle for personal convenience.
We also note that the Datsun opinion extensively cited and depended upon United States v. United States Coin & Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), as representing a trend of amelioration in forfeiture law and as holding that “property shall be seized only if its owner significantly participated in the criminal enterprise.” 378 F.Supp. at 1204, quoting 401 U.S. at 719, 91 S.Ct. at 1044. However in Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 688, 94 S.Ct. 2080, 2094, 40 L.Ed.2d 452 (1974), Mr. Justice Brennan writing the opinion for the Court stated: “Coin & Currency did not overrule prior decisions that sustained application to innocents of forfeiture statutes, like the Puerto Rican statutes, not limited in application to persons ‘significantly involved in a criminal enterprise.’ ” The Puerto Rican statute there involved, P.R.Laws, Ann. tit. 24, § 2512, was modeled on section 881 and its facilitation language tracks precisely the language of the statute here involved. The claimant in Caiero-Toledo was a lessor of a yacht who was unaware of the fact that his lessee was about to use it to transport marihuana. The Court nonetheless declared it properly seized and forfeited, noting that the appellee had not alleged or proved that it “did all that it reasonably could to avoid having its property put to an unlawful use.” Id. at 690, 94 S.Ct. at 2095. This opinion therefore is hardly indicative of a trend of mollification even in circumstances where the owner of the forfeited vehicle is actually ignorant, albeit not invincibly so, of the use to which it has been put. Santiago, hardly a babe in the woods, was on the record before us a hardbitten and veteran trafficker in drugs who was not driving his Cadillac to the Carlton apartment to make a social call and exchange pleasantries with Salvemini. j
The severe attitude of the Caiero-Toledo Court is explained by its reference to the legislative history of 49 U.S.C. § 781, which illustrates congressional concern with rising drug trafficking in this country and its conviction that those who profit and thrive upon the misery of drug addicts should be punished financially by forfeiture of the vehicles employed in the trade. The Government is also compensated in part for its enforcement efforts, which are substantial, and obtains security for subsequently imposed penalties and fines. ■ Id. at 687 n.26, 94 S.Ct. at 2094 n.26.. There is therefore reason to give the forfeiture provisions of the Comprehensive Drug Abuse Prevention and Control Act of 1970 broader coverage than those of other statutes depended upon in Datsun and the district court here.
It is interesting to note that 49 U.S.C. § 781(a)(3), the statute construed in the vast majority of the cases reported on this point in conjunction with the general forfeiture provision of the United States Code Chapter on Transportation, 49 U.S.C. § 782, provides for the forfeiture of any vehicle used or intended to be used “to facilitate the transportation . . . [or] sale . of any contraband article.” However, when the Congress enacted section 881 as part of the 1970 Act it provided for the forfeiture of vehicles used or intended to be used “in any manner to facilitate the transportation . . . [or] sale” of a controlled substance. Although we have found no legislative history to explain the addition of the language which we have underscored, its employment in a statute specifically addressed to the problem of drug abuse patently indicates the congressional intent to broaden the applicability of the forfeiture remedy it provided. Hence the rule proclaimed by Datsun, based upon other statutes as well as section 781, is perforce suspect.
While this circuit has not written on this point before, our attention has been called to opinions of two other circuits which are seemingly contrary to the result reached here. Howard v. United States, 423 F.2d 1102 (9th Cir. 1970), involved the seizure of a car used to transport the defendant to the scene of a drug transaction when the seizing officers had no cause to believe it contained contraband. The court found the forfeiture of the vehicle inappropriate. We note, however, that the court was construing section 781 and not its broadened counterpart section 881. Moreover, the Government proceeded on the theory that the vehicle facilitated the “transportation” of the drug and not, as here, its sale. Howard relied on Platt v. United States, 163 F.2d 165 (10th Cir. 1947) for the proposition that “The use of an automobile to commute to the scene of a crime does not justify the seizure of that automobile under sections 781 and 782.” 423 F.2d at 1104. In Platt, the claimant of the vehicle was the mother of a drug addict who borrowed the vehicle from her parent to drive to a drug store to obtain morphine with a forged prescription. She was arrested as she left the store. Aside from the fact that the opinion indicates the mother’s lack of awareness of the nature of her daughter’s use of the car, the case again was based upon a forfeiture under section 781. We consider neither case therefore persuasive here.
As a matter of common sense we cannot accept the concept that while the transportation of apy quantity of drugs however minute is admittedly sufficient to merit the forfeiture of the vehicle, nonetheless the transportation of the trafficker to the site of the drug sale or to a prearranged meeting with a prospective customer where the sale is proposed should save the vehicle from forfeiture. In either event is should be caput lupinum. It is well understood that extremely small amounts of narcotics are worth considerable sums. (Here for example one-eighth of a kilo of cocaine given to Montanez by Santiago, was sold to the Government agent for $4,000). The drug is physically small enough to be carried on the person of the peddler in his pocket or even his hat band. The vehicle is employed not as a moving van to cart bulky contraband, but realistically to facilitate the transportation of the person who deals in it. The nabobs of the drug business normally eschew physical custody of dope, relegating to their minions possession of the brown paper bag (here we note that while Santiago drove a Cadillac, his cousin Montanez drove a Toyota). If the purpose of the statute is, as Congress indicated, to reduce the profits of those who practice this nefarious profession, we are loathe to make the forfeiture depend upon the accident of whether dope is physically present in the vehicle. Its use to transport the peddler or his confederates to the scene of the sale or to a meeting where the sale is proposed is sufficient.
In prior cases decided under the more restrictive section 781, decisions of the Southern District have not hesitated to approve forfeitures where the vehicle was not used to transport or conceal contraband or as a place to negotiate or consummate a sale of drugs, but rather as a conveyance of the trafficker. In United States v. One 1941 Pontiac Sedan, supra, 83 F.Supp. 999, the vehicle was utilized by one Ardito to drive to a bar where he agreed to sell narcotics to a government informer. The next day he drove the car to a location where the transaction was to take place. A third party was observed carrying the conventional brown paper bag. When the informer advised Ardito that he did not have the money to make the purchase, Ardito waved away the bag carrier. Ardito was observed in the car with a confederate on one occasion and both were seen near it several times. In sustaining the forfeiture of the Pontiac Judge Leibell observed, id. at 1001:
If an automobile is used by a drug peddler as a “means” of going to places to negotiate sales of narcotics and as a means of driving therefrom, to later on have the orders filled, and as a means for the joint transportation of himself and a confederate, who makes the delivery of the narcotics for the peddler, the automobile is in my opinion being used to facilitate the sale of narcotics, even though narcotics are not actually carried in the ear.
In an earlier case, United States v. One Dodge Coupe, 43 F.Supp. 60 (S.D.N.Y.1942), one Granza had driven his Dodge to a location in Manhattan where a Pontiac was parked. Granza entered the Pontiac, drove around the block, and then left it carrying a bag (color not disclosed) which it was subsequently established contained heroin. As a narcotic agent approached, Granza threw the bag back into the Pontiac. Although the claimant was a conditional vendor and the vehicle seized never was shown to have transported the drug, Judge Rif kind construing section 781(a)(3) found that the Dodge facilitated the transportation of the heroin because it brought Granza part of the distance over which the contraband would otherwise have had to travel in order to reach him, thus rendering his task less difficult and laborious. This answer he observed was in part prompted “by the inescapable inference which must be drawn from the fact that the meeting of the Dodge and the Pontiac was not accidental but prearranged. In other words the Dodge was an instrumentality in a prearranged scheme of transportation which was not completed by reason of the intervention of the narcotic agents.” Id. at 62.
Both of these earlier Southern District decisions in substance support the position of the United States on this appeal, particularly since as we have noted we now are dealing with section 881(a)(4) which permits forfeiture if the vehicle in any manner facilitates the sale of a controlled drug. In Dodge Judge Rifkind observed, and Judge Weinfeld cited the opinion’s language (although only for this statement), that where contraband is not in the vehicle, what constitutes facilitation “is a question of degree, which is in turn a question of fact not readily susceptible to generalization.” 43 F.Supp. at 61. The facts here establish that Santiago and his confederate Montanez drove the Cadillac to a prearranged meeting on June 7 to discuss the sale of a controlled substance. That meeting did not result in an immediate sale but this is not unusual. Drug traffickers have to be wary of strangers until avarice ultimately overcomes vigilance. They drove back in the same vehicle. The deal was consummated a few days later by Montanez with drugs supplied by Santiago who knew they were to be sold to the agent. The transaction took place in the same apartment where Santiago initially met and discussed the sale to the agent. The conveyance of Santiago and Montanez in the Cadillac to and from the June 7 meeting did facilitate the sale of the drug, and for the reasons we have given was within the letter and the spirit of section 881(a)(4) of the statute. It has been suggested that on the basis of this decision, the Government may be encouraged to seize more vehicles of drug traffickers. So be it.
The order and judgment of the district court is reversed and the defendant Cadillac is decreed forfeited to the United States.
. H.R.Rep. No. 2751, 81st Cong., 2d Sess. (1950) states:
Enforcement officers of the Government have found that one of the best ways to strike at commercialized crime is through the pocketbooks of the criminals who engage in it. Vessels, vehicles, and aircraft may be termed the operating tools of dope peddlers, and often represent major capital investments to criminals whose liquid assets, if any, are frequently not accessible to the Government. Seizure and forfeiture of these means of transportation provide an effective brake on the traffic in narcotic drugs. The proposed legislation is intended to provide additional means of combating this nefarious activity.
1950 U.S.Code Cong.Serv. 2952, 2953-54.
. As Calero-Toledo notes, 416 U.S. at 680-81, 94 S.Ct. at 2090-91, the forfeiture statutes had their origin in the law of deodands where the value of the thing seized was forfeited to the King in the hope that the King would provide money for Masses for the benefit or repose of the soul of the deceased. In O. Holmes, The Common Law 7 (1881) the origins of the remedy are traced to the Bible. The term deodand derives from Deo dandum (to be given to God). Whatever spiritual motivation inspired the development of the deodand, today forfeiture is candidly aimed at the pocketbook of the criminal and not his immortal soul, although his impoverishment might be a first step in his regeneration.
. We note that this language was employed in the former Narcotic Drugs Import and Export Act, as amended, Act of July 18, 1956, ch. 629, § 105, 70 Stat. 570, which was repealed with the enactment of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub.L. No. 91-513, § 1101(a)(2), 84 Stat. 1291.
. United States v. One 1952 Ford Victoria, 114 F.Supp. 458 (N.D.Cal.1953) relied upon by the district court below, also involved section 781, an innocent conditional vendor and again the Government proceeded on the theory that the conveyance of the trafficker facilitated the transportation of the drugs even though they were not physically present in the car.
. In Datsun, supra, the court noted that the purpose of vehicle forfeiture in enforcement of the narcotics laws was to prevent the flow of narcotics by depriving peddlers of the operating tools of the trade. The court limited the penalty to vehicles used as part of the modus operandi of an ongoing criminal narcotics enterprise or a car specifically adapted for illegal narcotics activities. 378 F.Supp. at 1205. Judge Leibell, however, gave the remedy a much broader reading in Pontiac, supra, pointing out that the automobile permits the dope seller to be more elusive in going to places to meet customers and confederates, to move about at will, to travel greater distances, and to escape observation, detection and capture. He concluded, “It is an operating tool of the dope peddler’s trade.” 83 F.Supp. at 1002. We agree.
Question: Are the formally listed respondents in the case the "real parties", that is, are they the parties whose real interests are most directly at stake?
A. both 1st and 2nd listed respondents are real parties (or only one respondent, and that respondent is a real party)
B. the 1st respondent is not a real party
C. the 2nd respondent is not a real party
D. neither the 1st nor the 2nd respondents are real parties
E. not ascertained
Answer:
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songer_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.
Max FINKEL et al., Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 5863.
United States Court of Appeals First Circuit.
Heard Nov. 6, 1961.
Decided Nov. 21, 1961.
James T. Waldron, Fall River, Mass., with whom John T. Farrell, Jr., and Clarkin & Waldron, Fall River, Mass., were on brief, for petitioners.
Michael K. Cavanaugh, Atty., Dept, of Justice, with whom John B. Jones, Jr., Acting Asst. Atty. Gen., and Lee A. Jackson and Robert N. Anderson, Attys., Dept, of Justice, Washington, D. C., were on brief, for respondent.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
ALDRICH, Circuit Judge.
Taxpayer, who has been in the fish business for many years, was a stockholder in a fish meal corporation, New Bedford Fish Products Corporation, hereinafter Products, and in a fish trucking concern, Meso, Inc. Fish meal processing is a potential nuisance, and Products held the required municipal license. In 1952 its plant was temporarily shut down because business became unprofitable. In 1956 it was sold. Because the license was not transferable, the purchaser could not simply buy the assets, but required the stock. Prior to the sale, taxpayer had loaned $42,874 to Products and $12,-216 to Meso, and other stockholders had made similar loans. Products was substantially indebted to Meso. The purchaser demanded that Products be free from debt after transfer, except to the extent that indebtedness might be represented by notes, in which event the notes were to be transferred to her without recourse. In response, Meso, whose stockholders and creditors were the same as Products’, cancelled its indebtedness. This obligation had been Meso’s sole asset. Products issued notes to its remaining creditors, including taxpayer, which were thereupon endorsed over to the purchaser. In return, the purchaser tendered cash and notes totalling $75,000, of which taxpayer received $21,562.
Taxpayer charged off his Products and Meso stock in his 1956 return as long-term capital losses. No question arises as to this. Next, he sought to deduct the debt owed him by Meso as a business bad debt becoming worthless during the taxable year. The government claims that it was not a business debt. This involves considerations that we need not go into. But the purchaser paid enough for Products so that a partial payment could have been made on its indebtedness to Meso. Accordingly, Meso’s total relinquishment of the indebtedness was a voluntary capital contribution by persons, including taxpayer, who were at once its stockholders, its creditors, and stockholder-creditors of Products. It was, in fact, so entered on Products’ books. In effect taxpayer got more out of Products and less, i. e., nothing, out of Meso, but this was the result of his own action and did not entitle him to claim, vis-a-vis the government, that the debt owed him by Meso was worthless. Raffold Process Corp. v. Commissioner, 1 Cir., 1946, 153 F.2d 168; Liggett’s Estate v. Commissioner, 10 Cir., 1954, 216 F.2d 548; Bratton v. Commissoner, 6 Cir., 1954, 217 F.2d 486. We are not concerned with what might have been the situation had Meso received a pro rata dividend on its indebtedness as an ordinary creditor of Products.
Similarly, taxpayer cannot assert what might have happened had he not sold the notes he received from Products against his indebtedness. Obviously, he cannot— and does not — say that he was paid for the stock and not for the notes. All he can claim is a loss. Levy v. Commissioner, 2 Cir., 1942, 131 F.2d 544, cert. den. Levy v. Helvering, 318 U.S. 780, 63 S.Ct. 858, 87 L.Ed. 1148; Graham Mill & Elevator Co. v. Thomas, 5 Cir., 1945, 152 F.2d 564; Von Hoffman Corp. v. Commissioner, 8 Cir., 1958, 253 F.2d 828; cf. Mitchell v. Commissioner, 2 Cir., 1951, 187 F.2d 706. This he has been allowed.
Judgment will be entered affirming the decision of the Tax Court.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America, Plaintiff-Appellee, v. Hiram Lee BAUMAN, Pedro Talamas, and John Cary, Defendants-Appellants.
No. 89-2176.
United States Court of Appeals, Fifth Circuit.
Oct. 20, 1989.
Beth McGregor (court-appointed), Bailey & McGregor, Houston, Tex., for Bauman.
Frank A. Rubino, Coconut Grove, Fla., for Talamas.
Kent A. Schaffer, Houston, Tex., for Cary.
Scott Bankie, Paula C. Offenhauser, Asst. U.S. Attys., Henry K. Oncken, U.S. Atty., Houston, Tex., for plaintiff-appellee.
Before DAVIS and SMITH, Circuit Judges, and LITTLE, District Judge.
. District Judge of the Western District of Louisiana, sitting by designation.
JERRY E. SMITH, Circuit Judge:
Three defendants seek dismissal of an indictment pending against them after the trial court declared a mistrial. Since all defendants were once put in jeopardy, we must decide whether the fifth amendment to the Constitution bars reprosecution under the facts of this case.
Upon review of the entire record, we conclude that the trial court did not exceed its discretion in finding “manifest necessity” for a mistrial. Accordingly, the double jeopardy clause does not constitutionally bar reprosecution over the defendants’ objection, and hence we affirm. A retrial may commence with respect to all defendants.
I.
The appellants and several confederates were indicted on April 15, 1987, for a variety of drug-related conspiracy, distribution, and importation offenses. The events surrounding the trial were well publicized, described by the Houston media as the largest drug trial in the city’s history. The district judge decided to try all defendants together and set a trial date well in ad-vanee to avoid scheduling conflicts commonly associated with trying numerous co-defendants.
Defendant Hiram Lee Bauman, himself an attorney, was provided court-appointed counsel. Problems developed between Bauman and his attorney, however, leading to substitution of appointed counsel on two separate occasions. The district court permitted Bauman to retain attorney Randy Holzapple, his third appointed counsel, several weeks before trial, with the understanding that the trial date of January 9, 1989, would not be continued. Bauman accepted this condition for substitution of counsel.
All defendants appeared in court on the trial date. Because of a so-called “scheduling conflict,” however, Holzapple failed to appear. The district court believed, based upon these events, that Bauman had retained Holzapple with full knowledge of the attorney’s scheduling problem in order to stall the commencement of the trial. The district court offered Bauman the immediate services of his second court-appointed attorney, who was present in court for unrelated reasons, so that the trial could proceed. Bauman rejected the court’s invitation and moved that either the case be continued or he be severed.
Sensing bad faith, the district court interpreted Bauman’s actions as a calculated attempt to disrupt the trial. Accordingly, the court rejected Bauman’s motion for a continuance or a severance and proceeded with the trial in the absence of Bauman’s defense counsel, citing this court’s decision in United States v. Mitchell. Bauman vehemently objected to the proceedings, believing himself unrepresented in violation of the sixth amendment. He raised the objection at every available opportunity, even though the court noted his objection for purposes of appeal and requested Bau-man’s cooperation.
A jury was empaneled and sworn, and the government began to present witnesses. Bauman, however, proved to be a disruptive defendant. Against the instructions of the court, he repeatedly objected to the lack of counsel before the jury and saw fit to interrupt the examination of government witnesses by seeking the court’s permission to leave the courtroom.
Two days after trial began, Bauman moved for a mistrial, continuance, or severance based upon a newly-submitted affidavit from Holzapple stating that Bauman was unaware of his scheduling conflict. That same morning, the court received information that attorney Campbell, counsel for two other co-defendants, had been arrested in an unrelated case on charges of conspiring to bribe a justice of the peace and aggravated perjury.
The judge decided to meet with the defendants’ attorneys to address the separate problems associated with Bauman’s lack of counsel and Campbell’s arrest. The defendants offered the court no uniform curative measure for any prejudice which they may have suffered: Campbell moved for a mistrial with respect to his two clients; several other co-defendants sought a mistrial; Bau-man desired either a continuance, severance, or “as a last resort,” a mistrial; defendants Talamas and Cary lobbied for a severance but opposed a mistrial. The government, not surprisingly, wanted to try all defendants together and thus sought a mistrial to correct any sixth-amendment error or incurable prejudice visited upon the jury.
Before deciding upon a course of action, the district court then interviewed the jurors to assess any possible prejudicial exposure to news coverage. Prudently, the court made no direct reference to Campbell’s arrest so as not to exacerbate any problem with jury bias. At this point in the proceedings, three jurors admitted to hearing media references to the trial, but they apparently had not paid attention to any details.
After interviewing the attorneys and jurors, and over the objection of Talamas and Cary, the judge declared a mistrial sua sponte as to all defendants. An order, coupled with more comprehensive written findings, was subsequently entered on January 26,1989. The court found, inter alia, that Holzapple had known he had a scheduling conflict when he accepted representation of Bauman and had failed, in bad faith, to notify the court and to attend the trial on behalf of Bauman. The court was also concerned that past publicity, coupled with expected future media coverage of Campbell’s arrest, would incurably prejudice all defendants.
After declaration of the mistrial, defendants Bauman, Talamas, and Cary unsuccessfully moved to dismiss the indictment on the theory that reprosecution is constitutionally barred. A retrial of all defendants has been stayed pending disposition of this interlocutory appeal.
II.
A.
The double jeopardy clause protects a defendant’s “valued right to have his trial completed by a particular tribunal.” Crist v. Bretz, 437 U.S. 28, 36, 98 S.Ct. 2156, 2161, 57 L.Ed.2d 24 (1978). It also bars abusive governmental conduct designed to harass a defendant through repetitive prosecution or undertaken for the purpose of increasing the likelihood of conviction.
However, the double jeopardy clause is not an absolute bar to reprosecution once the jury has been empaneled and sworn. A defendant may, for example, waive double jeopardy protection by consenting to a mistrial before a verdict is rendered. As noted in United States v. Dinitz, 424 U.S. 600, 607, 96 S.Ct. 1075, 1079-1080, 47 L.Ed.2d 267 (1976), “a motion by the defendant for mistrial is ordinarily assumed to remove any barrier to reprosecution, even if the defendant’s motion is necessitated by prosecutorial or judicial error” (citing United States v. Jorn, 400 U.S. 470, 485, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971)).
Without the defendant’s consent to a mistrial, reprosecution becomes more difficult. Nevertheless, a retrial following a sua sponte declaration of mistrial over a defendant’s objection is not prohibited under the fifth amendment where there exists “manifest necessity” for a mistrial. Id. 424 U.S. at 606-07, 96 S.Ct. at 1079. The “manifest necessity” exception, although narrow, frees the trial judge from the “Hobson’s choice” of either continuing with a trial that in fairness should be terminated, or declaring a mistrial after jeopardy attaches and reprosecution is barred. See, e.g., Cherry v. Director, State Bd. of Corrections, 635 F.2d 414, 419 (5th Cir. Jan. 1981) (en banc) (manifest necessity for mistrial exists where, for example, judge or juror cannot attend because of illness or death), cert. denied, 454 U.S. 840, 102 S.Ct. 150, 70 L.Ed.2d 124 (1981).
B.
For purposes of appellate review, the trial court’s finding of “manifest necessity” for a sua sponte declaration of mistrial is to be upheld if the court exercised “sound discretion” in making that determination. See Arizona v. Washington, 434 U.S. at 514, 98 S.Ct. at 835; Grandberry v. Bonner, 653 F.2d 1010, 1014 (5th Cir. Unit A Aug. 1981). Application of this standard requires appellate courts to give the judge’s mistrial order the “highest degree of respect,” as he is most familiar with the events that compromised the trial. The availability of alternatives less draconian than a mistrial does not necessarily preclude reprosecution, as reasonable judges may differ concerning proper curative measures. Grandberry, 653 F.2d at 1014; Cherry, 635 F.2d at 418-19.
Additionally, we are free to scrutinize the entire record and are not limited to only those findings made contemporaneously with the mistrial order. See Abdi, 744 F.2d at 1503. This plenary review of the record assists us in determining, as required by our prior decisions, whether the trial judge “carefully considered the alternatives and did not act in an abrupt, erratic or precipitate manner.” Grandberry, 653 F.2d at 1014.
III.
A.
The Supreme Court has said that the valued right to be tried before a particular tribunal “is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury.” Arizona v. Washington, 434 U.S. at 505, 98 S.Ct. at 830. However, because the valued right is so important, the government must show “manifest necessity” for any mistrial declared over a defendant’s objection. Id.; Baker v. Estelle, 711 F.2d 44, 47 (5th Cir.1983), cert. denied, 464 U.S. 1048, 104 S.Ct. 724, 79 L.Ed.2d 185 (1984).
In Arizona v. Washington, the Supreme Court declined to define manifest necessity precisely or to enunciate rules of mechanical application. It offered limited guidance, saying only that the “high degree of necessity” mandated by the phrase can be found in a variety of circumstances. See 434 U.S. at 506-09, 98 S.Ct. at 830-32. Thus, the Court left the definition of the phrase deliberately ambiguous, affording the trial judge considerable discretion to declare a mistrial without immunizing a defendant from reprosecution.
The phrase “manifest necessity,” first used in double jeopardy jurisprudence in United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824), has been judicially refined" to such an extent that it is today somewhat misleading: It implies a greater burden on the government than is actually demanded to achieve a re-prosecution after a mistrial. As the Washington Court noted, “Indeed, it is manifest that the key word ‘necessity’ cannot be interpreted literally; instead, contrary to the teaching of Webster, we assume that there are degrees of necessity and we require a ‘high degree’ before concluding that a mistrial is appropriate.” 434 U.S. at 506, 98 S.Ct. at 831. Thus, manifest necessity, in modern legal jargon, is equivalent to “a high degree of necessity.”
B.
In the instant case, the court and defendants expressed considerable concern over “spillover prejudice” if the defendants were forced to associate with Campbell, recently arrested, and his clients. In addition, all parties agree that Bauman conducted himself in open court in a fashion that frustrated both the judge and the defendants in maintaining order at trial. The defendants feared that Bauman’s poor decorum before the jury would have a negative impact upon all of them.
It is apparent from the record that the trial court was concerned about the possibility of a sixth amendment error if the trial had proceeded in the absence of defense counsel for Bauman. The court at first believed that Bauman had sought deliberately to interrupt the progress of the trial by soliciting the absence of Holzapple when the trial date had been agreed to by all parties. However, Holzapple’s affidavit, if true, indicated that Bauman had not retained his services in bad faith in order to disrupt the trial.
Aside from problems with representation, the judge and the remaining defendants found Bauman’s interruptions and repetitious objections to be potentially prejudicial as to all defendants. This spillover prejudice was exacerbated by widespread news reports of Campbell’s arrest. The judge found that the risk of both past and future exposure — through news reports and jurors’ conversations with friends — was sufficient to merit a mistrial.
With little difficulty, we conclude that Bauman’s double jeopardy appeal is without merit in this case for the simple reason that he requested the mistrial. As noted previously, a motion by a defendant for a mistrial usually removes any barrier standing in the way of reprosecution under Dinitz. His argument that his motion for a mistrial was “a last resort” and that he really wanted a severance or a continuance is unpersuasive.
The double jeopardy defense asserted by Talamas and Cary, however, is not meritless, as they consistently objected to a mistrial. They remind us that they even agreed to stipulate to certain government evidence in order to avoid a mistrial as to them. Moreover, Talamas and Cary argue that United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), requires that the district court consider less drastic alternatives and, if possible, to choose a remedy of severance instead. They allege that the judge declared a complete mistrial because of selfish concerns for “judicial economy” in conducting a single trial, and that such considerations have no place in double jeopardy jurisprudence.
We agree with Talamas and Cary to the extent that they understand Jom to require the trial court methodically to consider alternatives to a mistrial. However, we reject their argument that the trial court must always agree to sever certain defendants if possible. As noted before, reasonable judges may differ on the proper curative measure, and appellate courts are not meant to second-guess the sound discretion of the trial judge in declaring a mistrial for juror prejudice when that judge is closest to the compromising events.
Moreover, we disagree with defendants’ suggestion that the trial judge was concerned solely with judicial efficiency when he terminated the trial. The record reflects that much more was involved. The trial judge expressed concern that bifurcated trials could prejudice subsequent proceedings because of the publicity surrounding this large-scale drug trial. He also feared incurable juror bias resulting from Bauman’s disruptions in front of the current panel. The future impact of Campbell’s arrest, about which the jurors were asked only indirectly, was also speculative and thus entitled to great deference.
It is evident to us that the trial court here did not act in an abrupt, erratic, or precipitate manner. He consulted with the counsel of all defendants: Most wanted a mistrial for their clients; all wanted a mistrial with respect to Bauman; no one wanted to be seen with Campbell; and Talamas and Cary wanted a severance only. The court also interviewed all the jurors to assess the extent of juror bias.
The court proceeded to consider the options of a continuance and severance. Contrary to the suggestion of the defendants, his findings concerning alternatives other than a mistrial need not be limited to those contemporaneously made with his mistrial order. In fact, such findings need not even be made expressly. See Abdi, 744 F.2d at 1503 (record need only reflect that alternatives were considered). Nevertheless, in this case the trial court did in fact enter additional findings, along with his written order, two weeks later. He concluded that a continuance would only expose the empaneled jurors, over the course of a month’s delay, to more prejudicial media influence. A severance was similarly rejected because of the fear of incurable prejudice on the part of the current panel, concerns for judicial economy and preservation of evidence, and the express consent of all but two of the defendants for a mistrial.
The fact that the judge’s subsequent written findings may have been inconsistent, in whole or in part, with earlier oral findings, as the defendants suggest, is a matter to be considered upon review. We recognize, however, that such changes may be attributable to the judge’s access to more information over time or his quiet reflection upon the unusual events that transpired before him here.
Contrary to what the defendants suggest, double jeopardy jurisprudence does not bar a judge’s reassessment of the impact of certain events. Unless we are convinced from our review of the record that the trial judge is belatedly searching for manifest necessity where none existed at the trial’s termination, we find no interest to be served by shielding criminal defendants from reprosecution because of a judge’s fortuitous choice of words. Thus, the proper analysis focuses upon the complete record and not upon isolated statements of the presiding judge.
IV.
We recognize that other judges may have dispensed differently with the problems presented at trial in the instant case. Nevertheless, we conclude that the trial judge did not abuse his discretion in declaring a mistrial over the objection of two defendants here. Bauman’s lack of counsel and his bizarre behavior before the jury, coupled with Campbell’s arrest, were sufficiently prejudicial as to all defendants. The decision to terminate the trial could have been reached similarly by any reasonable judge.
We are satisfied from our review of the record that a high degree of necessity existed for a complete mistrial. We find that the court evaluated, with due deliberation, whether a mistrial or some other curative measure was appropriate. Accordingly, we AFFIRM. A retrial may proceed with respect to all defendants.
. In his December 19, 1988, motion to substitute counsel, Bauman stated, “This motion is not made for the purpose of delay and there is sufficient time before trial for substitution of counsel and no injustice, prejudice, or obstruction of court procedure will be caused by the substitution.” The court granted the substitution, subject to the limitation that "[tjhis order shall not become a basis for a continuance in this case.”
. 777 F.2d 248, 257-58 (5th Cir.1985), cert. denied, 476 U.S. 1184, 106 S.Ct. 2921, 91 L.Ed.2d 549 (1986), holding that a trial may proceed without defense counsel if the defendant, in bad faith, retains counsel with a scheduling conflict. The Mitchell court concluded that the right to counsel may be waived if it is purposefully used as an instrument for delay.
. See Arizona v. Washington, 434 U.S. 497, 503-04, 98 S.Ct. 824, 829-30, 54 L.Ed.2d 717 (1978) (retrial increases the financial and emotional burden on the accused, prolongs the stigma associated with unresolved charges, and increases the risk that an innocent person may be convicted).
. Grooms v. Wainwright, 610 F.2d 344, 346 (5th Cir.), cert. denied, 445 U.S. 953, 100 S.Ct. 1605, 63 L.Ed.2d 789 (1980); see also Abdi v. Georgia, 744 F.2d 1500, 1503 (11th Cir.1984) (where grounds for mistrial involve jury prejudice, decision of trial judge deserves "great deference”), cert. denied, 471 U.S. 1006, 105 S.Ct. 1871, 85 L.Ed.2d 164 (1985).
. We also have explained the matter as follows:
The bar of the double jeopardy clause operates to protect an accused against multiple prosecutions or multiple punishments for the same offense. Jeopardy attaches at the empaneling and swearing in of the jury, and from then on, consideration must be given to the defendant’s 'valued right ... to have his trial completed by the particular tribunal summoned to sit in judgment on him.’ When that right is denied by declaration of a mistrial at the behest of the prosecution or on the court's own motion, reprosecution is prohibited unless there is a 'manifest necessity for the [mistrial] or the ends of public justice would otherwise be defeated.’
United States v. Bobo, 586 F.2d 355, 362 (5th Cir.1978) (citations omitted), cert. denied, 440 U.S. 976, 99 S.Ct. 1546, 59 L.Ed.2d 795 (1979).
. "[It is] readily apparent that a mechanical rule prohibiting retrial whenever circumstances compel the discharge of a jury without the defendant’s consent would be too high a price to pay for the added assurance of personal security and freedom from governmental harassment which such a mechanical rule would provide.” Arizona v. Washington, 434 U.S. at 505 n. 16, 98 S.Ct. at 830 n. 16 (citing Jorn, 400 U.S. at 480, 91 S.Ct. at 554).
. We note that the trial judge need not make an express finding of "manifest necessity,” nor must he expressly state that he considered alternatives and found none to be superior. See Washington, 434 U.S. at 501, 98 S.Ct. at 828; Abdi, 744 F.2d at 1503. We need only to be satisfied from the complete record that the trial judge exercised sound discretion in declaring a mistrial, sua sponte, in a factual setting that demonstrates a high degree of necessity for terminating the trial before the jury completes its solemn task of rendering a verdict.
. Defendants Talamas and Cary remind us that the judge found no prejudicial bias when he interviewed the jurors but that he did find such bias, or the threat thereof, in subsequent written findings.
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_indict
|
A
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that the indictment was defective?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
UNITED STATES ex rel. MORRISON v. FOSTER.
No. 232, Docket 21292.
United States Court of Appeals Second Circuit.
Argued April 8, 1949.
Decided June 16, 1949.
Philip B. Kurland (Richard F. Wolfson, New York City, of counsel), for appellant.
Nathaniel L. Goldstein, Attorney General of the State of New York (Wendell P. Érown, Solicitor General, Albany, and Herman N. Harcourt and William S. Elder, Jr., Assistant Attorneys General, of counsel), for appellee.
Before SWAN, CLARK and FRANK, Circuit Judges.
SWAN, Circuit Judge.
By petition for a writ of habeas corpus the appellant sought release from confinement in the State Prison at Auburn, N. Y., where he is serving a sentence imposed by virtue of his conviction of first degree robbery, first degree grand larceny, and violation of Section 1897 of the New York Penal Law, McK.Consol.Laws, c. 40, carrying and using dangerous weapons, on verdict of a jury in the County Court -for the County of Richmond. From the district court’s denial of his • petition, he has appealed, asserting (1) that’he has. been denied equal protection of the laws because he was convicted without having been indicted, and (2) that for the same reason the court which convicted him lacked jurisdiction.
His petition sets out the following facts: The indictment under which he was brought to trial was filed on May 28, 194L; it accused James Corbett and three accomplices, each named as John Doe, with committing the crimes on March 21, 1941. Shortly before the indictment was filed Morrison had been arrested and booked under his true name on suspicion of having participated in the robbery, but the arresting officer had no evidence to connect him with the crime and his name was not mentioned in the evidence presented to the grand jury. After the indictment had been filed and while Morrison was still in jail he made admissions to another inmate which revealed that he was one of the four robbers. This inmate told the warden and he in turn imparted the information to the district attorney. In consequence the warrant of arrest under which Morrison was being held was discharged and he was rearrested on a bench warrant issued at the instance of the district attorney. The indictment was then amended to substitute the name of Morrison for that of “John Doe 4.” No objection by Morrison or his attorney was made to the granting of the district attorney’s motion for the amendment. Thereafter he was arraigned on the indictment and entered his plea denying guilt. The only evidence against him at the trial was the testimony of the jail inmate as to his admissions. His conviction was affirmed on appeal (People v. Morrison, 264 App.Div. 778, 35 N.Y.S.2d 279,) and leave to appeal to the Court of Appeals was denied.
In February 1946 Morrison sought a writ of habeas corpus in a state court on the ground that he was never indicted by the grand jury for the crimes charged in the John Doe indictment. This was denied and the denial was affirmed in People ex rel. Morrison v. Foster, 270 App.Div. 982, 62 N.Y.S.2d 840. An application to appeal as of right to the Court of Appeals was denied by that court because “No constitutional question was directly involved,’’ 296 N.Y. 655, 69 N.E.2d 815. A motion to amend the court’s remittitur was denied in 296 N.Y. 748, 70 N.E.2d 553, and a petition 'for a writ of certiorari was denied. Morrison v. Foster, 330 U.S. 831, 67 S.Ct. 865, 91 L.Ed. 1279.
Thereafter in June 1947 Morrison brought' a proceeding coram nobis in the County Court of Richmond County to set aside his conviction and sentence on the ground that the court had no authority to grant the amendment to the indictment. This was denied and a motion for leave to appeal as a poor person was likewise denied, as was also a motion for leave to appeal to the Court of Appeals. Thereafter his appeal to the Appellate Division was dismissed on motion of the district attorney, People v. Morrison, 77 N.Y.S.2d 145 and an attempt to review the order by certiorari was denied in Morrison v. New York, 334 U.S. 834, 68 S.Ct. 1341, 92 L.Ed. 1760. Thereupon the appellant filed the petition now before us on appeal.
Section 2254 of Title 28 of the Code, 28 U.S.C.A. § 2254, forbids the granting of an application for a writ of habeas corpus in behalf of a person in custody pursuant to a judgment of a state court unless the applicant has first exhausted the remedies available in the courts of the state. This section is declaratory of existing law. As previously declared by the Supreme Court in Ex parte Hawk, 321 U.S. 114, 117, 64 S.Ct. 448, 450, 88 L.Ed. 572, the exhaustion of state remedies ordinarily requires the applicant to exhaust “all appellate remedies in the state courts and in this Court by appeal or writ of certiorari.” Although the appellant did not seek certiorari to the Appellate Division's affirmance of his conviction, he did attempt to have the Supreme Court review his later proceedings of habeas corpus and coram nobis in the state courts. This we understand to suffice. “The exhaustion of but one of several available alternatives is all that is necessary,” Wade v. Mayo, 334 U.S. 672, 678, 68 S.Ct. 1270, 1273, 92 L.Ed. 1647. But even if state remedies have been exhausted, a federal court will not ordinarily, where a state court has considered and adjudicated the merits of a petitioner’s contentions, reexamine upon writ of habeas corpus the questions thus adjudicated, provided that the state has accorded remedies which give “due process of law.” Ex parte Hawk, 321 U.S. 114, 118, 64 S.Ct. 448, 88 L.Ed. 572; House v. Mayo, 324 U.S. 42, 48, 65 S. Ct. 517, 89 L.Ed. 739; United States ex rel. Steele v. Jackson, 2 Cir., 171 F.2d 432, 433; Schectman v. Foster, 2 Cir., 172 F.2d 339, 341; United States ex rel. Carr v. Martin, 2 Cir., 172 F.2d 519, 521. Judge Brennan did consider the petition on the merits and concluded that the petitioner had shown no violation of his constitutional rights.
The appellant contends that the writ should have been granted, first, because his trial upon the amended indictment deprived him of the equal protection of the laws, and, second, because he was tried and convicted by a court which lacked jurisdiction. Both points rest' on the premise that he was convicted without ever having been indicted by a grand jury, contrary to Article 1, Section 6 of the New York Constitution. He asserts that the constitutional question, though he has raised it each time, has not been mentioned in any opinion rendered in the state court proceedings, and consequently the District Court had jurisdiction to examine the question.
Despite the ingenious and able argument of counsel, to whom the court expresses thanks for his gratuitous services, we are satisfied that denial of the petition was correct. The major premise of the appellant’s arguement is that the indictment brought in by the grand jury neither named nor described him. This is fallacious. The indictment did not name him but it described him as one of the three unknown accomplices, each named as “John Doe” with a different numeral, who aided Corbett in committing the stated crimes. The procedure of which the appellant complains is the amendment of the indictment, after the District Attorney obtained evidence identifying him as one of Corbett’s accomplices, substituting “James Morrison” for “John Doe 4.” Such an amendment is authorized “in any stage of the proceedings” by Section 277 of the New York Code of Criminal Procedure. The validity of this procedure under the State Constitution was necessarily sustained by the Appellate Division in affirming the appellant’s conviction. See also People v. Bogdanoff, 254 N. Y. 16, 23, 171 N.E. 890, 69 A.L.R. 1378. The fact that Morrison was under arrest on suspicion when the indictment was handed down is irrelevant since his name was not mentioned to the grand jury and the prosecuting authorities at that time had no evidence to connect him with the crimes. Morrison, who was represented by counsel, made no objection to the amendment, or to the amended indictment at any time during the trial. The right to challenge the sufficiency of an indictment may be lost where the finding of guilt by the trial jury “gives the same or greater assurance against oppression and persecution as an indictment based on sufficient evidence is intended to give before trial has been had.” People v. Nitzberg, 289 N.Y. 523, 530, 47 N.E.2d 37, 41. Nor was Morrison denied equal protection of the laws because affirmance of his conviction shows that under like circumstances defendants in other cases would be subject to the same legal rules as were applied in his case.
Order affirmed.
Because of Hurtado v. California, 110 U.S. 516, 4 S.Ct. 292, 28 L.Ed. 232, and Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 91 D.Ed. 1903, 171 A.L.R. 1223, the appellant does not at the present time urge that failure of indictment by a grand jury was a denial of “due process.” See also Kennedy v. Walker, 337 U.S. 901, 69 S.Ct. 1046.
Question: Did the court rule that the indictment was defective?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
songer_usc2sect
|
2036
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
Jose DE OLIVEIRA, Jr., as Executor of the Estate of Serafina de Oliveira, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
No. 84-2477.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 12, 1985.
Decided Aug. 7, 1985.
John M. Youngquist, San Francisco, Cal., for plaintiff-appellant.
Steven I. Frahm, Michael L. Paup, Glenn L. Archer, Jr., Dept, of Justice, Washington, D.C., for defendant-appellee.
Before SNEED and BEEZER, Circuit Judges, and STEPHENS, District Judge.
Honorable Albert Lee Stephens, Jr., Senior United States District Judge for the Central District of California, sitting by designation.
SNEED, Circuit Judge:
Jose de Oliveira, Jr., executor of the estate of Serafina de Oliveira, appeals from a judgment entered in proceedings for the determination of entitlement to an estate tax refund. The district court held that estate taxes were properly assessed against Serafina’s estate and granted the Internal Revenue Service’s (IRS) motion for summary judgment. The district court had jurisdiction under 28 U.S.C. § 1346(a)(1). This court has jurisdiction over the executor’s timely appeal under 28 U.S.C. § 1291. We affirm.
I.
FACTS AND PROCEEDINGS BELOW
Jose de Oliveira, Sr. (the testator) died testate in 1956. His last will and testament created a testamentary trust to hold his half of the community property and named his wife, Serafina, as lifetime beneficiary and trustee. The will also gave the trustee certain powers. The nature and scope of those powers are the principal matters of dispute between the parties in this action.
In 1972, Serafina executed a document entitled “Power of Attorney.” Under that document Serafina agreed to confer with the family members and to abide by a majority vote on any proposed sale, lease, loan or transaction regarding any of the family property.
Serafina died testate in 1978. Her son, Jose Jr., was appointed executor of her estate. A timely federal estate tax return was filed for the estate. This return did not include as assets of the estate the property in the testamentary trust established by the testator, Jose Sr.
On audit, the IRS determined that the provisions of the testator’s will creating the trust gave Serafina the power, exercisable in favor of herself, to consume, appropriate, or dispose of the corpus of the trust. Based on this determination the IRS concluded that Serafina possessed a general power of appointment and that the trust assets were required to be included in her gross estate for estate tax purposes under the provisions of 26 U.S.C. § 2041.
In February 1982, the executor paid the assessed deficiency plus penalties and interest in the total sum of $179,893.91. On September 16, 1982 he filed a claim for refund of this sum in district court. The parties then filed cross-motions for summary judgment. On July 9, 1984, the district court granted the government’s motion and on July 23, 1984, entered judgment for the government.
The provisions of the testator’s will that gave rise to this dispute are the sixth, seventh, and ninth paragraphs.
Paragraph six reads in part:
Said estate to be held and administered thereafter by said Trustee in trust ...
a) for the benefit of my said wife so long as she lives,
b) with all the powers and subject to the conditions specifically designated hereinafter in paragraph Ninth for my said Trustee and/or Executrix.
c) and shall continue until the death of my said wife. Upon the death of my said wife, this trust to cease and terminate and all the rest, residue and remainder of my trust estate I hereby give, devise and bequeath to my ten children____
(emphasis added).
Paragraph nine gives the trustee various powers “[i]n addition to any inherent or implied or statutory powers” and places no limitations on the use of the trust assets.
Paragraph seven contains the following language: “I hereby direct that all provisions for support herein are intended to take effect as of the date of my death.” (emphasis added).
II.
DISCUSSION
To determine whether the trust assets were properly included in Serafina’s gross estate, we must determine whether the testator’s will created a general power of appointment in the trustee (Serafina), and, if so, whether this power was terminated by Serafina’s execution of the “Power of Attorney” document in a manner that removed the trust assets from Serafina’s gross estate.
A. Standard of Review
The executor appeals from the district court’s grant of the government’s motion for summary judgment. He contends that the court erred in granting the motion because questions of latent ambiguity in written instruments are questions of fact to be adjudicated by a jury.
A grant of summary judgment is subject to our de novo review. Haluapo v. Akashi Kaiun, K.K., 748 F.2d 1363, 1364 (9th Cir. 1984). Our inquiry is governed by the same standard used by the district courts under Fed.R.Civ.P. 56(c). Twentieth Century-Fox Film Corp. v. MCA, Inc., 715 F.2d 1327, 1328 (9th Cir.1983). Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).
Because the testator lived in California, California law governs the construction of his will. See Helvering v. Stuart, 317 U.S. 154, 162, 63 S.Ct. 140, 145, 87 L.Ed. 154 (1942); Estate of McMillan v. Commissioner, 670 F.2d 788, 789 n. 2 (8th Cir.1982). Under California law, the construction of a will is a question of law unless the construction turns on the credibility of extrinsic evidence. Estate of Dailey, 130 Cal.App.3d 993, 999, 182 Cal.Rptr. 95, 98 (1982); see Estate of Russell, 69 Cal.2d 200, 213, 70 Cal.Rptr. 561, 570, 444 P.2d 353, 362 (1968).
The district court concluded, after considering all the extrinsic evidence presented by the executor, that there was no ambiguity in the testator’s will. The intent of the testator was found to be clear and unambiguous upon the face of the document. We affirm this finding.
Since no “uncertainty arises upon the face of the will” within the meaning of Cal.Prob.Code § 105, any proferred evidence attempting to show an intention different from that expressed is inadmissible. Estate of Russell, 69 Cal.2d at 212, 70 Cal.Rptr. 561, 444 P.2d 353. Therefore, interpretation of the testator’s will is a matter of law since it does not turn on extrinsic evidence and summary judgment is a proper means of adjudication in this case.
B. The Existence of a General Power of Appointment
The executor argues that the language in the testator’s will creating the trust did not expressly grant to Serafina a general power of appointment. If such a power might be implied, he argues, the will is latently ambiguous since this was not the testator’s intent. The executor maintains that certain extrinsic evidence offered below proves that the testator intended that the trust could be invaded only for Serafina’s support.
Our analysis begins by recognizing that state law determines the property rights and interests created by a will, but federal law determines the tax consequences of those rights and interests. Morgan v. Commissioner, 309 U.S. 78, 80, 60 S.Ct. 424, 425, 84 L.Ed. 1035 (1940); Little v. United States, 704 F.2d 1100, 1105 (9th Cir.1983). No one disputes this principle.
The district court concluded that the will created a power of appointment under California law. The executor does not contest that conclusion on appeal. Rather, the issue on appeal is whether the power of appointment created by the will was a general power of appointment within the meaning of the federal estate tax law.
Section 2041 of the Internal Revenue Code includes within the gross estate of a decedent the value of property over which the decedent possessed a general power of appointment. Such a general power is defined by section 2041(b)(1), relevant portions of which are set forth in the margin. Serafina’s power of appointment is derived from paragraphs six and nine of the testator’s will. Paragraph six provides that the trust was “for the benefit” of Serafina. In addition, paragraph nine grants extensive powers to Serafina as trustee to own, control, possess and use the trust assets, to collect and receive rents, issues and profits for the benefit of the trust, and to sell, convey, lease or mortgage property of the trust as deemed necessary or convenient. Serafina’s power to consume, invade, or appropriate property is limited only by the requirement that it be exercised for her “benefit.”
The executor does not deny that “benefit” is not an “ascertainable standard” sufficient to bring the power within the exception stated in subsection 2041(b)(1)(A). See, e.g., Lehman v. United States, 448 F.2d 1318 (5th Cir.1971) (holding that the words “comfort” and “welfare” rendered a power of appointment general); Treas.Reg. § 20.2041-1(c)(2) (1954). Accordingly, Serafina power remains one exercisable in her favor, her estate, or the creditors of her estate.
Paragraph seven of the will states that “all provisions for support herein” shall take effect on the day of the testator’s death and directs the executrix “to make the same provisions for the beneficiary [Serafina] as provided in said trust” during the probate administration of the estate. This does not alter the conclusion that Serafina’s power was a general power. The purpose of paragraph seven was to free Serafina from the need to seek court-ordered maintenance pursuant to Cal.Prob. Code §§ 680-684 (West 1956).
Nonetheless, the executor argues that the use of the “provisions for support” creates an ambiguity which requires that extrinsic evidence be examined to determine the testator’s intent. The extrinsic evidence offered below, the executor insists, shows that the testator intended that the trust could be invaded only for Serafina’s support. Thus, her power was not general because limited by an “ascertainable standard.”
We are not persuaded. The California Supreme Court in the leading case of Estate of Russell, 69 Cal.2d at 211, 70 Cal. Rptr. 561, 444 P.2d 353, explained the framework for interpreting a will:
[E]xtrinsic evidence as to the circumstances under which a written instrument was made is “admissible to interpret the instrument, but not to give it a meaning to which it is not reasonably susceptible” ..., and it is the instrument itself that must be given effect____ “If the evidence offered would not persuade a reasonable man that the instrument meant anything other than the ordinary meaning of its words, it is useless.” ... On the other hand an ambiguity is said to exist when, in the light of the circumstances surrounding the execution of an instrument, “the written language is fairly susceptible of two or more constructions.”
The court also indicated that “[a]ll parts of a will are to be construed in relation to each other, and so as, if possible, to form one consistent whole.” Cal.Prob.Code § 103 (West 1956). Paragraphs six and seven of Jose Sr.’s will can easily be reconciled. By creating a trust for the “benefit” of Serafina, it is logical that the testator contemplated that funds for her “support” would come out of the trust. The term “support” can be read as referring to a portion of Serafina’s “benefit” for which the trust was established. Considered separately, the two provisions are unambiguous. Construed together, the two provisions reflect no conflict. Accordingly, the will is not ambiguous.
The essence of the executor’s argument is that the testator intended to create an arrangement that would allow the trust assets to pass to the children without being taxed as part of Serafina’s estate. In an affidavit, the attorney who drafted the testator’s will stated that both he and the testator intended to limit Serafina’s use of the trust assets to the funds necessary for her “support.” In effect, the executor is urging this court to rewrite the will to effectuate the testator’s intent. California law does not permit us to construe a will in that fashion.
[W]hether or not resort is had to extrinsic evidence, the court must determine the intent of the testator from the language used. The court in interpreting the will may not decide what the testator should have done or even that the testator desired to accomplish a particular objective. The court only determines what the testator did do by the manner in which he expressed himself. In short, the court, under the guise of interpretation, may not write a will for the testator.
Estate of Casey, 128 Cal.App.3d 867, 871, 198 Cal.Rptr. 170, 172 (1982) (citations omitted); see Estate of Cleaver, 126 Cal. App.3d 341, 346, 178 Cal.Rptr. 729, 732 (1981). While it is possible the testator intended to limit Serafina’s power over the trust assets by an ascertainable standard, he did not do so. Accordingly, the will should not be construed to limit Serafina’s power to invade the trust assets to “support.” The federal estate tax consequences must be determined on the basis of the testator’s will as it is written, not on the basis of how it might have been written.
C. “Power of Attorney” Document
The executor also argues that the power of attorney document eliminated the general power of appointment by requiring that Serafina exercise the power only upon the authorization by a majority of her children. While it is true that the power of appointment would not have been general if that requirement had been in the testator’s will, the subsequent creation of the requirement does not achieve the legal effect that the executor desires. Section 2041(a)(2) of the Code states that the decedent’s gross estate includes the value of all property “with respect to which the decedent has at any time ... released [a general] power of appointment by a disposition which is of such nature that if it were a transfer of property owned by the decedent, such property would be includible in the decedent’s gross estate under Sections 2035 to 2038, inclusive.” The document constituted a release of Serafina’s general power of appointment. See Treas.Reg. § 20.2041-3(d) (1954). Section 2036(a) states:
The value of the gross estate shall include the value of all property to the extent of any interest therein of which the decedent has at any time made a transfer ... under which he has retained for his life ...
(1) the possession or enjoyment of, or the right to the income from, the property, or
(2) the right, either alone or in conjunction with any person, to designate the persons who shall possess or enjoy the property or income therefrom.
If the power of attorney document had been a transfer of property owned by Serafina, it is obvious that property would have been includible in Serafina’s estate under section 2036(a). Her retained powers fit snugly within that section. Accordingly, the value of the trust assets is includible in Serafina’s estate pursuant to section 2041(a)(2). The fact that Serafina perhaps was not aware that she had a general power of appointment when she executed the power of attorney document is irrelevant. Serafina had a general power of appointment regardless of whether she was aware of that fact. It follows that the property subject to the general power of appointment was includible in Serafina’s gross estate both before and after the execution of the power of attorney document.
AFFIRMED.
. Paragraph nine provides in part:
In addition to any inherent or implied or statutory powers my Executrix and/or Trustee may have in either capacity, I grant the following powers to such Executrix and Trustee and her successor: ...
(b) During the continuance of the administration of my estate, and for the trust herein created, my Trustee shall own, control, possess and use the said trust estate and all property therein; shall collect and receive the rents, issues and profits thereof and shall apply them to the uses and purposes of said trust; said Trustee is hereby empowered to sell, convey, lease, mortgage, hypothecate, encumber by deed of trust and/or convert the property of said trust as from time to time shall be deemed necessary or convenient; to invest and reinvest the trust estate in any property or securities ... hereby giving to my said Trustee every power and discretion in the management of the trust estate that she would have if she were the absolute, unqualified and unlimited owner thereof ...
. California Probate Code § 105 provides in part:
[W]hen an uncertainty arises upon the face of a will, as to the application of any of its provisions, the testator’s intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made, excluding the ... oral declarations [of the testator as to his intentions].
. The term "general power of appointment" means a power exercisable in favor of the decedent, his estate, his creditors, ór the creditors of his estate; except that—
(A) A power to consume, invade, or appropriate income or property for the benefit of the decedent which is limited by an ascertainable standard relating to the health, education, support, or maintenance of the decedent shall not be deemed a general power of appointment.
(C) In the case of a power of appointment created after October 21, 1942, which is exercisable by the decedent only in conjunction with another person—
(ii) If the power is not exercisable by the decedent except in conjunction with a person having a substantial interest in the property, subject to the power, which is adverse to the exercise of the power in favor of the decedent — such power shall not be deemed a general power of appointment.
. See footnote 1.
. The district court found this to be the purpose of paragraph seven. The executor does not contest that finding.
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 26? Answer with a number.
Answer:
|
songer_usc1sect
|
403
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
SOCIAL SECURITY BOARD v. WARREN.
No. 12693.
Circuit Court of Appeals, Eighth Circuit.
June 7, 1944.
. Paul A. Sweeney, Atty., Department of Justice, of Washington, D. C. (Francis M. Shea, Asst Atty. Gen., Victor E. Anderson, U. S. Atty., of St. Paul, Minn., David L. Kreeger, Sp. Asst, to the Atty. Gen., Linus J. Hammond, Asst. U. S. Atty., of St. Paul, Minn., Jack B. Tate, Gen. Counsel, Social Security Board, and Hubert H. Margolies, Cecelia H. Goetz, and Phyllis Jane Campbell, Attys., Department of Justice, all of Washington, D. C, on the brief), for appellant.
R. L. Mayall, of Duluth, Minn. (Holmes, May all, Reavill & Neimeyer, of Duluth, , Minn., on the brief), for appellee.
Before STONE, WOODROUGH, and THOMAS, Circuit Judges.
THOMAS, Circuit Judge.
The controlling question for determination on this appeal is whether the District Court erred in substituting its own conclusion for the finding of the Social Security Board, affirmed by its Appeals Council, that compensation for services rendered by Warren as a member of the executive committee of the Duluth Morris Plan Company of Minnesota constituted wages within the meaning of the Social Security Act, as amended, 53 Stat. 1360, 1363, 42 U.S.C.A. § 402 et seq.
The facts giving rise to the controversy are not in dispute. Subsequent to his retirement from active employment with the Duluth-Superior Transit Company, Warren had applied for and was receiving old age or primary insurance benefits under the Act at the rate of $32.50 a month. At the same time he was a member of the board of directors and of tbe executive committee of the Morris Plan Company of Duluth, Minnesota. During an eight-month period from January 1, 1941, to August 31, 1941, he received not less than $15 in each month for his services on the executive committee. Pursuant to the provisions of § 203(d) (1) of the Act, 42 U.S.C.A. § 403(d) (l), the Social Security Board determined that eight monthly benefit payments should be deducted from his insurance benefits for the months during which he received such fees or compensation for services as a member of the executive committee. The decision of the Board was affirmed by the Appeals Council, and Warren then brought this suit for review of the ruling.
Upon review the district court reversed the decision of the Board, adjudged that Warren is entitled to primary insurance benefits for the months for which the deductions were taken, and remanded the cause with directions to the Board to compute the benefits to which Warren is entitled under the judgment and to certify the amount to the Managing Trustee for payment pursuant to § 205(1) of the Act, Amendment of 1939.
Section 205(g) of the Act (42 U.S.C.A. § 405(g) provides that upon review by the court “The findings of the Board as to any fact, if supported by substantial evidence, shall be conclusive.”
In the proceedings before the Board Warren’s claim, at his request, was heard before a referee who took evidence and upon the evidence adduced found that “the services of the claimant [Warren] from January to August, 1941, inclusive, as a member of the executive committee of the Duluth Morris Plan Company were services in employment, that the remuneration paid him was wages, and that the deductions of eight months’ benefits under section 203(d) (1) were properly made.”
At Warren’s request the decision of the referee was reviewed by the Appeals Council where his contentions were considered at length and the findings and decision of the referee were affirmed. The Council concluded that the remuneration paid to Warren for services rendered as a member of the executive committee was wages.
It is the contention of the appellant that the finding of employment is supported by 'Substantial evidence and that, therefore, the decision of the Board is conclusive.
Regulation No. 3 of Regulations of the Social Security Board, 20 C.F.R., 1940 Supp., § 403.804, provides in part as follows :
“Every individual is an employee if the relationship between him and the person for whom he performs services is the legal relationship of employer and employee.
“Generally such relationship exists when the person for whom services are performed has the right to control and direct the individual who performs the services, * * * it is not necessary that the employer actually direct or control the manner in which the services are performed; it is sufficient if he has the right to do so.
He sfc H* H* Hí
“* * * An officer of a corporation is an employee of the corporation, but a director as such is not. A director may be an employee of the corporation, however, if he performs services for the corporation other than those required by attendance at and participation in meetings of the board of directors.”
Section 1 of Article III of the by-laws of the Duluth Morris Plan Company provides that the board of directors shall elect an executive committee from their own members. Section 3 reads: “Powers and Duties. During the intervals between the meetings of the Board of Directors the Executive Committee shall possess, and exercise, so far as it lawfully may, all the powers of the Board of Directors in the management of the business and affairs of the Company in all cases in which specific instructions shall not have been given by the Board of Directors.”
At the hearing before the referee Warren testified that the Duluth Morris Plan Company is a finance company engaged in loaning money to the public payable in installments ; that the executive committee meets weekly; and that they perform the same duties as the board except that “they handle things a little more in detail.” At itheir weekly meetings they approved loans, determined whether or not loans should be made, passed bills for miscellaneous expenses and authorized payment of bills. He thought the board could have changed the membership of the committee at any time.
The president of the company testified that the executive committee determines matters of policy requiring action prior to the next monthly meeting of the board of directors. The board passes on loans before they are made. The committee approves loans already made, establishes credit for borrowers, and passes bills for expenses. The board does not pass on loans after they are made because the officers are entirely competent to handle this • end of it, and, if they are not, it would be better to get some $18-a-week clerk to handle it. The board has never given instructions to the committee as to what should be done.
The executive committee held its weekly meetings at 8:30 in the morning, and the members were paid five dollars each for their services at such meetings.
Under these circumstances we are of the opinion that the finding of 'the Board is conclusive that the compensation paid Warren for his services as a member of the executive committee constitutes “wages”. To hold otherwise requires a revaluation of the evidence.
In Gray v. Powell, 314 U.S. 402, 62 S.Ct. 326, 86 L.Ed. 301, the Supreme Court said: “In a matter left specifically by Congress to the determination of an administrative body * * * the function of review placed upon the courts * * * is fully performed when they determine that there has been a fair hearing, with notice and an opportunity to present the circumstances and arguments to the decisive body, and an application of the statute in a just and reasoned manner.” 314 U.S. at page 411, 62 S.Ct. at page 332, 86 L.Ed. 301. * * * “Although we have here no dispute as to the evidentiary facts, ’ that does not permit a court to substitute its judgment for that of the Director [administrative body].” 314 U.S. at page 412, 62 S.Ct. at page 333, 86 L.Ed. 301. * * * “Unless we can say that a set of circumstances deemed by the. Commission to bring them within the concept ‘producer’ is so unrelated to the tasks entrusted by Congress to the Commission as in effect to deny a sensible exercise of judgment, it is the Court’s duty to leave the Commission’s judgment undisturbed.” 314 U.S. at page 413, 62 S.Ct. at page 333, 86 L.Ed. 301.
In National Labor Relations Board v. Hearst Publications, 64 S.Ct. 851, 861, 88 L.Ed. —, —, a case involving the determination of whether newsboys are employees within the meaning of the National Labor Relations Act, the Court said, “* * * the Board’s determination that specified persons are ‘employees’ under this Act is to -be accepted if'it has ‘warrant in the record’ and a reasonable basis in law.” See, also, Dobson v. Commissioner, 320 U.S. 489, 501-503, 64 S.Ct. 239, and Parker v. Motor Boat Sales, 314 U.S. 244, 245, 246, 62 S.Ct. 221, 86 L.Ed. 184.
In Walker v. Altmeyer, 2 Cir., 137 F.2d 531, 533, the question was whether the employer-employee relation existed between two practicing attorneys within the meaning of the Social Security Act. The Board had found, as in the present case, that the plaintiff was an employee receiving wages, and the district court reversed. The Circuit Court of Appeals treated the matter as one of proper inference to be drawn from the evidentiary facts, which the court held was a matter for the administrative body and that its decision was conclusive on the court.
In the relevant part of Regulation No. 3, the validity of which is not challenged, the Board has said that “such relationship (employer-employee) exists when the person for whom services are performed has the right to control and direct the individual who performs the services. * * *” Here the duties and the authority of the executive committee were delegated and defined in the by-law, supra. The by-law gives the committee the powers of the board except “in all cases in which specific instructions shall not have been given by the Board of Directors.” The Appeals Council held that this provision reserved to the board of directors “the right to control and direct the committee by limiting the sphere of its actions within whatever narrow limitations the board may choose to establish.” There is a reasonable “basis in law” for this holding. Walker v. Altmeyer, supra, 137 F.2d at page 533.
In Deecy Products Co. v. Welch, 1 Cir., 124 F.2d 592, 598, 139 A.L.R. 916, the question presented was whether the statutory clerk of the appellant corporation was an employee, within the meaning of the Social Security Act, during the year 1936. The clerk was the attorney for the corporation, and received no identifiable compensation for his services as clerk. During the year his services as clerk required only thirty-five minutes of his time. The court held that the ordinary legal relationship of employer and employee existed because he was clerk for the entire year and the directors might have required more of his time; that the services performed were a necessary incident of the conduct of the business subject to the control of the directors, and the consideration for his services as clerk was an incident of his compensation* as attorney.
It is a principle of the common law that the directors of a corporation have the power, without statutory authority, “to delegate to officers, agents, or executive committees the power to transact not only ordinary and routine business, but business requiring the highest degree of judgment and discretion.” 13 Am.Jur., Corporations, § 969. Some of the duties performed by the executive committee while Warren was a member might have been performed by an auditor or any ordinary agent because they were routine matters. Other duties required the exercise of a higher discretion; but there is no reason why any duty enumerated by Warren, unless it be the determination of policies in exigencies, might not have been delegated to an officer or to an ordinary employee. Had any such services been performed by an agent, auditor, or managing officer for compensation there can be no doubt that a finding by the Board that such compensation is wages and that the relation of employer and employee existed would have been conclusive upon the courts.
But counsel say that the relation of employer and employee did not exist between the corporation and Warren because individually he had no authority of any kind, nor as an individual any duties. To say, therefore, that he was an employee, it is argued, is a contradiction in terms. The argument is more specious than convincing. A corporation is an abstract entity, and its affairs are ordinarily conducted by its board of directors. This fact does not diminish or limit the common-law power to delegate authority to committees as well as to individuals. 13 Am.Jur., supra. Such committees may be composed of members of the board of directors or of other officers or employees. Nor is the power to require the members of such committees in matters requiring an exercise of discretion .limited to acts subject to the approval of a majority. The relation of employer and employee does not depend upon whether the authority is conferred upon a committee or an individual. It depends upon whether the board of directors has a right to control the performance of the duty and whether its performance is compensated for in wages. Clearly the individual members of a committee may be found to be employees of a corporation when such committee is authorized for compensation to audit books and bills, or to perform any services useful or necessary in carrying on the business of the corporation.
The judgment of the district court is reversed.
Section 203(d). “Deductions * * * shall be made from any payment or payments * * * to which an individual is entitled, until the total of such deductions equals such individual’s benefit or benefits for any month in which such individual: (1) rendered services for wages of not less than $15.”
Section 209(a) provides that “The term ‘wages’ means all remuneration for employment * ' *
“Employment” is defined in § 209(b) as “any service, of whatever nature, performed * * * by an employee for the person employing him * *
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42? Answer with a number.
Answer:
|
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.
Opal L. TAYLOR and Mary A. Taylor, Appellants, v. Robert H. FINCH, Secretary of Health, Education and Welfare, Appellee.
No. 20029.
United States Court of Appeals, Eighth Circuit.
April 13, 1970.
Opal L. Taylor, pro se.
Bethel B. Larey, U. S. Atty., Fort Smith, Ark., and Robert E. Johnson, Asst. U. S. Atty., for appellee.
Before VAN OOSTERHOUT, Chief Judge, and MATTHES and GIBSON, Circuit Judges.
VAN OOSTERHOUT, Chief Judge.
This is an appeal by Opal L. Taylor and Mary A. Taylor prosecuted pro se from an order dismissing their petition for a contempt citation against John W. Gardner, Secretary of Health, Education and Welfare, and the director of the Veterans Administration by reason of their failure to comply with the mandate of this court based upon its opinion in Taylor v. Gardner, 8 Cir., 393 F.2d 257.
An unverified petition, not supported by affidavit, seeking the contempt citation was filed June 4, 1969. The petition was signed by John B. Driver as attorney for plaintiffs. It contains the bald summary assertion that the Secretary and the Director of the Veterans Administration were directed by our mandate to make “certain payments” to plaintiffs and that such payments have not been made. The Secretary filed a motion to dismiss the citation, asserting that pursuant to our mandate upon remand of the case to him he accepted our determination that Social Security coverage existed and that he determined the amount due each of the plaintiffs under the Social Security Act and that he has paid to each of them the amount determined to be due. He further asserted that plaintiffs have never sought reconsideration of court review of such determinations.
The trial court set the case for hearing on the motion to dismiss for October 31, 1969, and gave notice of such hearing to the plaintiffs and their attorney. The attorney responded that he could not appear by reason of illness but that Mrs. Taylor might appear. He sought no continuance.
When the case was reached for the scheduled hearing on October 31, the clerk reported that Mrs. Taylor had appeared in his office earlier that day and advised that she wanted to return home due to the weather but that she desired the case to be submitted even though neither she nor her attorney would be present. She left certain papers with the clerk which were filed. Such papers included correspondence with the Secretary which reflect that the plaintiffs had in fact been awarded some Social Security benefits and that such benefits had been paid to them. On brief, appellants’ principal complaint appears to be that they received no payments for the period from 1953 to 1963.
The transcript of the hearing shows that the United States Attorney appeared and that in answer to questions propounded by the court stated the government’s position that the Secretary had not failed or refused to follow our mandate. Judge Harris was familiar with the facts and issues involved. He had affirmed the Secretary's determination that no coverage existed in an opinion reported at 264 F.Supp. 610, which we reversed in our opinion reported at 393 F.2d 257. Judge Harris’ opinion and our opinion just referred to fairly set out the background, facts and issues presented and resolved in the prior litigation.
Upon the record made in the present case, we are satisfied that the court properly dismissed the petition for contempt.
Courts have power to adjudge persons who wilfully disobey their orders to be in contempt and such power extends to both civil and criminal contempt. See Rule 70, Fed.R.Civ.P.; 18 U.S.C.A. § 401; United States v. United Mine Workers, 330 U.S. 258, 302-303, 67 S.Ct. 677, 91 L.Ed. 884. However, as stated in Shillitani v. United States, 384 U.S. 364, 371, 86 S.Ct. 1531, 1536, 16 L.Ed.2d 622 a court in dealing with contempt must exercise “the least possible power adequate to the end proposed.”
Appellants’ main difficulty in our present case is that they have failed to make any prima facie showing that either the Secretary or the Director of the Veterans Administration have violated or refused to follow our mandate.
The Veterans Administrator was not made a party in the prior case. Our opinion and mandate made no requirements of him. It is established beyond dispute that he has in no way violated our mandate.
The Secretary was a party to the prior case. He had determined appellants were entitled to no survivors benefit under the Social Security Act because Darwin Philo Taylor, deceased husband of Opal L. Taylor and father of Mary A. Taylor, did not have sufficient quarters of coverage to qualify for the benefits provided by the Act. The district court affirmed. We reversed for the reasons fully set out in our opinion, supra. Our ultimate holding is, “We hold that under the circumstances of this case, the receipt of benefits from the Navy does not bar the claimants from receiving Social Security benefits to which they are otherwise entitled. We reverse and remand for further proceedings consistent with this opinion.” 393 F.2d 257, 264.
Since the Secretary, in the proceedings before us upon the prior appeal, held the appellants were not eligible to receive survivors benefits, the Secretary did not reach the issue of amount of benefits due. The issue of the amount of survivors benefits due the appellants was not before us on the prior appeal and we necessarily made no determination in our prior opinion as to the amount of survivors benefits due. The remand was for the purpose of making determination of the amount of benefits.
Upon our remand to the district court, Judge Harris remanded the case to the Secretary for further proceedings consistent with the views expressed in our opinion. The record reflects that the Secretary upon remjand proceeded as directed by our mandate upon the basis that Social Security coverage of Darwin Philo Taylor was established. It is undisputed that some substantial Social Security benefits were awarded to and paid to the appellants. Appellants do not dispute the fact that they were paid some benefits. Their complaint is directed to their contention that the Secretary failed to allow or pay benefits for the 1953-1963 period. The record made before the Secretary on remand is not before us. The Secretary in allowing and paying some survivors benefits, the receipt whereof is admitted by plaintiffs, fully complied with our opinion and mandate directing that the case be handled upon the basis that Darwin Philo Taylor had sufficient quarters of coverage to qualify his survivors for benefits under the Act.
The issue of whether the Secretary correctly determined the amounts due claimants under the circumstances of this case is not properly before us and we express no view upon such issue.
Contempt proceedings cannot be used as, a basis for correcting an asserted error in the Secretary’s determination absent a violation of a court order. As pointed out by Judge Harris in his order dismissing the petition, the Act provides adequate remedies by way of reconsideration by the Secretary and court review of the Secretary’s final determination.
The order dismissing the petition for contempt citation is affirmed.
. Robert H. Finch has succeeded John W. Gardner as Secretary of Health, Education and Welfare ánd he has been substituted as defendant in this action.
. The Secretary in his brief explains his refusal to allow benefits for the 1953-1963 period as follows:
“Prior to 1957 child’s insurance benefits under the then existing provisions of the Social Security Act could only be paid to child beneficiaries who had not attained age 18. The Appellant’s daughter, Mary, attained age 18 in June 1953 and since her first application was filed on November 7, 1951, with 6 months retroactivity provided in the Act at the time, benefits were payable for May 1951 through May 1953. Provision for benefits for a child who became disabled prior to age 18 was enacted with the Social Security Amendments of 1956, P.L. 84 — 880, Section 101, [70 Stat. 807], enacted August 1, 1956 which amended 42 U.S.C. 402d(1). Such benefits could be paid, effective with January 1957, with respect to applications filed after September 1956. Section 101(h). The Appellant, however, next filed an application in May 1964 for child’s and mother’s insurance benefits. Pursuant to section 202 (j) (1) of the Act, as amended September 1, 1954, 42 U.S.C. 402 (j) (1), benefits can only be paid up to 12 months retroactive to the filing of an application; therefore, the Appellant’s current benefit period could only begin with May 1963. Sangster v. Gardner, 374 F.2d 498 (6 Cir., 1967); Meadows v. Cohen, 409 F.2d 750 (5 Cir., 1969).
. Judge Harris in his order states:
“Documents on file in the case indicate that the plaintiffs have received various payments since this case was remanded to the Secretary. Plaintiffs contend that they have not been paid the amounts to which they are entitled, and the government apparently contends that they have. The court feels that this is a matter which should be determined administratively. If the Secretary’s determination of the amounts due, and the payments received, are not in accordance with the claims of plaintiffs, they should proceed administratively by filing a request for reconsideration with their local Social Security District Office, and proceed in accordance with 20 CFR 404.911 et seq.”
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_genapel1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
BOWLES, Price Adm’r, v. INDIANAPOLIS GLOVE CO.
No. 8692.
Circuit Court of Appeals, Seventh Circuit.
Aug. 3, 1945.
Rehearing Denied Aug. 28, 1945.
Fleming James, Jr., Director, Litigation Division, Albert M. Dreyer, Atty., O.P.A., Thomas I. Emerson, Deputy Adm’r for Enforcement, and Abraham Glasser, Sp. Appellate Atty., O.P.A., all of Washington, D. C., and John E. Scott, O.P.A., of Indianapolis, Ind., for appellant.
William H. Thompson, Perry E. O’Neal, Patrick J. Smith, and Russell J. Ryan, Jr., all of Indianapolis, Ind., for appellee.
Before SPARKS, MAJOR, and KER-NER, Circuit Judges.
SPARKS, Circuit Judge.
The Administrator of the Office of Price Administration appeals from a judgment of the District Court in favor of the defendant. The suit is to recover treble damages for alleged violation of the General Maximum Price Regulation, as amended, by sales of work gloves at prices in excess of those established by the regulation. By joint request of the parties, the court limited the trial on the merits to those issues not involving the measure of damages, reserving that question for determination, if necessary, after determination of the other issues.
The principal question presented on this appeal relates to the construction of the regulation and whether it establishes the maximum price of a commodity at the highest price at which it was actually delivered during March, 1942, if the only deliveries in that month were made under contracts made before March, 1942. The District Court found that it did not, and that under the regulation, defendant’s price list, adopted March 21, 1942, established its maximum prices regardless of whether or not any deliveries of gloves were made thereunder during March.
There is no dispute between the parties over the basic facts, most of which were found by the court in accordance with their stipulation. Defendant is a manufacturer and wholesaler of work gloves, making over 500 different styles or items. March 21, 1942, it published a new price list fixing prices as to all items higher than the prices charged in an earlier price list put out in December, 1941. Approximately 300 styles of gloves were delivered during the month of March, 1942, only at prices established by the December list, or earlier lists, or at prices arrived at by applying the trade differentials to such lists, all of which deliveries were made pursuant to prior commitments. All sales made after Maréh 21, 1942, were for prices established by the price list of that date or in accordance with trade differentials in the case of gloves not listed.
The General Maximum Price Regulation was promulgated April 28, 1942, 7 Fed.Reg. 3153, and became effective May 11, 1942, 7 Fed.Reg. 3156. By section 1499.1, it prohibited any dealing in commodities or services above maximum prices, and by section 1499.2, it established such maximum prices in those cases in which the seller dealt in the same or similar commodities or services during the month of March, 1942, at the highest price charged by the seller during such month for the same commodities or services, or, if no charge was made for the same commodity or service, for the similar commodity or service most nearly like it; it defined such highest price charged as:
“(a) The highest price which the seller charged for a commodity delivered or service supplied by him during March 1942; or
“(b) If the seller made no such delivery or supplied no such service during March 1942 his highest offering price for delivery or supply during that month.”
The parties stipulated that on March 3, 1943, the Administrator notified defendant that the prices which it was then charging and receiving for certain of its work gloves were in excess of the maximum prices established pursuant to the Emergency Price Control Act of 1942, as amended, 50 U.S.C.A.Appendix, § 901 et seq., and that this was the first notice defendant or its officers had received that there was a claim by the OPA that it was violating the regulation in question; that defendant immediately upon receipt of the notice ceased to deliver gloves and did not deliver any at the prices fixed in its March 1942 list until after the receipt of a letter from the OPA March 18, 1943, containing the following paragraph:
“We have sought but not yet obtained a clarification of your position from the Regional and National Offices. We have been advised, however, that information is being assembled by the National Office for use in preparation of a specific regulation establishing maximum prices for work gloves applicable to the entire industry. Believing that the present situation constitutes a serious impediment to the production of goods and materials essential to the prosecution of the war, we see no alternative other than to advise you to proceed with shipments on the basis of your March 21, 1942, list prices pending a definite ruling and decision by the Cleveland or Washington Offices. It is understood that this does not legalize or validate the prices charged from May 11, 1942, the date the General Maximum Price Regulation became effective, up to the present time.” Between March 4 and 18, 1943, defendant made no sales or deliveries of any gloves.
The parties further stipulated that the Administrator does not claim that defendant willfully violated the regulations by its sale of gloves during the times referred to in the complaint, nor does he dispute defendant’s contention that what it did in the sale of its gloves, it did in the belief that it had the right to do under the applicable regulations, and that no claim was asserted prior to March 2, 1943, that defendant was violating such regulations.
Defendant earnestly contends that it at all times, in the sale of its work gloves, complied with the regulation and at no time sold its product at a price in excess of the maximum established by the regulation, and the District Court, by its decision, sustained that contention. Since that decision, however, the Supreme Court has passed upon the question of the construction of a similar regulation with respect to sales made pursuant to prior commitments. In the case, Bowles v. Seminole Rock and Sand Co., 65 S.Ct. 1215, 1218, it upheld the Administrator’s contention with respect to a regulation identical with the one here involved, saying:
“* * * The regulation recognizes the fact that more than one meaning may be attached to the phrase ‘highest price charged during March, 1942.’ The phrase might be construed to mean only the actual charges or sales made during March, regardless of the delivery dates. Or it might refer only to the charges made for actual delivery in March. Whatever may be the variety of meanings, however, rule (i) adopts the highest price which the seller ‘charged * * * for delivery’ of an article during March, 1942. The essential element bringing the rule into operation is thus the fact of delivery during March. If delivery occurs during that period the highest price charged for such delivery becomes the ceiling price. Nothing is said concerning the time when the charge or sale giving rise to the delivery occurs. One may make a sale or charge in October relative to an article which is actually delivered in March and still be said to have ‘charged * * * for delivery * * * during March.’ We can only conclude, therefore, that for purposes of rule (i) the highest price charged for an article delivered during March, 1942, is the seller’s ceiling price regardless of the time when the sale or charge is made.
“This conclusion is further borne out by the fact that rule (ii) becomes applicable only where ‘the seller made no such delivery during March, 1942,’ as contemplated by rule (i). The absence of a delivery, rather than the absence of bodi a charge and a delivery during March, is necessary to make rule (i) ineffective, thereby indicating that the factor of delivery is the essence of rule (i). * * *”
We think this decision of the Supreme Court conclusively establishes the rule that the seller’s maximum price must be determined by his highest price charged for goods actually delivered during the basic month regardless of whether or not such deliveries were pursuant to prior commitments, and that he is entitled to use a March price list only as to those items actually delivered thereunder or of which there were no deliveries during the month. Under this rule, defendant’s prices, fixed by its March list as to over 300 items of which it made deliveries in March only under its December list exceeded the maximum established by the General Maximum Price Regulation, hence were a violation of the regulation. In considering the case of Bowles v. Good Luck Glove Co., 7 Cir., 143 F.2d 579, we were of the opinion that the regulation was susceptible of a different interpretation. The decision of the Supreme Court in the Seminole case, supra, has indicated the error of our earlier decision.
Defendant further contends that even if it be held that its prices violated the regulation, it is not liable for such violation for the following reasons:
1. Because in the sale and delivery of its gloves it acted in entire good faith and in the belief that such sales and deliveries were made in pursuance of the applicable regulations;
2. Because the Administrator is not entitled to recover damages, having sustained no damages; and,
3. Because, if the action be one for penalty, such penalty is so excessive and unreasonable that its imposition would deprive defendant of its property without due process of law;
4. Because § 205(e) of the Emergency Price Control Act, on which this action is based, is so indefinite as to the circumstances under which such action may be brought by the Administrator that it is insusceptible of enforcement;
5. Because the defendant has never had ample and reasonable opportunity to contest the validity of the regulation as here construed by the Administrator, in violation of the 5th Amendment to the Constitution ;
6. Because the Administrator and the United States are estopped to assert defendant’s liability for any sales made during the period of time in which they, by their conduct, induced it to sell its gloves at the prices now contended to be in error of law.
With respect to the first defense, good faith, it must be noted that contrary to defendant’s contention, that does not constitute a total defense to a civil action brought by the Administrator. The regulation lays down a specific mandate for establishing maximum prices, and deviation therefrom cannot be called action pursuant thereto under the terms of § 205(d), 50 U.S.C.A. Appendix, § 925(d), upon which defendant relies. In the case, Bowles v. Hasting, 146 F.2d 94, 95, the Court of Appeals for the Fifth Circuit, reviewing a decision of a District Court denying damages for violations of price orders and regulations on a finding that such violations were not willful, said, “Wilfulness in violation is made a necessary ingredient for criminal punishment under Section 265(b). It is not made necessary in the civil suit. When an excess in price is charged the damage is done, and the excess must be repaid, tripled in order to prevent recurrence. The court has no discretion, as it has with reference to the grant of an injunction, to withhold the damages.”
To the same effect is Bowles v. Franceschini, 145 F.2d 510, 512, where the Court of Appeals for the First Circuit said, “From the inclusion of the word ‘willfully’ in § 205(b), which provides for criminal penalties, and its omission in §, 205(e), we can reasonably infer that Congress intended to omit the word ‘willfully’' from the latter section and that, therefore, good faith is immaterial. That Congress could make use of ‘good faith’ as a defense when it wanted to appears in § 205(d) which provides for no liability ‘in respect of anything done or omitted to be done in good faith pursuant to * * * any regulation, order, price schedule * The purpose of this section is to protect those who act ‘pursuant to’ the provisions-of, or regulations under the Act as distinguished from those who ‘violate’ it. It does not appear that the sales made in good’ faith in the instant case were made ‘pursuant to’ any provision or regulation under the Act. * * *” See also Bowles v. American Stores, 78 U.S.App.D.C. 238, 139 F.2d 377, certiorari denied, 322 U.S. 730, 64 S.Ct. 947, 88 L.Ed. 1565.
As to defendant’s second and third' contentions relating to the right of the Administrator to bring the action for damages in the absence of a showing of actual, damage, or for penalty because of the ex-cessiveness of such penalty, similar contentions were argued in Speten v. Bowles, 8 Cir., 146 F.2d 602, 604, certiorari denied 65 S.Ct. 1023. There the Court of Appeals-for the Eighth Circuit said, “It has, however, been so long recognized, as no longer to be an open question, that a congressional provision for a reasonable and measured' recovery in favor of the United States, directly or through one of its agencies, as a. civil penalty or as remedial damages, for violation of a statute involving the public interest, is not within the prohibition of' the Fifth Amendment.”
As to the charge that the section-under which the action was brought is so-vague and indefinite as to the circumstances under which the Administrator-may sue that it is insusceptible of enforcement, this court has recently passed on the-question, finding no difficulty in determining the circumstances under which he may-bring his action. See Bowles v. Rogers, et al., 7 Cir., 149 F.2d 1010. See also Bowles v. Seminole Rock & Sand Co., 5 Cir., 145 F.2d 482, reversed on other grounds, 65 S.Ct. 1215.
We cannot agree with defendant’s •contention that it has had no opportunity to •contest the validity of the regulation as "here construed hy the Administrator. Section 203 of the Emergency Price Control Act, as amended June 30, 1944, 50 U.S.C.A.Appendix, § 923, provides for the procedure for filing protests against any regulation, order or price schedule dt any time after issuance or effective date thereof and for disposition of such protests by the Administrator. Hence it is still within appellee’s power to make its protest to the Administrator, and, if denied, under the provision of § 204, 50 U.S.C.A.Appendix, § 924, it may have such ruling reviewed by the Emergency Court of Appeals, which alone has authority to pass upon the question of constitutionality or statutory validity of regulations. As to this, the Supreme Court said in the Seminole case, supra, “We do not, of course, reach any ■question here as to the constitutionality or statutory validity of the regulation as we have construed it, matters that must in the first instance be presented to the Emergency Court of Appeals. * * * Nor are we here concerned with any possible hardship that the enforcement of the 60-•cent price ceiling may impose on respondent. Adequate avenues for relief from hardship are open to respondent * *
Defendant’s last contention is of •estoppel. It bases this argument on the •conduct of the Administrator in inducing it, for a part of the period complained of, to sell its gloves at prices now charged to violate the law. A similar argument was presented to the Emergency Court of Appeals in the case, Wells Lamont Corporation v. Bowles, 149 F.2d 364, 367. The court, speaking through Judge Lindley, said, “It must be presumed that complainant was advised of the procedure it was required to follow in order to obtain an official interpretation upon which it could properly rely. And, since it failed to comply with the prescribed method, it is not entitled to rely upon unofficial oral advice given by subordinate officials in the Office of Price Administration. At first blush, this may seem harsh but, obviously, the Administrator can not be bound by various oral interpretations which happen to be made by his hundreds, perhaps thousands, of employees, in violation of published regulations. He has prescribed a reasonable procedure by which persons subject to the regulations may obtain official interpretations, by which all will be bound. Complainant is not entitled to rely on an unofficial interpretation.” That part of the advice relied upon by defendant in the case at bar to sustain its charges of estoppel was in writing makes it no more binding upon the Administrator than the oral advice in the Wells case.
We are convinced that under the decision of the Seminole case and the other authorities cited, the District Court was in error in holding that the defendant was not liable for the damages claimed by the Administrator. Since the cause must be remanded for the purpose of trial on the issue of damages, we make one further observation. As in the Speten case, supra, shortly after entry of the judgment here, Congress amended section 205(e) of the Act to provide that the seller’s liability should be “whichever of the following sums is the greater: (1) Such amount not more than three times the amount of the overcharge, or the overcharges, upo:: which the action is based as the court in its discretion. may determine, or (2) an amount not less than $25 nor more than $50, as the court in its discretion may determine : Provided, however, That such amount shall be the amount of the overcharge or overcharges or $25, whichever is greater, if the defendant proves that the violation of the regulation, order, or price schedule in question was neither wilful nor the result of failure to take practicable precautions against the occurrence of the violation.” This amendment was made applicable to proceedings pending on the date of enactment as Well as to proceedings instituted thereafter. We agree with the court in the Speten case that the proceeding was pending at the date of the enactment of the amendment, hence that, upon the further proceedings which must follow in the cause, defendant is entitled to introduce any pertinent evidence to indicate that it did not fail to take practicable precautions. The parties have already stipulated and the court found that the violations were not wilful.
Judgment reversed and cause remanded for further proceedings.
“No person shall be held liable for damages or penalties in any Federal, State, or Territorial court, on any grounds for or in respect of anything done or omitted to be done in good faith pursuant to any provision of this Act or any regulation, order, price schedule, requirement, or agreement thereunder, or under any price schedule of the Administrator of the Office of Price Administration or of the Administrator * * * notwithstanding that subsequently such provision, regulation, order, price schedule, requirement, or agreement may be modified, rescinded,, or determined to be invalid. * * * ”
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_state
|
40
|
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".
Lucille Dorothy PELTIER et al., Plaintiffs, Appellees, v. Robert Ernest PELTIER et al., Defendants, Appellants.
No. 76-1478.
United States Court of Appeals, First Circuit.
Submitted Jan. 6, 1977.
Decided Feb. 9, 1977.
Aram K. Berberian, Cranston, R. I., on brief for appellants.
Michael F. Horan, Pawtucket, R. I., on brief for Lucille Dorothy Peltier, appellee.
Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, BOWNES, District Judge.
Of the District of New Hampshire sitting by designation.
PER CURIAM.
This appeal derives from attempts by several parties to remove divorce actions from the state to federal court. Appellants — all of whom are represented by the same attorney, who has unsuccessfully attempted the same course before — undertook to remove the divorce actions in which they were involved from the Rhode Island Family Court to the United States District Court for the District of Rhode Island; that court ruled that the cited removal statute, 28 U.S.C. § 1443, did not give it jurisdiction over this type of action, and the cases were remanded to the state court. This appeal followed. See 28 U.S.C. § 1447(d).
The only conceivably relevant portion of § 1443 is § 1443(1), which provides for removal by a person “who is denied or cannot enforce in the courts of [a] State a right under any law providing for the equal civil rights of citizens of the United States . .” The Supreme Court has construed this statutory language as being limited to “any law providing for specific civil rights stated in terms of racial equality.” Georgia v. Rachel, 384 U.S. 780, 792, 86 S.Ct. 1783, 1790, 16 L.Ed.2d 925 (1966). See Johnson v. Mississippi, 421 U.S. 213, 219-20, 95 S.Ct. 1591, 44 L.Ed.2d 121 (1975); Milligan v. Milligan, 484 F.2d 446, 447 (8th Cir. 1973); Pennsylvania ex rel. Gittman v. Gittman, 451 F.2d 155, 156-57 (3d Cir. 1971). Given this authoritative and binding construction, it is plain that the district court, as it ruled, was without jurisdiction under § 1443.
Appellants also challenge the propriety of the district court’s award of attorneys’ fees in appellees’ favor. Although the awarding of attorneys’ fees is not usual, Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 257-59, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975); Diaz Gonzalez v. Colon Gonzalez, 536 F.2d 453, 458 n.17 (1st Cir. 1976), they may be awarded in those instances where a party “has acted in bad faith, vexatiously, wantonly, or for oppressive reasons.” F. D. Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 129, 94 S.Ct. 2157, 2165, 40 L.Ed.2d 703 (1974). See Newman v. Piggie Park Enterprise, Inc., 390 U.S. 400, 402 n.4, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968); Cordeco Development Corp. v. Santiago Vasquez, 539 F.2d 256, 262-63 & nn. 10-12 (1st Cir.), cert. denied, - U.S. -, 97 S.Ct. 488, 50 L.Ed.2d 586 (1976). The district court indicated full awareness that attorneys’ fees should be awarded under the bad faith exception “only in extraordinary circumstances and for dominating reasons of justice.” Cordeco Development Corp. v. Santiago Vasquez, supra at 263 (citations omitted). The court stated that a precondition to such an award is the finding of an “intentional institution of an action which one knows to be fictitious and wholly without merit and which is done for the specific purpose of frustrating and harassing lawfully instituted legal procedures.” Applying this strict standard, the court concluded that it should nonetheless impose attorneys’ fees because of the bad faith of appellants’ attorney. The court stated that “[t]he inescapable conclusion is that Mr. Berberian [the attorney] knew the removals were frivolous and that he instituted them for oppressive reasons” and that “frivolous and groundless petitions for removal were employed by Mr. Berberian in bad faith with the intent to delay and frustrate the Family Court’s jurisdiction.”
We have carefully reviewed the entire record with particular view to the adequacy of the finding of bad faith, and we are persuaded that the court did not abuse its discretion in making this determination and in awarding attorneys’ fees.
Affirmed. Double costs on appeal to appellees.
. See, e. g., Champion v. Champion, 539 F.2d 702 (1st Cir. 1976) (an appeal which we characterized as “frivolous”); Tetreault v. Tetreault, C.A. 75-0226 (D.R.I.), appeal dismissed on appellant’s motion, No. 75-1326 (1st Cir. Sept. 12, 1975).
. Appellant contends, in essence, that the Rhode Island Family Court discriminates against males in divorce actions and that § 1443 should be read as permitting removal in cases involving such alleged discrimination. He argues that recent Supreme Court decisions, such as Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973), militate in favor of applying § 1443 to cases of sexual as well as of racial discrimination.
Appellant has not asserted — nor do we know of — any other statute which is properly available for removal of a divorce action. See Milligan v. Milligan, 484 F.2d 446 (8th Cir. 1973). Cf. Armstrong v. Armstrong, 508 F.2d 348 (1st Cir. 1974); H. Hart & H. Wechsler, The Federal Courts and The Federal System, 1189-92 (2d ed. 1973).
. The district court quite properly noted the distinction between conduct cognizable under the bad faith exception and “tenacious and persistent litigation of unsettled and novel issues.” See In re Bithoney, 486 F.2d 319, 322 (1st Cir. 1973).
. Among the reasons cited by the district court for its finding of bad faith was the lack of “even a modicum of supportive logic” for the proposition that § 1443 would authorize removal. The court concluded “that Mr. Berberian knew the removals were frivolous and that he instituted them for oppressive reasons.” The court obviously agreed with the suggestion of the moving spouses that the only purpose of the removals was “to frustrate the Family Court proceedings and hinder the movants in their attempt to acquire relief [viz. temporary support].”
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_r_stid
|
01
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is a respondent.
UNITED STATES of America, Appellee, v. Frank CANGIANO et al., Appellants.
Nos. 1125, 1146 thru 1149, Dockets 71-2104 thru 71-2109.
United States Court of Appeals, Second Circuit.
Submitted Aug. 30, 1973.
Decided Dec. 27, 1973.
See also, 2 Cir., 491 F.2d 906.
Henry J. Boitel, New York City, for appellants Frank Cangiano and Cosmo Cangiano.
Joseph L. Belvedere, Brooklyn, N. Y., for appellant Dominick Ariale.
Philip Brown, Brooklyn, N. Y., for appellants Thomas Gambardella and Anthony DeRamo.
Robert A. Morse, U. S. Atty., L. Kevin Sheridan and James A. Pascarella, Asst. U. S. Attys., Brooklyn, N. Y., for appellee.
Before FRIENDLY and TIMBERS, Circuit Judges, and JAMESON, District Judge.
Senior District Judge of the District of Montana, sitting by designation.
PER CURIAM:
The Supreme Court, in a per curiam order entered June 25, 1973, 413 U.S. 913, remanded the above case to us for further consideration in light of Miller v. California, 413 U.S. 15 (1973), and other cases decided the same day. The instant case now before us for reconsideration on remand is among some 60 cases similarly remanded on June 25, 1973 for further consideration in light of the Miller series of opinions. See United States v. Thevis, 484 F.2d 1149, 1154 (5 Cir. 1973).
In our previous opinion of June 26, 1972, 464 F.2d 320, we affirmed the convictions of the five above named appellants entered after a twelve day jury trial in the Eastern District of New York before Chief Judge Jacob Mishler finding them guilty of transporting obscene materials in interstate commerce for the purpose of sale, and conspiring to do so, in violation of 18 U.S.C. §§ 1465 and 371 (1970). The principal contentions raised by appellants on their appeals, and ruled upon by us, related to the legality of various searches and seizures conducted by the FBI in gathering evidence against appellants. We held, as did the district court after a lengthy pretrial suppression hearing, that appellants’ Fourth Amendment rights had not been violated.
Immediately upon learning of the Supreme Court’s remand order of June 25, 1973, we entered an order on June 29, 1973 directing the parties to file supplemental briefs. They did. We have carefully re-examined the entire record in light of these briefs and in light of the decisions of the Supreme Court set forth in its remand order herein. Supra note 1. We have concluded, after further consideration as ordered by the Supreme Court, that we should adhere to our previous decision of June 26, 1972. We therefore affirm the convictions of each of the appellants.
Since appellants were convicted after a fair trial on the basis of overwhelming evidence of crimes committed more than five years ago, we order that the mandate issue forthwith.
Affirmed.
. The Supreme Court’s per curiam order of June 25, 1973, remanding the instant case and others, reads as follows :
“Certiorari granted, judgments vacated, and cases remanded to the respective United States Courts of Appeals for further consideration in light of Miller v. California, [413 U.S. 15 (1973) ] ; Paris Adult Theatre I v. Slaton, [413 U.S. 49 (1973) ] ; Kaplan v. California, [413 U.S. 115 (1973)]; United States v. 12 200-ft. Reels Film, [413 U.S. 123 (1973)]; United States v. Orito, [413 U.S. 139 (1973) ] ; Heller v. New York, [413 U.S. 483 (1973)] ; Roaden v. Kentucky, [413 U.S. 496 (1973)] ; and Alexander v. Virginia, [413 U.S. 836 (1973)].”
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:
|
songer_adminrev
|
O
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable".
Mannie Mayo BRAGG, Appellant, v. UNITED STATES of America, Appellee.
No. 7546.
United States Court of Appeals Tenth Circuit.
April 6, 1964.
Sid White, Oklahoma City, Okla., for appellant.
Robert L. Berry, Asst. U. S. Atty. (B. Andrew Potter, U. S. Atty., on the brief), for appellee.
Before BREITENSTEIN, HILL and SETH, Circuit Judges.
PER CURIAM.
A jury found appellant guilty of transporting unstamped distilled spirits in violation of the Internal Revenue laws (26 U.S.C. §§ 5205(a) (2), 5604(a) (1)) and he appeals from the sentence imposed. The only point raised is the sufficiency of the evidence.
Two federal agents testified that arrangements were made with one Wyatt for the purchase of moonshine whiskey; that appellant drove up behind them in a car and gave keys to Wyatt who then drove the car alongside the agents’ car; and that the whiskey was then transferred from the car previously driven by appellant to the agents’ car. Appellant and Wyatt both testified that appellant had not driven the car in which the whiskey was transported. The question presented was one of credibility and the jury chose to believe the agents. Substantial evidence sustains the verdict of the jury and we will not disturb its findings. See Reynolds v. United States, 10 Cir., 289 F.2d 698, 699; Corbin v. United States, 10 Cir., 253 F.2d 646, 648-649.
Affirmed.
Question: What federal agency's decision was reviewed by the court of appeals?
A. Benefits Review Board
B. Civil Aeronautics Board
C. Civil Service Commission
D. Federal Communications Commission
E. Federal Energy Regulatory Commission
F. Federal Power Commission
G. Federal Maritime Commission
H. Federal Trade Commission
I. Interstate Commerce Commission
J. National Labor Relations Board
K. Atomic Energy Commission
L. Nuclear Regulatory Commission
M. Securities & Exchange Commission
N. Other federal agency
O. Not ascertained or not applicable
Answer:
|
songer_judgdisc
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the abuse of discretion by the trial judge favor the appellant?" This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
CONNELLY et al. v. ANDERSON et al.
Circuit Court of Appeals, Sixth Circuit
July 6, 1928.
No. 4826.
Patents <§=328 — No. 1,522,577, for method of tunnel excavation, held invalid for want of patentable novelty.
Connelly Patent, No. 1,522,577, for a method of tunnel excavation, held invalid for want of patentable novelty.
Appeal from the District Court of the United States for the Northern District of Ohio; D. C. Westenhaver, Judge.
Suit by Albert L. Connelly and others against L. W. Anderson and others. Prom a decree of dismissal, plaintiffs appeal.
Affirmed.
Jos. B. Keenan and James A. Butler, both of Cleveland, Ohio, for appellants.
Paust P. Crampton, of Toledo, Ohio, for appellees.
Before DENISON, MOORMAN, and KNAPPEN, Circuit Judges.
PER CURIAM.
The District Court dismissed plaintiffs’ bill for infringement, based upon patent No. 1,522,577, January 13,1925, issued to plaintiffs for a method of excavating. The patent was held to be invalid, even, if infringed. We have given thorough consideration to the criticisms made of the opinion below, and we think it must be affirmed.
Well before Connelly’s appearance, Greenwood had applied to tunnel excavation a method which was essentially that of a power scraper in surface work. Greenwood provided a slicing or scraping knife, attached to a cable which extended to a power drum, and when the knife was placed in position and the drum operated, pulling in the cable, a slice of the earth was cut loose, ready for easy removal. This was, of course, adapted to certain soils, and not to others. Greenwood had applied it upon the advancing face of a large tunnel, drawing his knife radially from the edge of the tunnel to the center. In driving tunnels, particularly of the smaller sizes, as for sewers, it was customary to sink a shaft to the desired depth, and then drive the tunnel horizontally therefrom, using picks and shovels when appropriate. Connelly’s method of treatment was specifically new, and he contemplated working in heavy clay or self-sustaining soils. If he wished, for example, to drive a tunnel 8 feet in diameter, he drove first, with pick and shovel, a tunnel as small as a man could work in, perhaps 3 feet in diameter, and extending as far as practicable, perhaps 15 or 20 feet. This being done, the workman carried in a scraper or slicing knife of the Greenwood type, and it was drawn back horizontally by a power drum. In this way the tunnel was gradually enlarged to the desired size and shape. In the particular soil to which the method was adaptable, there was no doubt a substantial economy of time and labor, as compared with the former methods.
Though we observe former methods of tunnel building, which included driving a small preliminary tunnel of a size that would permit timbering and easy working, and then enlarging it from the side to make a complete tunnel, and even if we disregard defendant’s testimony of rather specific anticipation, we might assume that Connelly had developed a novelty in method which might have been restricted to his real novelty, and so have permitted some patent protection. He experienced difficulty in the Patent Office in formulating any description of this novelty by way of a claim. The novelty consisted of the particular narrow and long tunnel, which in the proofs is now called a monkey hole, in connection with the use therein of the Greenwood scraper axially of the preliminary tunnel, instead of radially of the full tunnel, as Greenwood had used it. The claim as issued is quoted in the margin. *3 It calls for a limitation in the size and shape of the monkey hole, which limitation is not described or suggested in the specification, and which quite obviously cannot give patentability; it does not specify that the monkey hole be extended horizontally any substantial distance, even beyond the reach of workmen remaining in the vertical shaft, and it calls for any method of removing the earth in strips from the side walls and floor of the monkey hole, instead of being limited to the peculiar method of removing strips by a power scraper or slieer, in which alone lay whatever utility Connelly’s method had. We are quite clear that the claim does not describe any patentable novelty in method.
The decree is affirmed.
“A method of digging a cylindrical tunnel or similar subway, consisting of, first, digging a vertical hole in the ground to a desired depth; second, digging a narrow lateral passageway in the direction in which the tunnel is to extend with the height of the passage corresponding to a radius of' the tunnel when complete; third, removing strips of earth from the side walls of the passageway to form an upper semieylindrical passageway; and, fourth, removing strips of earth from the floor of the semicylindrical passageway to convert said passageway into a cylindrical passageway.”
Question: Did the court's ruling on the abuse of discretion by the trial judge favor the appellant? This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_casetyp1_7-2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
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 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_appbus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. Reies Lopez TIJERINA and Jerry Noll, Defendants-Appellants.
Nos. 3-68, 4-68.
United States Court of Appeals Tenth Circuit.
June 23, 1969.
John Quinn, U. S. Atty., (John A. Bab-ington, Asst. U. S. Atty., was with him on the brief) for plaintiff-appellee.
Irving M. King, Chicago, Ill., (Morton Stavis, Newark, N. J., William Kunstler, New York City, Albert Gonzales, Santa Fe, N. M., and Beverly Axelrod, San Francisco, Cal., were with him on the brief) for defendants-appellants.
Before LEWIS, BREITENSTEIN and HICKEY, Circuit Judges.
BREITENSTEIN, Circuit Judge.
After a trial to the court without a jury, Tijerina and Noll were convicted of criminal contempt and each was sentenced to serve thirty days in jail and to pay a fine of $500. We held the case in abeyance to await the decision of the United States Supreme Court in Frank v. United States, 395 U.S. 147, 89 S.Ct. 1503, 23 L.Ed.2d 162 on the right of an accused in a contempt proceedings to a jury trial. The Frank decision, announced May 19, 1969, held that, if the “actual penalty is one which may be imposed upon those convicted of otherwise petty offenses,” a jury trial is not required. Here the penalties were within the prescribed limit. See 18 U.S.C. § 1(3).
These proceedings are an outgrowth of the prosecution of Tijerina, Noll, and three others in the United States District Court for the District of New Mexico for federal offenses. See our decision in United States v. Tijerina, 10 Cir., 407 F.2d 349. In the disposition of that case “[t]he court and the parties were concerned with pretrial publicity and the impanelling of an impartial jury.” Ibid. at 354. On October 17, 1967, a hearing was held with counsel present for all parties. The problem of pretrial publicity was discussed. Previously defense counsel had suggested that the court should make an order restricting extrajudicial statements. The court stated its intent to make such an order. Counsel for Tijerina then directed attention to a convention of the Federation of Free City States which would be held in a few days. Later the court furnished counsel with copies of the order which it proposed. It made no exception of the convention. No counsel made any objection and the order was entered. It covered the attorneys, the defendants, and the witnesses and forbade them to “make or issue any public statement, written or oral, either at a public meeting or occasion or for public reporting or dissemination in any fashion regarding the jury or jurors in this case, prospective or selected, the merits of the case, the evidence, actual or anticipated, the witnesses or rulings of the Court.” The order was by Judge Brat-ton who later presided over the criminal trial.
On October 21 and 22, 1967, the annual convention of Alianza Federal de los Pueblos Libres was held in Albuquerque. Both Tijerina and Noll made speeches at the convention. On the basis of statements then made, the United States Attorney filed an application for an order requiring Tijerina and Noll to show cause why they should not be adjudged in contempt. See Rule 42(b), F.R.Crim.P., and 18 U.S.C. § 401(3). The application was made after the criminal case had gone to the jury. Judge Brat-ton issued an order to show cause before Judge Ewing T. Kerr, a United States District Judge for the District of Wyoming, who thereafter presided over the contempt proceedings. After a full evidentiary hearing, Judge Kerr made findings of fact and conclusions of law and held both Tijerina and Noll in contempt.
Tijerina and Noll attack the findings of the trial court that the statements with which they are charged were made at a public meeting. They insist that the convention was private and was attended only by members of Alianza and their invited guests. Estimates of the number present varied from 200 to 600. The only claimed restriction on those entering was identification by guards at the doors and payment of the required fee. Two police officers in plain clothes paid the $3.00 charge and entered. Two newspaper reporters and a radio newscaster entered upon identifying themselves. The auditorium was set up with a TV camera and a loudspeaker system. The finding that the meeting was public has substantial support in the record and is not clearly erroneous.
The meeting was held in the Civic Auditorium of Albuquerque. At the request of local police officers and without the knowledge of those in charge of the convention or of either Tijerina or Noll, auditorium personnel installed a tape recorder to record the proceedings. The machine failed to work on the first day but did on the second. The statement charged to Noll and one of the statements charged to Tijerina were preserved on the tape. The argument is that the recording was an unreasonable search and seizure in violation of the Fourth Amendment. We are not persuaded. Reliance on the electronic surveillance cases is misplaced. Unauthorized electronic eavesdropping upon private conversations is a search and seizure which violates the Fourth Amendment. See Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, and Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248; cf. Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462. We are concerned here with statements made at a public meeting to which reporters were admitted. Our attention is directed to no decision holding that the use of mechanical recordings of public proceedings violates the Fourth Amendment. The tapes are a means of corroborating the recollections of those present. We see no constitutional distinction between the receipt of testimony of those present and the admission of the tapes which recorded what was said.
Appellant Tijerina objects to the receipt of testimony by a newspaper reporter, Beier, of statements made by Ti-jerina on the first day of the convention when the tape recorder was not functioning. Tijerina spoke in Spanish. Beier does not speak or understand Spanish. Martinez, a police officer who spoke Spanish, sat next to Beier and translated certain portions of the speech for Beier who made notes of the gist of what the officer told him. After the speech, Beier read his notes to a Spanish-speaking reporter, Herrera, who confirmed the notes as containing the statements which he, Herrera, heard Tijerina make. Herrera so testified at the trial. On the same day as the speech, Beier discussed in English with Tijerina his remarks regarding Judge Bratton. Beier did not show Tijerina the notes but questioned him about “his mentioning Judge Bratton and Judge Bratton’s order.” Tijerina made no denial and said that “it wasn’t for discussion for the press.”
The argument now made is that the hearsay objection to Beier’s testimony should have been sustained. In our opinion the testimony was not inadmissible hearsay. We have held that “testimony is not hearsay when it is to prove only that a statement was made and not the truth of the statement.” Creaghe v. Iowa Home Mutual Casualty Company, 10 Cir., 323 F.2d 981, 984. See also Aikins v. United States, 10 Cir., 282 F.2d 53, 57, and Standard Oil Company v. Standard Oil Company, 10 Cir., 252 F.2d 65, 75, 76 A.L.R.2d 600. The testimony of Beier was offered to prove what Tijerina had said and the only question of credibility related to the credibility of Beier. We are concerned with the fact, not the truth, of the statement. Beier was thoroughly cross-examined by defense counsel. The court chose to believe him. The argument that officer Martinez spoke idiomatic New Mexican Spanish while Tijerina used “pure” Spanish is unpersuasive. Tijerina was speaking in Spanish to a large assembly of Spanish-speaking New Mexicans. The fact that Beier got his information through an interpreter goes only to the weight of the evidence. We believe that Beier’s testimony was properly received.
The next argument is that the statements charged do not violate the order as a matter of law. The trial court specifically found three statements violative of the order. One made by Tijerina on the opening day of the Alianza convention was:
“U. S. District Judge Howard C. Bratton last week issued an order against any of the defendants,. witnesses and lawyers not to talk about the case outside of the courtroom. If Judge Bratton asks me I’ll tell him I told the witnesses what to say and what to do. I may get arrested. This is fine. It’s all right with me because I don’t want Judge Bratton to judge this case.”
The statement of Tijerina on the following day was:
“For example, the trial of Reies is coming up and Reies Tijerina is going to be judged the 6th of November and that is an important issue. We know that the Judge has taken the power in his own hands. We know that the Judge is using the law to take vengeance and drink blood and humiliate our race. In this case we can advise the Negro pueblo of what is going on and they can come out and march around the court house. This is their business.”
The statement of Noll is much longer. After referring to the events at the Echo Amphitheater and asserting that the United States had declared that he and his codefendants “are criminals and that it was going to try us and put us to death,” he said:
“War with the U. S. is imminent, for during the last week of August, I caused to be sent to the self-styled President of the United States of America, an ultimatum which he received August 31st. This ultimatum, in essence, declared that if and when the alleged cases in the U. S. imposed force relative to the events at Echo Ampitheater and Tierra Amarilla should commence for trial, a state of war should exist as of that date between the Kingdom of the Indies and the United States of America. According to the newspaper, the tentative date for the war to commence is November 6th, but I think they are going to try to postpone it. Therefore, prepare yourselves for war. I suggest that a scorched earth policy be used; for every nation that used this policy were victorious. We must burn every tree, every blade of grass, every building within the kingdom. Let them burn, burn, burn.”
The- record in the criminal trial shows a continuing and pervading concern of both court and counsel over the effect which publicity might have on a fair trial of that case. This appears in motions of the defendants for change of place of trial and for continuances and from various colloquies between court and counsel. The hazard arose to some extent from published and broadcast reports of the Echo Ampitheater incidents which were the basis of the then pending federal charges, but more importantly from publicity relating to events at Tierra Amarilla which caused state charges to be made against some of the defendants, and from a variety of public statements made by a number of individuals.
The trial court found that the statements of Tijerina and Noll were wilful and deliberate; and that the statements “created a danger to the rights of these defendants and their co-defendants and the Government to a fair and impartial trial by jury * *
In colorful and demagogic language Tijerina and Noll addressed their followers on the merits of the case. Tijerina boasted that he “told the witnesses what to say and what to do.” He charged that the judge “is using the law to take vengeance and drink blood and humilate our race.” Noll said that the United States has declared that he and his co-defendants “are criminals and that it was going to try us and put us to death.” Tijerina urged a “march around the court house” and Noll suggested “a scorched earth policy.” In the context in which they were made such public utterances while a criminal trial was pending are not compatible with the concept of a fair trial. We are aware of the recent admonition that appellate courts “must constantly have in mind that their function is not to decide factual issues de novo.” Zenith Radio Corporation v. Hazeltine Research, Inc., 395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129. The findings of the trial court are not clearly erroneous. On the entire evidence we are not “left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746. We are convinced that if the order was valid, Tijerina and Noll violated it.
The defendants argue that the order forbidding extrajudicial statements violates their rights under the First, Fifth, and Sixth Amendments. At the outset it must be noted that in colloquies between the court and counsel an order against extrajudicial statements was discussed. Mention was made of the forthcoming Alianza Convention. The court disclosed to counsel the order which it intended to enter and which did not except the convention. No objection was made to the order entered and no effort was made to get it modified or reviewed. When a court has jurisdiction of the subject matter and person, its orders must be obeyed until reversed for error by orderly review. See Dunn v. United States, 10 Cir., 388 F.2d 511, 513, and cases cited in footnote 2. This should dispose of the matter, but the circumstances of the case are such that the constitutional claims merit discussion.
The prime argument of the defendants is that the order infringes on the defendants’ rights of free speech guaranteed by the First Amendment. Many volumes have been written on the subject of fair trial and free speech. The problem here is unusual in that the defendants are complaining against the application of such an order to them. The theory of the defense seems to be that because the order was entered for their protection, they cannot be charged with a violation. We do not agree. The public has an overriding interest that justice be done in a controversy between the government and individuals and has the right to demand and expect “fair trials designed to end in just judgments.” Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974; and Mares v. United States, 10 Cir., 383 F.2d 805, 808 and 809. This objective may be thwarted unless an order against extrajudicial statements applies to all parties to a controversy. The concept of a fair trial applies both to the prosecution and the defense.
The defendants say that the order violates the First Amendment because it fails to meet the clear and present danger test. See Bridges v. California, 314 U.S. 252, 263, 271, 62 S.Ct. 190, 86 L.Ed. 192; Pennekamp v. Florida, 328 U.S. 331, 347-348, 66 S.Ct. 1029, 90 L.Ed. 1295; Craig v. Harney, 331 U.S. 367, 376, 67 S.Ct. 1249, 91 L.Ed. 1546; and Wood v. Georgia, 370 U.S. 375, 383-385, 82 S.Ct. 1364, 8 L.Ed.2d 569. None of the foregoing decisions considered a situation where the contempt arose from the violation of an order. They were all concerned with extrajudicial statements which, in the absence of a prohibitive order, were said to obstruct the administration of justice and have an adverse effect on the right to a fair trial. Here we have the violation of a court order.
Counsel attack the order on the ground that it is not based on a clear and present danger. The order is based on a “reasonable likelihood” of prejudicial news which would make difficult the impaneling of an impartial jury and tend to prevent a fair trial. We believe that reasonable likelihood suffices. The Supreme Court has never said that a clear and present danger to the right of a fair trial must exist before a trial court can forbid extrajudicial statements about the trial.
The responsibility of a trial judge to exercise the control necessary to assure a fair trial is emphasized by the decision in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600. The Court said that control of the sources of prejudicial news items is “coneededly within the court’s power” and that the court “might well have proscribed extrajudicial statements by any lawyer, party, witness, or court official which divulged prejudicial matters.” Id. at 361, 86 S.Ct. at 1521.
The Court said further, Id. at 363, 86 S.Ct. at 1522:
“The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function.”
Defense counsel argue that the quoted statements from Sheppard are dicta and have no binding force. We are not persuaded. The Court did not make gratuitous remarks which were not relevant to the issue for decision. In our opinion it established guidelines necessary to assure a fair trial in a case which attracted wide publicity. The failure of the trial court in Sheppard to apply and use the procedures, which the Supreme Court said were appropriate, resulted in a reversal.
The ultimate question is whether the application to the defendants of an order against extrajudicial statements violates their rights of freedom of speech. The defense argument necessarily places freedom of speech in a preferred position above fair trial. Some decisions of the Supreme Court place First Amendment rights in a preferred position. See e.g. Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 89 L.Ed. 430, and discussion of the subject in concurring opinion of Justice Frankfurter in Kovacs v. Cooper, 336 U.S. 77, 95-96, 69 S.Ct. 448, 93 L.Ed. 513. This preferred position has never been approved in a case where a balance must be had between free speech and fair trial. Indeed, the Court has awarded the preference to fair trial. In Estes v. Texas, 381 U.S. 532, 540-541, 85 S.Ct. 1628, 1632, 14 L.Ed.2d 543, the Court said:
“We have always held that the atmosphere essential to the preservation of a fair trial — the most fundamental of all freedoms — must be maintained at all costs. Our approach has been through rules, contempt proceedings and reversal of convictions obtained under unfair conditions. Here the remedy is clear and certain of application and it is our duty to continue to enforce the principles that from time immemorial have proven efficacious and necessary to a fair trial.”
The order against extrajudicial statements was designed to maintain the atmosphere essential to the preservation of a fair trial, “the most fundamental of all freedoms.” Both the defendants and the public have the right to expect that justice will be done. The defendants have the protection of the order and the responsibility to obey it. Their rights under the First Amendment were not infringed.
The Fifth Amendment argument is that the order is so broad and vague that it denies due process. We are not so persuaded. The order specifies the persons who are affected, the time when it is in effect, and the conduct which is forbidden. If greater particularity were needed, the defendants could have sought a clarification. They did not do so.
The Sixth Amendment argument is even less convincing. The guarantee of a public trial means a public trial in the courthouse, not in a convention hall.
Affirmed.
. The full text of the order follows:
“This matter coming on for consideration by the Court upon its own Motion, and it appearing to the Court that there is a reasonable likelihood that prejudicial news prior to trial would render more difficult the impaneling of a fair and impartial jury and would tend to prevent a fair trial and that the Court should enter an order seeking to prevent difficulties in these regards: Now, Therefore,
IT IS BY THE COURT ORDERED:
1. This Order is binding on all attorneys, both for the Government and the defense, on each of the defendants, and on each witness for both sides. It shall remain in force during the pendency of this action in this court.
2. No party covered by this Order shall make or issue any public statement, written or oral, either at a public meeting or occasion or for public reporting or dissemination in any fashion regarding the jury or jurors in this case, prospective or selected, the merits of the case, the evidence, actual or anticipated, the witnesses or rulings of the Court. This Order does not apply to statements made, evidence given, or pleadings filed in this action. Of course, all proceedings in the action are and will continue to be public and matters of public record.
3. No person covered by this Order shall avoid the effect of it by actions which indirectly, but deliberately bring about a violation of this Order.
A copy of this Order shall be served on each party named above immediately upon its entry, and, as each witness is subpoenaed, a copy of this Order shall be served on him with the service of a subpoena.”
. The Alianza Federal de Mercedes mentioned in our opinion in the criminal case, 407 F.2d 351, had been dissolved and the new organization created.
. The reference to the events at Echo Ampitheater relates to the activities which caused the then pending federal charges. The reference to Tierra Amarilla is to an unrelated state case.
. In the contempt proceedings the trial court said that it would take judicial notice of the file in the criminal ease.
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:
|
sc_petitioner
|
055
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
LEAL GARCIA, aka LEAL v. TEXAS
No. 11-5001 (11A1).
Decided July 7, 2011
Together with No. 11-5002 (11A2), In re Leal Garcia, on application for stay and on petition for writ of habeas corpus, and No. 11-5081 (11A21), Leal Garcia v. Thaler, on application for stay and on petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit.
Per Curiam.
Petitioner Humberto Leal Garcia (Leal) is a Mexican national who has lived in the United States since before the age of two. In 1994, he kidnaped 16-year-old Adria Sauceda, raped her with a large stick, and bludgeoned her to death with a piece of asphalt. He was convicted of murder and sentenced to death by a Texas court. He now seeks a stay of execution on the ground that his conviction was obtained in violation of the Vienna Convention on Consular Relations (Vienna Convention), Apr. 24, 1963, 21 U. S. T. 77, T. I. A. S. No. 6820. He relies on Case Concerning Avena and Other Mexican Nationals (Mex. v. U. S.), 2004 I. C. J. 12 (Judgt. of Mar. 31), in which the International Court of Justice (ICJ) held that the United States had violated the Vienna Convention by failing to notify him of his right to consular assistance. His argument is foreclosed by Medellin v. Texas, 552 U. S. 491 (2008) (Medellin I), in which we held that neither the Avena decision nor the President’s memorandum purporting to implement that decision constituted directly enforceable federal law. 552 U. S., at 498-499.
Leal and the United States ask us to stay the execution so that Congress may consider whether to enact legislation implementing the Avena decision. Leal contends that the Due Process Clause prohibits Texas from executing him while such legislation is under consideration. This argument is meritless. The Due Process Clause does not prohibit a State from carrying out a lawful judgment in light of unenacted legislation that might someday authorize a collateral attack on that judgment.
The United States does not endorse Leal’s due process claim. Instead, it asks us to stay the execution until January 2012 in support of our “future jurisdiction to review the judgment in a proceeding" under this yet-to-be-enacted legislation. Brief for United States as Amicus Curiae 2-3, n. 1. It relies on the fact that on June 14/2011, Senator Patrick Leahy introduced implementing legislation in the Senate with the Executive Branch’s support. No implementing legislation has been introduced in the House.
We reject this suggestion. First, we are doubtful that it is ever appropriate to stay a lower court judgment in light of unenacted legislation. Our task is to rule on what the law is, not what it might eventually be. In light of Medellin /, it is clear that there is no “fair prospect that a majority of the Court will conclude that the decision below was erroneous,” O’Brien v. O’Laughlin, 557 U. S. 1801, 1302 (2009) (Breyer, J., in chambers), and our task should be at an end. Neither the United States nor Justice Breyer, post, p. 943 (dissenting opinion), cites a single instance in this Court’s history in which a stay issued under analogous circumstances.
Even if there were circumstances under which a stay could issue in light of proposed legislation, this action would not present them. Medellin himself sought a stay of execution on the ground that Congress might enact implementing legislation. We denied his stay application, explaining that “Congress has not progressed beyond the bare introduction of a bill in the four years since the ICJ ruling and the four months since our ruling in [Medellin I].” Medellín v. Texas, 554 U. S. 759, 760 (2008) (per curiam) (Medellin II). It has now been seven years since the ICJ ruling and three years since our decision in Medellin I, making a stay based on the bare introduction of a bill in a single house of Congress even less justified. If a statute implementing Avena had genuinely been a priority for the political branches, it would have been enacted by now.
The United States and Justice Breyer complain of the grave international consequences that will follow from Leal’s execution. Post, at 946. Congress evidently did not find these consequences sufficiently grave to prompt its enactment of implementing legislation, and we will follow the law as written by Congress. We have no authority to stay an execution in light of an “appeal of the President,” post, at 947, presenting free-ranging assertions of foreign policy consequences, when those assertions come unaccompanied by a persuasive legal claim.
Finally, we noted in Medellin II that “[t]he beginning premise for any stay ... must be that petitioner’s confession was obtained unlawfully,” and that “[t]he United States has not wavered in its position that petitioner was not prejudiced by his lack of consular access.” 554 U. S., at 760. Here, the United States studiously refuses to argue that Leal was prejudiced by the Vienna Convention violation, contending instead that the Court should issue a stay simply in light of the possibility that Leal might be able to bring a Vienna Convention claim in federal court, regardless of whether his conviction will be found to be invalid. We decline to follow the United States' suggestion of granting a stay to allow Leal to bring a claim based on hypothetical legislation when it cannot even bring itself to say that his attempt to overturn his conviction has any prospect of success. We may note that in a portion of its opinion vacated by the Fifth Circuit on procedural grounds, the District Court found that any violation of the Vienna Convention would have been harmless. Leal v. Quarterman, 2007 WL 4521519, *7 (WD Tex., Dec. 17, 2007), vacated in part sub nom. Leal Garcia v. Quarterman, 573 F. 3d 214, 224-225 (2009).
The applications for stay of execution presented to Justice Scalia and by him referred to the Court are denied. The petition for a writ of habeas corpus is denied.
It is so ordered.
Tho United Statoo’ motion for- leave to file an amicus brief is granted.
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_casetyp1_7-2
|
C
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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".
STORER v. OCEAN ACCIDENT & GUARANTEE CORPORATION, Limited, et al.
No. 6798.
Circuit Court of Appeals, Sixth Circuit.
Dec. 6, 1935.
Tom Stahl, of Fremont, Ohio (Stahl, Stahl & Stahl, of Fremont, Ohio, on the brief), for appellant.
R. O. Holloway, of Toledo, Ohio (Holloway, Peppers & Romanoff, of Toledo, Ohio, on the brief), for appellees.
Before MOORMAN, HICKS, and ALLEN, Circuit Judges.
HICKS, Circuit Judge.
Amelda Baechle (now Storer) recovered a judgment in a common pleas court of Ohio against Norman Strohl and Isadore Lepley for damages for injuries received by her in an automobile collision. The-judgment became final as to Strohl and remained unsatisfied, whereupon appellant brought this action under the provisions of sections 9510 — 3 and 9510 — 4 of the General Code of Ohio against Strohl and the Ocean Accident & Guarantee Corporation, Limited (hereinafter called appellee), on an insurance policy issued by it. The case was transferred to the equity side of the docket.
On June 9, 1929, appellant and Norman Strohl went on a pleasure ride in a car owned by Elmer J. Strohl, Norman’s father. The car was driven by Norman with the permission and consent of his father. While young Strohl was parked at a gasoline station he observed another car, driven by Lepley, traveling west. In a short time he followed it, overtaking it 3.7 miles from the filling station. The collision occurred as Strohl attempted to pass upon the left side of Lepley’s car.
In the policy appellee agreed, subject to conditions therein contained, to pay all sums for which the assured should become liable as damages for personal bodily injuries caused as the result of the use of the automobile. Under a provision of the policy, Norman Strohl was an “additional assured,” and it further provided that the assured should co-operate with the insurance company in all matters which the company deemed necessary in the defense of any suit. Appellee defended upon the ground that Norman Strohl breached this condition of the policy not only in failing to cooperate in the defense of the suit, but in fraudulently colluding with appellant in its. commencement and prosecution.
Some time after the accident, appellant, at the instance of Elmer J. Strohl, and accompanied by her father and mother, Norman Strohl and Scott Wolf, an agent of appellee, called at the office of Stahl, Stahl & Stahl, attorneys, and discussed with them the matter of making a claim against Lepley. As a result of the conference, the attorneys advised that suit should be -brought not only against Lepley, but against Norman Strohl also. Suit was instituted and the basis of the claim was the combined and concurring negligence of Strohl in driving at an excessive rate of speed and of Lepley in turning to the left at the point of collision without extending his left hand or displaying his stop light.
Before the commencement of the suit Norman Strohl gave a written statement to appellee that at the time of the accident he was going at a rate of speed of 30 to 35 miles per hour. Appellee under its contract assumed the defense of Strohl, and while the first trial was in progress Strohl again represented to the attorneys furnished him that he was going at the above rate of speed. The significance of these statements is apparent when it is stated that under the statutes of Ohio, in effect at the time of the accident, a speed in excess of 35 miles per hour was prima facie evidence of negligence upon the part of Strohl. If he was not violating the statute, he had a substantial defense. After suit was brought, but before it was tried, Norman Strohl, who had previously been employed for a short time by Stahl, Stahl & Stahl, visited their office and discussed the case with one of the firm. About a week before the case was tried he went again to the office at the request of a member of the firm and answered questions then asked him concerning the accident. He never apprised appellee of these visits.
On the first day of the trial and before the afternoon recess appellant’s attorneys, following statutory procedure in Ohio, called Norman Strohl for cross-examination and examined him, but not concerning the matter of speed. His testimony was not concluded before the recess. During the recess John Stahl, of counsel for appellant, went into a room near the courtroom and while he was there Norman Strohl also entered the room, either voluntarily or by request of Stahl. The evidence is conflicting as to what occurred in this room. Strohl testified that Stahl motioned him to come in and suggested that he should testify that he was going from 40 to 45 miles an hour at the time of the accident and that any one would know that he was going faster than 35 miles an hour. This conversation between Stahl and Strohl was private and out of the presence of Strohl’s attorneys, who were in the courtroom at the time. After the recess Strohl resumed the witness stand, his cross-examination was continued, and in reply to questions of appellant’s counsel he testified that at the time of the accident he was going at a speed of between 35 and 40 miles per hour. Pie repeated this statement twice.
This testimony so directly contradicted his previous signed statement that his counsel naturally questioned him concerning it; whereupon he made an affidavit to the effect that John Stahl had insisted that he “change his story as to speed”; that, “He said for me to say I was going faster than thirty-five (35) miles per hour. When he called for me to testify on cross-examination, I testified that I was going thirty-five (35) to forty (40) miles per hour. My true speed was thirty (30) to thirty-five (35) miles per hour. If John Stahl wouldn’t have got me to change my story I would have testified to the truth as to speed. I read this statement and it is true.”
Thereupon, after adjournment for the day, Strohl and his attorney disclosed the entire matter to the trial judge, and on the next morning the attorney, by direction of the court, recalled Strohl, who then testified that he desired to correct his previous testimony with respect to speed, that he was only going from 30 to 35 miles per hour. He explained that the conversation with John Stahl during the afternoon recess had induced his previous testimony and he related that conversation substantially as it is above set forth and further testified that the facts contained in his affidavit were true. The affidavit was received in evidence, whereupon the court entered a mistrial.
Stahl at first made what is styled a “professional statement” to the court that Strohl came into the room voluntarily; that there was a general conversation touching his testimony, and that he stated to Strohl that his statement on the witness stand hot only differed from the written statement made to appellant’s attorneys from what he, Strohl, had told him in the office, but denied that he suggested to Strohl to testify to any particular thing or to change his testimony. Stahl was evidently confused in substantial portions of his statement, since Strohl had not up to that time given any testimony concerning speed. He testified at the hearing of the present controversy that Strohl came into the room, that something was said about his testimony, and that he, Stahl, remarked in substance that the jury would not be impressed with testimony that Strohl caught up with some one in 3% miles when he was five to seven minutes behind him and going 35 miles an hour. He testified on cross-examination that in his talk with Strohl he stated that if he, Strohl, stopped at the gas station five or ten minutes and Lepley was only going at the rate of 20 miles per hour the jury would not be impressed with testimony that he, Strohl, was traveling at the rate of 30 to 35 miles per hour.
Upon a second trial in the common pleas court, Strohl was again called by appellant for cross-examination and testified that 50 feet from the point of the collision he was going at the rate of 30 to 35 miles per hour. After appellant had rested her case, defendant Lepley called Strohl for cross-examination. He was shown his affidavit executed at the previous trial and stated that he had sworn therein that he had testified falsely in that trial; that he was in fact going between 30 and 35 miles per hour and that his former testimony that he was going 35 to 40 miles per hour was at the suggestion of John Stahl. Thereupon the affidavit was again offered in evidence by counsel for Lepley and was received.
The above narrative of the controlling facts is in substantial accord with the findings made by the District Court. The court sustained appellee’s contention and dismissed the petition. We think the decree was right.
The co-operation clause was both material and important. Its purpose was twofold: (1) To require the insured to aid in preparing the case for trial and in making proper defense; and (2) to prevent collusion between the insured and a friendly claimant. “When the condition was broken, the policy was at an end, if the insurer so elected.” Coleman v. New Amsterdam Cas. Co., 247 N.Y. 271, 160 N.E. 367, 369, 72 A.L.R. 1443. See, also, Royal Indemnity Co. v. Morris, 37 F.(2d) 90, 93 (C.C.A.9).
Whether Strohl failed to co-operate was to be determined by proper inferences to be drawn from the facts, and we think that the decided weight of the evidence, considered in the aggregate, is that he not only failed, but that he purposely intended through false testimony to aid appellant in recovering a judgment against himself, eventually to be paid by appellee. His friendly relationship with appellant, his private conferences with her attorneys, both before and at the first trial, and his repeated admissions under oath that he had testified falsely upon the first trial concerning the vital issue in the case, leave little room for any other conclusion. See Ocean Accident & Guarantee Corporation v. Lucas, 74 F.(2d) 115, 117, 98 A.L.R. 1461 (C.C.A.6); Ohrbach v. Preferred Accident Ins. Co. of New York, 227 App.Div. 311, 237 N.Y.S. 494; Solomon v. Preferred Accident Ins. Co. of New York, 132 Misc. 134, 229 N.Y.S. 257. It matters not whether the purpose originated in his own mind or was induced by another, the effect was the same — a breach in a condition of the policy. The overwhelming preponderance of the evidence is against any suggestion that Strohl’s testimony to the effect that he was driving 35 or 40 miles per hour was truthful or that from lapse of memory or other cause he was honestly mistaken.
We may assume that Strohl testified truthfully upon the second trial, but the condition already broken was not thereby restored. Nor can it be said that appellee then had the benefit of the truth because Strohl was not only confronted with his own contradictory aifidavit, .but with his repeated confessions that he had sworn falsely upon the first trial, and the verdict indicated that his credibility was destroyed. It is manifest that Norman Strohl would be repulsed if he were seeking indemnity and appellant has acquired no higher right. Gen. Code of Ohio, §§ 9510-3 and 9510-4. Stacey v. Fidelity & Casualty Co. of New York, 114 Ohio St. 633, 641, 151 N.E. 718.
Other assignments of error have been considered, and, being found without merit, are overruled.
Decree affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
sc_casedisposition
|
D
|
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.
CHICAGO & NORTH WESTERN RAILWAY CO. et al. v. ATCHISON, TOPEKA & SANTA FE RAILWAY CO. et al.
No. 8.
Argued April 19, 1967.
Decided May 29, 1967
Hugh B. Cox argued the cause for appellants in No. 8. With him on the briefs were William H. Allen, Nuel D. Belnap, Richard M. Freeman, Bryce L. Hamilton, Raymond K. Merrill and Nye F. Morehouse.
Arthur J. Cerra argued the cause for the United States et al. in No. 23. With him on the brief were Solicitor General Marshall, Assistant Attorney General Turner, Robert B. Hummel, Jerry Z. Pruzansky and Robert W. Ginnane.
Howard J. Trienens argued the cause for appellees Atchison, Topeka & Santa Fe Railway Co. et al. With him on the brief were Douglas F. Smith, George L. Saunders, Jr., and Gary L. Cowan. George L. Saunders, Jr., argued the cause for appellees Missouri-Kansas-Texas Railroad Co. et al. With him on the brief was John E. McCullough. Calvin L. Rampton argued the cause for appellees Arizona Corporation Commission et al. With him on the brief were Robert Y. Thornton and Richard W. Sabin. Cyril M. Saroyan argued the cause for appel-lees the State of California et al. With him on the brief were Mary Moran Pajalich and J. Thomason Phelps.
Walter R. McDonald filed a brief for the Southern Governors’ Conference et al., as amici curiae, in No. 23.
Together with No. 23, United States et al. v. Atchison, Topeka & Santa Fe Railway Co. et al., also on appeal from the same court.
Me. Justice Stewart
delivered the opinion the Court.
This is a controversy between the Mountain-Pacific railroads and certain Midwestern railroads, involving the proper division between them of joint rates from through freight service in which they both participate. Dissatisfied with their share of existing divisions, the Midwestern carriers called upon the Interstate Commerce Commission’s statutory authority to determine that joint rate divisions “are or will be unjust, unreasonable, inequitable, or unduly preferential,” and to prescribe “just, reasonable, and equitable divisions” in their place. The Commission found that the existing divisions were unlawful, and established new divisions which, on the average, gave the Midwestern carriers a greater share of the joint rates. The District Court set aside the Commission’s order on the ground that certain of its findings were deficient. We noted probable jurisdiction, 383 U. S. 964, to consider important questions regarding the Commission’s powers and procedures raised by the District Court’s decision.
I.
There were originally three groups of railroads involved in the proceedings before the Commission: the Eastern, Midwestern, and Mountain-Pacific carriers. The Eastern railroads operate in the northeastern area of the United States extending south to the Ohio River and parts of Virginia and west to central Illinois. Midwestern Territory lies between Eastern Territory and the Rocky Mountains, and the rest of the United States to the west constitutes Mountain-Pacific Territory. The latter is subdivided into Transcontinental Territory — comprising the States bordering the Pacific, Nevada, Arizona, and parts of Idaho, Utah, and New Mexico — and Inter-mountain Territory. The railroads operating in Southern Territory, which includes the southeastern United. States, were not involved in the proceedings before the Commission.
Railroads customarily establish joint through rates for interterritorial freight service, and the divisions of these rates, fixed by the Commission or by agreement, determine what share of the joint tariffs each of the several participating carriers receives. See St. Louis S. W. R. Co. v. United States, 245 U. S. 136, 139-140, n. 2. In 1954 the Eastern carriers filed a complaint with the Commission seeking a greater share of the joint tariff on freight traffic east and west between Eastern Territory and Transcontinental Territory. Shortly thereafter, the Midwestern carriers also filed a complaint, requesting higher divisions on (1) their intermediate service on Eastern-Transcontinental traffic, (2) their service on freight traffic east and west between Midwestern Territory and Transcontinental Territory. Some of the Midwestern lines had long believed that the Mountain-Pacific carriers enjoyed an unduly high share of the joint tariffs for these categories of traffic. When joint rates for traffic to the western United States were first established in the 1870’s, rates were divided on the basis of the miles of carriage rendered by the participating railroads, but the Mountain-Pacific carriers enjoyed a 50% inflation in their mileage factor. In 1925, after the Commission had begun, but not yet completed, an investigation of the existing divisions, the Mountain-Pacific carriers agreed to modest increases in the Midwestern railroads' share of joint rates. The divisions between Mountain-Pacific and Midwestern carriers have remained unchanged since that time.
In the proceedings before the Commission, which consolidated the Eastern and the Midwestern complaints, the Mountain-Pacific railroads not only defended the existing divisions, but sought a 10% increase in their share. Regulatory commissions of States in Mountain-Pacific Territory also intervened. The consolidated proceedings involved rate divisions affecting about 300 railroads, which voluntarily aligned themselves into three groups— Eastern, Midwestern, and Mountain-Pacific — and submitted evidence and tried the case on this group basis. A great deal of time was consumed in compiling and introducing massive amounts of evidence — more than 800 exhibits and over 11,200 pages of testimony. The Hearing Examiners made a recommended report in 1960. After considering written briefs and oral arguments from the various groups of parties, the Commission issued its original report in March of 1963. The Commission found the existing divisions to be unlawful, and prescribed increased divisions for the Midwestern and Eastern carriers, effective July 1, 1963.
When exercising its statutory authority to establish “just and reasonable” divisions under § 15 (6) of the Interstate Commerce Act, the Commission is required to:
“[G]ive due consideration, among other things, to the efficiency with which the carriers concerned are operated, the amount of revenue required to pay their respective operating expenses, taxes, and a fair return on their railway property held for and used in the service of transportation, and the importance to the public of the transportation services of such carriers; and also whether any particular participating carrier is an originating, intermediate, or delivering line, and any other fact or circumstance which would ordinarily, without regard to the mileage haul, entitle one carrier to a greater or less proportion than another carrier of the joint rate, fare or charge.”
After reviewing the nature of the traffic involved and considering the special claims of the various groups, the Commission found that “none of the contending groups is more or less efficiently operated than another,” and that “there are no differences in the importance to the public attributable to the three contending groups of carriers.” Its decision thus turned on more direct financial considerations, to which the Commission devoted a substantial part of its lengthy report. Under Commission practice, these financial considerations are divided into “cost of service” and “revenue needs.” The former consists of the out-of-pocket expenses directly associated with a particular service, including operating costs, taxes, and a four percent return on the property involved. “Revenue needs” refers to broader requirements for funds in excess of out-of-pocket expenses, including funds for new investment.
In determining cost of service, the Commission relied upon a cost study prepared by the Mountain-Pacific railroads, but introduced certain modifications that produced different results. The Commission found that existing divisions on Eastern-Transcontinental traffic gave the Mountain-Pacific carriers revenues that exceeded their costs by 57%, while the Midwestern and Eastern railroads received only 43% and 22% more, respectively, than their costs for the service they contributed. On Midwestern-Transcontinental traffic, the Commission found that the divisions gave the Mountain-Pacific carriers revenues 71% above cost, while the Midwestern lines received only 39% above cost; on this traffic the Midwestern railroads bore 31.5% of the total cost but received only 27.1% of the total revenue.
In assessing comparative revenue needs, the Commission found, that the average rate of return for 1946-1958, based on net railway operating income from all services as a percentage of the value of invested property, was 3.40% for the Eastern roads, 3.49% for the Midwestern group, and 4.64% for the Mountain-Pacific carriers. The Commission also found that the Mountain-Pacific railroads had the most favorable record and trend in both freight volume and freight revenues, and the Eastern railroads the least favorable, with the Midwestern roads occupying an intermediate position. In response to the Mountain-Pacific carriers’ complaint that their net operating income from all services had not increased as fast as net investment in recent years, the Commission noted that this was primarily due to disproportionate passenger deficits that offset favorable income from freight services. The Commission also discounted the contention that the Mountain-Pacific carriers were entitled to greater revenues to provide funds for new investment, finding that the needs of the various carrier groups for such funds were not appreciably different. The claim of the Midwestern carriers that they had the most pressing need for revenues was also rejected by the Commission.
From all this evidence, the Commission concluded “that there should be increases in [the Eastern carriers’] divisions reflecting revenue need as well as cost.” While the very poor financial position and high revenue needs of the Eastern carriers were thus important elements in prescribing increases in their divisions, the Commission went on to find cost considerations the controlling factor with regard to the Midwestern divisions: “As between the [Mountain-Pacific railroads] and the [Midwestern] railroads the differences in earning power are less marked, but our consideration of the evidence bearing on cost of service previously discussed convinces us that the primary midwestern divisions as a whole are too low.”
In establishing higher divisions for the Eastern carriers, the Commission relied upon the existing percentages governing divisions of the various rates between well-defined subareas in Eastern Territory and points in Transcontinental Territory. The Commission simply increased the percentages that the Eastern carriers formerly received on this traffic. However, the Commission concluded that it could not follow this procedure with respect to Midwestern divisions on Eastern-Transcontinental and Midwestern-Transcontinental traffic. It found that Midwestern-Transcontinental subgroupings were not well-defined and were in some cases not properly related to distance. Thus it was not feasible to assemble rates from various Midwestern points to Transcontinental points into common groups and apply fixed percentage divisions to each group in order to determine the respective shares of the Midwestern and Mountain-Pacific carriers. Instead, the Commission resorted to a weighted mileage basis of apportionment, determined through the use of divisional scales. The Commission has frequently used such scales in the past, and their use in this case was suggested by both the Midwestern and Mountain-Pacific carriers. Under the system adopted, the mileage contributed by each carrier to the joint service is broken down into 50-mile blocks. The scale chosen assigns each block a number. A large number is assigned the first block, and a smaller number to successive 50-mile increments; this is designed to reflect terminal and standby costs incurred regardless of the length of carriage contributed. Each carrier then receives a share of the joint revenue in proportion to the sum of scale numbers corresponding to its mileage contribution. To determine the divisions between the Midwest-ern and Mountain-Pacific carriers, the Commission used a 29886 scale — so named because it was developed in another interterritorial divisions case bearing that docket number. This scale assigns a factor of 65 to the first 50-mile block of carriage and a factor of 12 to each successive 50-mile increment. The Commission decided that the Midwestern carriers’ shares would be determined by an unadjusted 29886 scale, but that the Mountain-Pacific carriers’ shares should be based on the same scale with the mileage factors inflated by 10% to reflect certain greater costs of carriage in the mountainous West. Thus, for their carriage, the Mountain-Pacific carriers would enjoy a factor of 72 for the first 50-mile block, and a factor of 13 for successive 50-mile increments. For any joint carriage, the Midwestern and Mountain-Pacific carriers would translate their mileage contributions into scale numbers, and divide the proceeds in proportion to the numbers so obtained. The divisions thus essentially reflect a mileage basis, with disproportionate weight assigned the first 50 miles of carriage and an overall inflation factor favoring the Mountain-Pacific carriers. The Commission found that the net effect of its revised scale would be to “produce moderate increases in some of the most important midwestern divisions.”
After entertaining petitions for reconsideration, the Commission adopted a supplemental report in late 1963. For the first time, a few carriers abandoned the three-group basis on which all the prior proceedings had been conducted. Requests for special treatment were made on behalf of one Mountain-Pacific road, the Denver & Rio Grande, and two Midwestern carriers, the Missouri-Kansas-Texas (Katy) and the St. Louis-San Francisco (Frisco), on the ground that the divisions prescribed by the Commission had an unduly harsh effect on them. The Commission considered and largely rejected these and other criticisms of its original decision, and issued a supplemental order substantially reaffirming its original order after making minor technical modifications.
Eleven of the Mountain-Pacific carriers brought an action in the District Court to enjoin and set aside the Commission’s orders and succeeded in obtaining preliminary injunctions. Other Mountain-Pacific carriers, the western state regulatory commissions, and the Katy and the Frisco intervened as plaintiffs, while the Eastern carriers and a group of Midwestern railroads intervened on the side of the Government and the Commission as defendants. In January 1965 the District Court handed down the decision setting aside the Commission’s orders. The court held that the findings made by the Commission with regard to the revenue need, cost of service, public importance, etc., of the Eastern, Midwestern, and Mountain-Pacific carriers were insufficient because they were made on a group basis. In the view of the District Court, the Interstate Commerce Act required the Commission to make such findings with respect to each of the 300 railroads involved, on an individual basis. The District Court further held that in a divisions case the Commission is obliged to determine, in precise dollar amount, the revenue needs of each individual railroad, and also the revenue effect on each individual railroad, again in precise dollar amount, of the new divisions that the Commission establishes. The District Court in conclusion stated:
"[T]hat to comply with... the Interstate Commerce and the Administrative Procedure Acts... the Commission is required to make affirmative findings which disclose that the requirements of Section 15 (6) have been met and the factors therein required have been determined and considered, not only as to the groups of roads involved but with respect to each carrier affected in said groups; that findings must be made as to the amount of revenue, in terms of dollars, required by the respective carriers affected in any new divisions prescribed, the financial effect of the Commission’s orders in terms of dollars as to the carriers and the extent to which the new divisions prescribed will produce the revenue found to be required...."
The Eastern carriers, the Midwestern defendants, and the Government and the Commission all appealed the decision of the District Court. Thereafter, all of the Eastern and some of the Midwestern carriers reached settlement agreements with the Mountain-Pacific carriers covering the rate divisions affecting them. We accordingly vacated the judgment of the District Court with respect to the divisions of the Eastern and the settling Midwestern railroads, and remanded the relevant portions of the appeals to the District Court with instructions to dismiss as moot. 383 U. S. 832, 384 U. S. 888. Thus, the principal dispute remaining concerns the divisions between the Mountain-Pacific carriers and the eight principal Midwestern roads that are appellants in No. 8.
II.
None of the appellees now defends the position, espoused by the District Court, that the Commission was required to make separate individual findings for each of the 300 railroads involved in the proceedings before it.
But the error in that position, which rejects over 40 years of consistent administrative practice, requires comment.
In its first decision involving rate divisions under § 15 (6), the New England Divisions Case, 261 U. S. 184, the Court upheld the authority of the Commission to take evidence and make findings on a group basis. Speaking for a unanimous Court, Mr. Justice Brandéis noted that the “actual necessities of procedure and administration” required procedures on a group basis in ratemaking cases, and that a similar practice was appropriate in divisions cases. The complexity of the subject matter and the multiplicity of carriers typically involved in divisions cases were such that a wooden requirement of individual findings would make effective regulation all but impossible. The Court held that the Interstate Commerce Act permits the Commission to proceed on a group basis and to rely on “evidence which the Commission assumed was typical in character, and ample in quantity” to justify its findings, reasoning that:
“Obviously, Congress intended that a method should be pursued by which the task, which it imposed upon the Commission, could be performed.... To require specific evidence, and separate adjudication, in respect to each division of each rate of each carrier, would be tantamount to denying the possibility of granting relief. We must assume that Congress knew this....” 261 U. S., at 196-197.
Both the Court and the Commission have consistently adhered to this construction of the Act’s requirements, and its rejection by the District Court in this case was error.
The pragmatic justifications for the Commission’s group procedures are obvious. Even on a group basis, the Commission proceedings in this case required a voluminous record and were not completed until nearly 10 years after the complaints were filed. To demand individual evidence and findings for each of the 300 carriers in the Commission proceedings would so inflate the record and prolong administrative adjudication that the Commission’s regulatory authority would be paralyzed.
Nor do considerations of fairness require disregard of administrative necessities. The premise of group proceedings, as the New England Divisions Case explicitly recognized, is that evidence pertaining to a group is typical of its individual members. 261 U. S., at 196-199. See also Beaumont, S. L. & W. R. Co. v. United States, 282 U. S. 74, 82-83. It has always been accepted that an individual carrier may challenge this premise and, on proper showing, receive independent consideration if its individual situation is so atypical that its inclusion in group consideration would be inappropriate. It is the Commission’s practice to accord independent treatment to an individual carrier when a proper request for special consideration is made. But no such requests were made during the hearings and presentation of evidence in this case. Instead, the individual carriers voluntarily aligned themselves into groups, presented evidence and tried the case on a group basis, and asked the Commission to prescribe new divisions on a group basis. In this situation, the Commission was not obliged on its own motion to demand evidence and make findings on an individual basis. Departure from the practicalities of group procedure is justified only when there is a real need for separate treatment of a given carrier; the individual carriers themselves, which have the closest understanding of their own situation and interests, are normally the appropriate parties to show that such need exists.
The Denver & Rio Grande, the Katy, and the Frisco did request independent consideration in petitions for reconsideration of the Commission’s original decision. Their claims will be discussed below in Part VI of this opinion, but it should be noted that at no point during the administrative hearings or the presentation of evidence did they raise any claim for separate treatment. Moreover, their contention basically is not that the group evidence or findings were unrepresentative, but rather that the divisions prescribed by the Commission have an unduly harsh impact on them. Even if it were assumed that the Commission’s- disposition of this contention was erroneous, that would be no ground for requiring the Commission to make individual findings for the rest of the 300 carriers involved.
III.
Among the errors that the District Court found in the Commission’s decision was its failure to state the revenue needs of each individual carrier in terms of precise dollar amount. While not defending the requirement of individual findings, the appellees do contend that the Commission was required to determine the revenue needs of the various carrier groups in precise dollar amount, and they also urge other errors in the Commission’s treatment of revenue needs. We believe, however, that in the case’s present posture these criticisms are largely misdirected.
In increasing the shares of the Eastern railroads the Commission did rely on revenue needs as well as costs, but it found costs alone the controlling factor in raising the divisions of the Midwestern carriers. In the conclusions in its original report, the Commission stated that there should be increases in the Eastern divisions “reflecting revenue need as well as cost,” but in the very next sentence it went on to say that as between the Midwestern and Mountain-Pacific roads, “differences in earning power are less marked, but our consideration of the evidence bearing on cost of service previously discussed convinces us that the primary midwestern divisions as a whole are too low.” Its reliance on costs alone in increasing the Midwestern shares is confirmed by the Commission’s supplemental report, in which it again rejected a request of the Midwestern carriers for even higher divisions based on their claim of pressing revenue needs: “It was our stated view that [increases in the Midwestern divisions] were supported by the evidence concerning cost of service, but that the proposal of the midwestern lines gave undue weight to their claimed revenue need.” Since revenue needs were important factors only with regard to the Eastern divisions, and those divisions are no longer in issue because the Eastern roads have settled with the Mountain-Pacific carriers, any errors committed by the Commission in its treatment of revenue needs are no longer relevant. But even assuming that the Commission did attach some limited significance to revenue needs in raising the Midwestern divisions, we cannot conclude that its treatment of revenue needs was legally inadequate. The Commission devoted over 25 pages of its reports to revenue needs. It discussed at length the proper basis for computing rates of return and found the rates of return for the various carrier groups; it also examined the record and trends in net railway operating income from all services, and from freight and passenger services considered separately.
The Commission placed considerable emphasis on rates of return in its discussion of comparative revenue needs. Following its established practice, it found that a value basis, rather than book cost, as urged by the Mountain-Pacific roads, was the proper method for calculating the investment base. The evidence disclosed that the Mountain-Pacific fines had enjoyed a 4.64% return, as opposed to 3.40% for the Eastern fines, and 3.49% for the Midwestern fines. The suggestion that these findings in terms of rate of return were insufficient because they did not express revenue needs in terms of absolute dollar amount is totally novel and unreasonable. This suggestion seems to stem from a misconception of the Commission’s function in divisions cases. Its task is not to transfer lump sums of cash from one carrier to another, but to “make divisions that colloquially may be said to be fair.” B. & O. R. Co. v. United States, 298 U. S. 349, 357. The relative financial strength of the carriers involved is a key factor in this task, see the New England Divisions Case, 261 U. S. 184, 189 — 192, and the use of comparative rates of return is an obviously appropriate basis for the exercise of administrative judgment. Rates of return are a familiar tool of analysis in the financial community. The Commission has long relied on this form of analysis in divisions cases, and in passing on the Commission’s performance in such cases, this Court has never suggested that ultimate findings of revenue need in terms of absolute dollar amount were required. Appellees are unable to suggest any clear regulatory purpose that would be served by such findings. We decline now to impose upon the Commission a rigid mechanical requirement that is without foundation in precedent, practice, or policy.
Appellees, especially the regulatory commissions, vigorously contend that reliance on rates of return showing the Mountain-Pacific carriers in a heavily favorable position was inappropriate because the Commission overlooked the Mountain-Pacific carriers’ disproportionate need for funds for new investment. It might be questioned whether forcing carriers in other parts of the country to accept divisions lower than those to which they would otherwise be entitled is a sensible means of raising funds for new investment in the Far West. But the Commission did not reach this issue because it found that the Mountain-Pacific carriers did not in fact have a greater need for investment funds than railroads elsewhere:
“We are unable to agree with the [Mountain-Pacific carriers] and [the regulatory commissions] that the public interest warrants increases in the divisions of the mountain-Pacific railroads in order to provide a source of investment funds required for enlarged facilities commensurate with industrial development in that region. The railroads in all sections of the country are faced with the continuing necessity of raising funds for additions and betterments and new equipment, and we cannot recognize any difference in the degree of this urgency among the territorial groups.”
The appellees have sought to convince us that this finding is factually incorrect, but we decline to invade the administrative province and second-guess the Commission on matters within its expert judgment. B. & O. R. Co. v. United States, 298 U. S. 349, 359; Alabama G.S.R. Co. v. United States, 340 U. S. 216, 227-228.
The appellees also contend that the Commission erred in its treatment of passenger deficits. In discussing revenue needs, the Commission pointed out that since 1950-1952 the Mountain-Pacific carriers had enjoyed substantial increases in operating revenue from freight services, while the freight revenue of the Eastern carriers had declined. It also noted that the Midwestern carriers’ freight revenues had remained relatively constant, and concluded that these comparative trends were likely to continue. The Mountain-Pacific carriers, however, complained that, despite their favorable trend in freight revenues and large amounts of new investment that they had recently made, their rate of return from all services had declined. In reply, the Commission observed that the Mountain-Pacific carriers’ passenger deficits had increased substantially since 1950-1952 and had offset their impressive performance in freight revenues.
The Mountain-Pacific roads now argue that the Commission’s decision to increase the Midwestern divisions was based almost exclusively on its treatment of Mountain-Pacific passenger deficits. They further contend that this treatment was invalid on the grounds that it constituted unfair procedural surprise, that the statute does not permit the Commission to differentiate railroads’ performance as freight carriers and passenger carriers when it assesses revenue needs in a freight rate divisions case, and that the Commission erred in assuming that, because their statistical passenger deficits had increased, the Mountain-Pacific carriers were capable of making a real improvement in their overall performance by reducing passenger service.
We regard the assumption that the Commission attached great importance to Mountain-Pacific passenger deficits in raising the Midwestern divisions as fanciful. As we have already noted, those increases were based exclusively or almost entirely on cost considerations. To the extent the Commission may have relied on comparative revenue needs, passenger deficits were not a significant factor. The discussion of passenger deficits in the Commission’s original report occurred primarily in the context of comparing the revenue needs of the Mountain-Pacific carriers with those of the Eastern roads, when the Commission emphasized that the Eastern railroads had been much more successful in curbing losses on passenger service than the Mountain-Pacific carriers. Any error in the Commission’s treatment of passenger deficits prejudiced the Midwestern as well as the Mountain-Pacific carriers, for in rejecting a Midwestern revenue needs argument in its supplemental report, the Commission noted that the Midwestern carriers had also done a much poorer job than the Eastern carriers in halting the swell of passenger deficits. Furthermore, the Commission did not ignore the overall financial strength of the various groups of carriers, but found that the Mountain-Pacific carriers’ rate of return from all services was substantially higher than that of either the Midwestern or Eastern carriers.
The claim of unfair surprise is strained in light of the fact that the Commission has frequently differentiated passenger and freight revenues in freight rate division cases. While passenger deficits did not become an important issue in this case until the report of the Hearing Examiners was handed down, the Commission relied upon statistics which were matters of public record, and the Mountain-Pacific carriers had ample opportunity to debate the issue in their exceptions to the Hearing Examiners’ report and their petitions for reconsideration of the Commission’s original decision. And while the Commission has sometimes acted to offset passenger deficits in freight rate cases, the issues are quite different when, in a divisions case, it is argued that carriers in one part of the country should subsidize the passenger operations of carriers elsewhere.
If the Commission were to give controlling weight to passenger deficits in a divisions case, it might be appropriate to take more evidence on the issue and discuss it in greater depth than the Commission did here. But in light of the fact that, in this case, passenger deficits were of negligible relevance to the Commission’s decision to increase the Midwestern divisions, we find no errors in the Commission’s findings and procedure on this point that would justify setting aside its order.
IV.
Rejection of the appellees’ attacks on the Commission’s treatment of revenue needs does not exhaust their arsenal. For they argue that the Commission’s findings on costs, which were the basis of its decision to raise the Midwestern divisions, were also infected with serious error.
All are agreed that the relevant costs are those of the Eastern-Transcontinental and Midwestern-Transcontinental freight traffic to which the divisions apply. But throughout the proceedings there has been sharp dispute as to the proper method of ascertaining these costs. At the beginning of the administrative hearings, the Midwestern and Eastern carriers relied principally on the Commission’s standard Rail Form A, a formulation based on average freight data which, as the Commission noted, “has been widely used as an acceptable means of comparing relative transportation costs.” The Mountain-Pacific carriers took the position that Rail Form A, based on averages of all freight service, was not a proper yardstick for measuring the costs of the particular traffic involved in the contested divisions, which, they maintained, had certain distinctive characteristics. The Mountain-Pacific roads prepared their own cost system, based upon a study of this traffic. The Midwestern and Eastern lines responded with other material, and the Midwestern carriers conducted their own special study of line-haul services. Disputes over the applicability of Rail Form A and the various approaches urged by the parties occupied a large part of the administrative proceedings. As the Commission observed:
“The evidence pertaining to the cost studies of the [Mountain-Pacific carriers] and the midwestern lines was extensive. In addition to the detailed testimony of the cost analysts who planned the studies and supervised their compilation, evidence was presented by many other witnesses concerned with operating, statistical, engineering, and mathematical aspects of the projects. In criticism of the studies the [Eastern carriers] and the midwestern lines also introduced detailed evidence of the same general nature and considerable bulk.”
After carefully considering this evidence, the Commission decided to base its cost findings on the special cost study and analysis prepared by the Mountain-Pacific carriers. However, it made certain adjustments in the Mountain-Pacific analysis which, in the judgment of the Commission, more accurately reflected the true costs of the traffic involved.
The Commission substituted its own ratio for empty-car returns, derived from Rail Form A, for that devised by the Mountain-Pacific carriers. It summarized its reasons for this choice in its supplemental report:
“It is difficult to ascribe the empty movement of a car to a particular commodity or class of traffic because of the variety of the lading, and the fact that cars used occasionally for hauling transcontinental traffic may at other times serve widely different uses, including local movements within each territory.... The defendants urge that insufficient consideration was given to special cars.... They would be included in [Rail Form A] tending to increase the empty-return ratios in all territories. Here they accounted for only about 4 percent of the total movement....
“Many special studies of empty-return movement were undertaken in these proceedings, each showing a different result. The deficiencies in the [Mountain-Pacific carriers’] studies of general-purpose boxcar empty return... are so serious in our opinion as to render them without value. We adhere to our prior finding that the 7-day studies made under an order of the Commission and based on uniform instructions to all the railroads as to how the studies were to be made, afford a more reliable basis of comparison among territories. Moreover, on the basis of the evidence in this record, the 7-day studies provide appropriate comparative ratios to the traffic in issue.”
The Commission also disagreed with the Mountain-Pacific study’s treatment of the “constant cost” element of road costs — that which is unrelated to volume of traffic. It found the accounting methods used to distribute these costs in Rail Form A to be more accurate. The Mountain-Pacific roads claimed that this method unduly favored the Midwestern lines by improperly ascribing the maintenance costs of branch and light-density main lines to the cost of their transcontinental traffic. The Commission, however, found that the evidence showed:
“[T]hat the proportion of branch line mileage for each group is almost the same and the amount of traffic on branch lines is so small that some other factors cause the lower unit cost in mountain-Pacific territory. The principal factor is clearly the high density of traffic, 76 percent higher than the Midwest.
“Although the cost per mile may be somewhat higher in mountainous territory, this higher cost is shared by so many more tons of traffic that the cost per ton-mile is lower.
“It is the light density on the main lines in the Midwest which causes [their] higher costs. These lines are used by bridge traffic, and it is, therefore, quite correct to charge this bridge traffic with its proportionate share of maintaining the lines over which it moves.”
The Commission made certain adjustment in the basis for determining locomotive costs; the Mountain-Pacific carriers’ objections to this adjustment were directed at the Commission’s reliance on differences it found between engine districts in Eastern Territory and those elsewhere. Any error in this adjustment is thus relevant only to the Eastern divisions, which are no longer in issue. The Commission also substituted Rail Form A treatment of car service costs, after finding that the Mountain-Pacific study ignored actual territorial differences in this item. Again, this issue related only to the Eastern divisions. In ascertaining the cost attributable to equipment used in the service at issue, the Commission chose a 4% rate of return on investment, a figure traditionally employed by it for this purpose, rather than the 6% figure urged by the Mountain-Pacific carriers. And, in harmony with its treatment of revenue needs, the Commission chose its standard value basis to measure the investment involved, rather than the book cost used by the Mountain-Pacific study.
From the Mountain-Pacific cost study, as adjusted in these particulars, the Commission found that the Mountain-Pacific carriers enjoyed a much higher margin of revenue over costs than did the Midwestern carriers, and for this reason prescribed increases in the Midwestern divisions.
In the proceedings before the District Court, the Mountain-Paeific carriers generally attacked the adjustments made by the Commission in their cost study, claiming that their approach more accurately reflected the costs involved. They particularly maintained that the Commission should have forced the Eastern and Midwestern carriers to produce evidence on empty-car return ratios on the same basis that the Mountain-Pacific carriers had used in their cost study. The Midwestern carriers, however, had come forward with specific empty-return data, and the Commission also observed that:
“In the prehearing conference in the instant cases the advisability of instituting an overall general investigation was discussed but the [Mountain-Pacific carriers] opposed the suggestion, and the matter was dropped.... Nor do we see in the record any basis for assuming that the eastern and midwestern complainants withheld vital evidence merely because they had different conceptions of the nature and extent of facts to be developed.”
The Mountain-Pacific carriers also contended that certain factual premises on which the Commission based its allocation of road maintenance costs were erroneous, and that there was no foundation for the Commission’s choice of a value basis for investment rather than book cost.
The District Court did not directly deal with these contentions, stating rather cryptically that in light of its conclusions on the revenue needs issues, “it is unnecessary to discuss [the cost issues]. However, no inference is to be drawn that the court is of the opinion that the [cost issues], or any other numbered issues not discussed in this opinion, are of the nature it would be required to decide should they be raised at some future time.”
The appellees argue that since the District Court failed to pass on the cost issues, we are precluded from doing so. It is true that we have occasionally stated that it is not our general practice “to review an administrative record in the first instance.” United States v. Great Northern R. Co., 343 U. S. 562, 578; Seaboard Air Line R. Co. v. United States, 382 U. S. 154, 157. But we think that policy is not applicable on the facts of this case. The presentation and discussion of evidence on cost issues constituted a dominant part of the lengthy administrative hearings, and the issues were thoroughly explored and contested before the Commission. Its factual findings and treatment of accounting problems concerned matters relating entirely to the special and complex peculiarities of the railroad industry. Our previous description of the Commission’s disposition of these matters is sufficient to show that its conclusions had reasoned foundation and were within the area of its expert judgment. B. & O. R. Co. v. United States, 298 U. S. 349, 359; New York v. United States, 331 U. S. 284, 328, 335, 349. Thirteen years have elapsed since the complaints in this case were first filed. The appellees’ attacks on the legal validity of the Commission’s findings on cost are so insubstantial that no useful purpose would be served by further proceedings in the District Court. We conclude that
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
songer_judgdisc
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the abuse of discretion by the trial judge favor the appellant?" This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
PLAUT v. MUNFORD.
No. 134, Docket 21695.
United States Court of Appeals Second Circuit.
Argued March 7, 1951.
Decided April 23, 1951.
Raymond E. Hackett and William H. Timbers, Stamford, Conn. (Cummings & Lockwood, Stamford, Conn., of counsel), for plaintiff-appellant.
Theron Lamar Caudle, Asst. Atty. Gen., Ellis N. Slack and William B. Waldo, Sp. Assts. to Atty. Gen., Adrian W. Maher, U. S. Atty. and Edward J. Lonergan, Asst. U. S. Atty., Hartford, Conn., for defendant-appellee.
Before L. HAND, Chief Judge and AUGUSTUS N. HAND and CLARK, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
In 1938 the plaintiff sold 15,700 shares of common stock of Lehn & Fink Products Corp. for $138,836.50. These shares represented, after stock split-ups and dividends, 600 shares of Lehn & Fink that he had inherited by specific bequest under the will of his father who had died on June 17, 1915. In his income tax return for 1938, when computing his capital gain on the sale of the 15,700 shares, the plaintiff reported $247.75 as the fair market value in 19Í5 of each of the 600 shares which he had inherited. This was the value fixed by the Surrogate of New York County in determining the New York transfer tax as of the date of the father’s death. In 1941, the plaintiff filed a claim for a refund alleging that the fair value of the Lehn & Fink stock in 1915 had been $5,142.85 per share, thereby eliminating the gain realized on the sale and any tax therefor. The claim was disallowed by the Commissioner and this action followed in the District Court. After trial and argument, Hincks, J., adopted the Surrogate’s valuation formula and upon correcting certain errors in his computations which are not challenged here, found the shares in question to be worth $610.36 apiece and gave judgment for $3,386.95, the amount of the resulting overpayment of tax, plus interest. The plaintiff appeals, asserting that the proper value was at least $3,150 per share.
Lehn & Fink was a clo-sely held family corporation engaged in the distribution of proprietary drugs and chemical products largely of German origin. In the years before 1915 its earnings had been fairly stable, but about doubled in 1915 when the death of its founder and the British blockade of its German sources of supply made its future obscure and the proper valuation of its stock a matter of unusual difficulty. The Surrogate and plaintiff’s and defendant’s experts all used substantially the same method of valuing the stock which involved a determination of earnings derived from good-will through deducting earnings attributable to tangible assets from total earnings, capitalizing the balance, and adding to the value of the tangible assets, the value of the good-will thus estimated in order to determine the value of the company as a whole. The great differences in asserted value of the stock resulted from the use of differing figures for tangible assets, of differing capitalization rates, and of different base earnings periods. The Surrogate took as his base average earnings for the 5 year period ending in 1915 discounting 1915 earnings to the level of 1914, and capitalized good-will at five times the earnings attributable thereto. He also wrote down certain accounts receivable to 75% of face, thereby decreasing the tangible assets. The plaintiff asserted that the single year 1915 was the proper base, that good-will should be capitalized at eight times earnings, that the accounts receivable were fully collectible, and that the District Court, in accepting the Surrogate’s formula, reached a clearly erroneous result.
The finding as to the value of the accounts receivable was one of fact supported by evidence and will not be disturbed here. By Treasury Regulation 101 Art. 113(a)(5)-!, the Surrogate’s appraisal was prima facie the fair market value of the stock in question at the time of the elder Plaut’s death. There is no question as to the validity of this regulation. Williams v. Commissioner, 8 Cir., 44 F.2d 467. It was proper to admit in evidence the record of the proceedings before the Surrogate to ascertain the weight to be given to his valuation. The District Court was quite within its discretion in deciding that plaintiff failed to rebut the Surrogate’s valuation of accounts receivable based on undisputed evidence in the record before him by merely showing that Lehn & Fink had written off very small amounts as bad debts in the years preceding 1915. The accounting treatment given overdue accounts may have little relation to their actual collectability and there was evidence that this was the case here. While there was no new testimony as to the value of the accounts before Judge Hincks there was such testimony before the Surrogate which evidence the Regulation made competent in the case at bar.
The District Court’s choice of earnings period and capitalization rate was not clearly erroneous. It was not bound to follow the testimony of the plaintiff’s expert. White & Wells Co. v. Commissioner, 2 Cir., 50 F.2d 120; Bryant v. Commissioner, 2 Cir., 76 F.2d 103; Rogers v. Helvering, 2 Cir., 107 F.2d 394. Plaintiff concedes that to prevail on this appeal he must establish not only that the District Court was wrong in its valuation but also the essential facts from which a correct determination might be made. Mahler v. Commissioner, 2 Cir., 119 F.2d 869, certiorari denied 314 U.S. 660, 62 S.Ct. 114, 86 L.Ed. 529. This he has failed to do for his expert’s use of Lehn & Fink’s earnings records was effectively shown to result in an unduly high valuation because he took earnings of 1915 as his criterion, which was an abnormally high year. See White & Wells Co. v. Commissioner, 2 Cir., 50 F.2d 120, 121.
It is true thar in 1916 there was a still further increase in earnings over all former years, but we cannot see how this great increase in 1915 could have been anticipated at the time of the death of plaintiff’s father for he appears to have been the mainspring of the business and his death might well have resulted in a recession in earnings. Whether, if we had been the finders of the facts, we would have entirely eliminated the increase of the 1915 over the 1914 earnings in computing the five year average, we need not say that hindsight required the inclusion of 1915 earnings at an increased amount. The probabilities were difficult to determine and proof by the plaintiff showing what part of the increase, if any, should be included in the average was lacking.
The plaintiff also introduced evidence of the value of listed stocks of corporations engaged in similar lines of business which by § 501 (k) of the Revenue Act of 1943, 26 U.S.C.A. § 811(k), ought to be considered in valuing unlisted securities such as those of Lehn & Fink and claims error because the District Court failed to give the value of those stocks sufficient weight. However, he did not show that the corporations offered by way of comparison had — like Lehn & Fink — suddenly increased their earnings in 1915 to double former amounts. Without such evidence their price times earnings and price times dividends ratios were not shown to be comparable to those of Lehn & Fink’s and the statute did not require their consideration.
After the first decision by Judge Hincks in the court below the plaintiff was granted a reargument and on reargument he sought to reopen the case by introducing additional evidence to impeach the Surrogate’s valuation. The plaintiff’s offer of proof failed to show that this evidence was newly discovered and it appeared from the record that the proposed witness was present at the original trial and was not called by the appellant. Refusal to accept the proffered evidence was not error.
Affirmed.
. Art. 113 (a) (5)-l. “Basis of property acquired by bequest, devise, or inheritance.—
* * * * * * *
“(c) Fair market value. — For the purposes of this article, the value of property as of the date of the death of the decedent as appraised for the purpose of the Federal estate tax or if the property is not appraised as of the date of death of the decedent for such purpose or if the estate is not subject to such tax, its value as appraised as of the date of the death of the decedent for the purpose of State inheritance or transmission taxes, shall be deemed to be its fair market value at the time of the death of the decedent.”
Question: Did the court's ruling on the abuse of discretion by the trial judge favor the appellant? This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_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).
COMMISSIONER OF INTERNAL REVENUE, v. STRAUS.
No. 10849.
United States Court of Appeals, Seventh Circuit.
Nov. 10, 1953.
H. Brian Holland, Asst. Atty. Gen., Joseph F. Goetten, Ellis N. Slack, Hilbert P. Zarky, Sp. Assts. to the Atty. Gen., for petitioner.
Roswell Magill, New York City (Allen H. Merrill and Albert Rosenblum, New York City, of counsel), for respondent.
Before DUFFY, FINNEGAN and LINDLEY, Circuit Judges.
FINNEGAN, Circuit Judge.
This is a petition by the Commissioner of Internal Revenue for review of a decision of the Tax Court entered on July 31, 1952, which decided that there was no deficiency in income tax for the year 1944 due from taxpayer Martin L. Straus, II.
The facts as found by the Tax Court may be summarized as follows:
In 1938, the taxpayer, Martin L. Straus, II, acquired certain stock of a corporation, then known as the Wahl Company, and hereinafter referred to as Eversharp, or as the Company. The corporation was engaged in the manufacture of writing implements and other products. In 1940, Straus owned more than 5000 shares of common stock and a considerable amount of the preferred stock of Wahl.
The taxpayer, Straus, had by that time become a director, and in December of 1940 was chosen as chairman of the executive committee of the board of directors. In the spring of 1941, he was elected president of the Company, and he continued to hold such offices for about ten years.
At the beginning of 1940 the Company, then known as Wahl, was in a very unsatisfactory condition. It had incurred losses in all but two of the sixteen years in which it had done business, and had paid no dividends on its common stock during most of the time. It was also heavily in arrears on dividends on its cumulative preferred stock. In 1940, the Company, under the direction of Straus, was reorganized by the merger into itself of one of its wholly owned subsidiaries. Its name was then changed to Eversharp, Inc.
Within a few months after the reorganization, the Company, under the direction of the taxpayer Straus, began the marketing of a new product and adopted a national advertising news program. It also made changes in its managerial personnel.
Upon the reorganization of 1940, the Company was authorized to issue 200,-000 shares of preferred stock, together with common stock. Stockholders had preemptive rights to subscribe to new shares of common stock issued in excess of 150,000 shares. Since 117,048 shares of common stock had been issued in the reorganization of the outstanding stock of the Wahl Company, there were left 32,952 shares of unissued common stock free from stockholders’ preemptive rights.
During the year 1941, the taxpayer Straus, and the executive committee of the Company discussed for the first time the adoption of the stock option plan which would reserve those shares for option at a future time at a fixed price to the executive and supervisory officials of the Company.
In October, 1942, Straus was asked by the Company’s Board of Directors to formulate a plan respecting the issuance of the 32,952 shares. On December 8 of that year, the Board unanimously agreed that such shares would be so issued over a period of three to five years and that all shares, whether issued then or later, should be sold to employees at a price of $6 per share. The market price of Ever-sharp’s common stock on December 8, 1942, was $4.50 per share, or $1.50 less than the price fixed by the Board.
The plan agreed upon at the December 8, 1942 meeting was formally adopted and embodied in a corporate resolution at the January 27, 1943, meeting of Eversharp’s Board. As set forth in the minutes of December 8th the stock option plan was adopted:
“* * * as a means of making it possible for the Company's principal officers and supervisory employees to increase their equity holdings in the Company and thereby insure the permanence of their association with the Company * * *”
The plan included the following terms of purchase, among others:
(1) the option price for all shares was fixed at $6 per share;
(2) the options were not assignable (except that in the event of the op-tionee’s death they passed to his personal representative); and
(3) the optionee was required still to be in the Company’s employ at the time the option was excercised (unless his employment had been terminated solely because of incapacity resulting from accident or ill health).
Under the resolution adopted at the January 27, 1943, meeting, 22,000 of the 32,952 shares reserved under the plan were then allotted to named individuals, including 10,000 shares to Straus. The balance of 10,952 shares not so allotted was reserved, earmarked and set aside for purchase “on the same terms, under similar options, from time to time in the future, by such other officers and employees of the Company as may be determined from time to time by the Executive Committee of the Board of Directors * *
On January 27, 1943, when the option plan was formally adopted by the Board, the market price of Eversharp’s common stock was $6.87 per share. On May 29, 1943, when the market price of the stock had increased to $17.25 per share, a written option agreement in respect of the 10,000 shares allotted to Straus on January 27, 1943, was issued to him. In a letter to the Company dated October 2, 1947, the Commissioner ruled that the purchase of 10,000 shares allotted to Straus and the 12,000 shares allotted to various other individuals on January 27, 1943, did not result in taxable income to them.
At a meeting originating on June 2, 1944, and reconvened on June 7, 1944, 2,500 additional shares were allotted to Straus under the Company’s stock option plan. These are the shares with which we are concerned in this case. A written option agreement with respect to those 2,500 additional shares was delivered to Straus on June 27, 1944. The terms of that agreement, including the price of $6 per share, were in accordance with the resolution of January 27, 1943, wherein, as stated above, the Board of Directors provided that the balance of the 10,952 unallotted shares was reserved, earmarked and set aside for purchase under the plan “on the same terms, under similar options, from time to time in the future, by such other officers and employees of the Company as may be determined from time to time by the Executive Committee of the Board of Directors; * * *”
On June 30, 1944, Straus exercised his option and purchased 2,500 shares of Eversharp common stock at a price of $6 per share. The market price of the Company’s common stock on June 2, 7 and 30, 1944, was $23.25, $23.75 and $28 per share, respectively.
On its original return for the year 1944, Eversharp did not claim a deduction in respect of the 2,500 shares sold to Straus on June 30, 1944.
During the fiscal years ended the last day of February, 1940 to 1946, when Straus was president and a director of Eversharp, its net sales increased fifteen-fold, viz., from $2,001,674 to $29,-080,850, and its earnings jumped from a loss of $345,913 in 1941 to a net profit before taxes of $5,602,445 and a net profit after taxes of $1,805,445 in 1946.
In 1942, 1943 and 1944, Straus’s salary from Eversharp and the Eversharp, Inc. War Products Division, a wholly owned subsidiary, was $50,833.31, $78,-996 and $78,996, respectively.
Upon its review of all the competent evidence of record, the Tax Court reached the following conclusion:
“The plan as a whole and the surrounding circumstances indicate an intent to give the officers and employees a proprietary interest in the business rather than to compensate them * * *.
******
“We conclude, therefore, that the transaction was in fact what its form indicates, the purchase of employer’s stock by petitioner under an option granted him by the employer not to compensate for services rendered or to be rendered, but to give him a proprietary interest in the business.”
Accordingly, the Tax Court entered its decision that there was no deficiency in Straus’s income tax for the calendar year 1944.
The Commissioner here contends that the Tax Court erred in holding that the gain of $55,000, allegedly realized by taxpayer when he was permitted by his employer to purchase 2,500 shares of the Company’s stock at a price of $6 per share at a time when such stock had a market value of $28 per share.
He says:
“Commissioner [of Internal Revenue] v. Smith, 324 U.S. 177 [65 S.Ct. 591, 89 L.Ed. 830], authoritatively settles the proposition that an employee realizes taxable gain when he acquires property from his employer at a price less than market value pursuant to the exercise of an option which is granted as compensation for services.”
We can perceive a marked distinction between the Smith case and the case at bar. Here the Tax Court after its consideration of the facts and circumstances shown by the evidence in the record concluded that the plan as a whole and the surrounding circumstances, indicate an intent to give the officers and employees a proprietary interest in the business rather than to compensate them.
On the other hand, the Tax Court found in the Smith case that the option was given as compensation for services. The Supreme Court stated that it could discover no basis for disturbing the findings of the Tax Court and therefore concluded that the Tax Court had correctly applied the law to the facts there found.
In the case at bar, we can find no basis for disturbing the findings and conclusions of the Tax Court, and are bound thereby. Cf. Locomotive Engineers, etc., Ass’n v. Laurent, 7 Cir., 172 F.2d 889-894.
The Commissioner includes in his brief Section 29.22(a)-1 of Regulations 111 promulgated under the Internal Revenue Code.
This section, as amended, after the Supreme Court decision in Commissioner of Internal Revenue v. Smith, 324 U. S. 177, 65 S.Ct. 591, 89 L.Ed. 830, is not properly applicable to the case under review, as a resume of its history will demonstrate.
After the decision of the Supreme Court in the Smith case, Treasury Regulations 111, Section 29.22 (a)-l were amended to provide:
“If property is transferred by an employer to an employee for an amount less than its fair market value, regardless of whether the transfer is in the form of a sale or exchange, the difference between the amount paid for the property and the amount of its fair market value, is in the nature of compensation and shall be included in the gross income of the employee.” T.D. 5507, April 12, 1946, 1946-1 C.B. 18.
However, the amended regulations, by their very terms, were not to apply to options granted prior to February 26, 1945, the date of decision in the Smith case. The language of the regulation is as follows:
«* * * in the case of property transferred by an employer to an employee pursuant to the exercise of an option granted to the employee before February 26, 1945, the provisions of these regulations prior to the amendment made by this Treasury decision shall apply.” T.D. 5507, 1946-1 C.B. 18; A. Rosenberg, 20 T.C.-, No. 2, April 6, 1953.
In the instant case the option was granted and exercised before February 26, 1945, hence the only regulations applicable here are those in effect prior to the current regulations.
Before the amendment of April 12, 1946, the pertinent part of Regulation 111 Sec. 29.22(a)-l provided that:
“If property is transferred by a corporation to * * * an employee, for an amount substantially less than its fair market value regardless of whether the transfer is in the guise of a sale or exchange, such * * * employee shall include in gross income the difference between the amount paid for the property and the amount of its fair market value to the extent that such difference is in the nature of (1) compensation for services rendered or to be rendered.”
After careful consideration of the facts and circumstances of the case at bar, the Tax Court concluded that the plan as a whole and the surrounding circumstances indicate an intent to give executive and supervisory employees a proprietary interest in the business, and was not designed or intended as a plan for increasing compensation.
Since these findings and conclusions of the Tax Court are supported by substantial evidence and are not clearly erroneous, we are bound thereby.
The decision of the Tax Court is
Affirmed
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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songer_r_bus
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1
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "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.
The CHEDD-ANGIER PRODUCTION CO., INC., Plaintiff, Appellee, v. OMNI PUBLICATIONS INTERNATIONAL, LTD., Defendant, Appellant. The CHEDD-ANGIER PRODUCTION CO., INC., Plaintiff, Appellant, v. OMNI PUBLICATIONS INTERNATIONAL, LTD., Defendant, Appellee.
Nos. 84-1129, 1142.
United States Court of Appeals, First Circuit.
Argued Jan. 7, 1985.
Decided March 15, 1985.
Norman Roy Grutman, New York City, with whom Bernard J. Bonn, III, Dennis C. Hart, Jewel H. Bjork, Adrienne DeLuca, Testa, Hurwitz & Thibeault, Boston, Mass., and Grutman, Miller, Greenspoon, Hendler & Levin, New York City, were on brief for Omni Publications International, Ltd.
Craig E. Stewart, Boston, Mass., with whom Laurie S. Gill and Palmer & Dodge, Boston, Mass., were on brief for The Chedd-Angier Production Co., Inc.
Before COFFIN and ALDRICH, Circuit Judges, and GIGNOUX, Senior District Judge.
Of the District of Maine, sitting by designation.
COFFIN, Circuit Judge.
In a contract dispute between The Chedd-Angier Production Co., Inc. (Chedd-Angier) and Omni Publications International, Ltd. (Omni) over the production of a scientific television series, the jury awarded Chedd-Angier full contract damages, apparently concluding that Omni breached some agreement between the parties. Omni challenged the jury verdict on several grounds and now appeals from the denial of its motion for judgment notwithstanding the verdict or for new trial. In a companion case, Chedd-Angier appeals from the district court decision that Omni did not engage in unfair or deceptive acts or practices in violation of Mass.Gen.Laws Ann. ch. 93A, § 11. After a careful review of the record, we affirm the judgments below on all counts.
Omni, a New York corporation, is the publisher of OMNI magazine, a monthly publication devoted to developments in science, technology and medicine. Robert Guccione, the chairman of Omni, publishes the OMNI magazine and several sexually explicit adult magazines, including Penthouse. Chedd-Angier is a Massachusetts based film and television production company founded in 1980 by John Angier, its president, and Graham Chedd, its treasurer. The parties came together in the summer of 1980 when Guccione and Kathryn Keeton, the president of Omni, decided to create a science and technology television program based on OMNI magazine, and Chedd-Angier was looking for corporate underwriters to finance a science television magazine series. After a number of meetings involving Guccione, Keeton, Chedd, Angier and David Rothkopf, an employee of Tilley, Marlieb and Alan, Inc., Omni’s advertising agency, the parties entered into a two-page letter agreement on December 8, 1980 pursuant to which Chedd-Angier would produce a one-hour pilot television program “about science, technology and related subject areas”, with the intention of producing “a successful and long-running TV series.” The letter agreement further provided that:
“If the pilot is completed and successful and seems to be the basis for a commercially viable series, then you [Omni] and we [Chedd-Angier] intend to continue forward to make the series, on terms that will be agreed at that time. If, on the other hand, the pilot is not completed or we cannot agree on terms, or the pilot is not a success, or if you do not wish to carry on working with us, or if we do not wish to carry on working with you, or if you or we see at any time the likelihood of a successful pilot is not worth additional expenditures, you will pay all costs incurred to date and then both you and we will be free to develop and produce independently any science programs that we are interested in, including those similar to the pilot.”
The agreement provided for the production of a pilot using on-camera reporters, retaining for Guccione the “sole right of approval over the final cut of the program”, “final selection” of the major elements of the program and even approval rights over “day to day operations.” It also provided that any additional expenses had to be approved by Guccione or Keeton in advance.
In the weeks following the December 8 agreement Chedd-Angier began active work on production of the pilot and the series. At the same time, Omni began to market the proposed series in order to sell it to network or affiliate stations. Omni extensively advertised the series proclaiming it to be a joint effort from both the publishers of OMNI magazine and the Chedd-Angier production company, “the most acclaimed science producers in America.”
In January, 1981, Omni requested that Chedd-Angier produce a promotional tape (Promo) for the program, and authorized payment of $45,000 for its production. In February, with a rough version of the Promo, Keeton, Rothkopf, Chedd and Angier met with representatives of the American Broadcasting Company (ABC) who expressed possible interest in purchasing the series. On March 5, Rothkopf telephoned Chedd-Angier and in words or substance said that ABC had agreed to air an Omni series — “It’s a go on the series.”
Guccione, not yet having approved of the promotional tape, met with Keeton, Roth-kopf, Chedd and Angier on March 13 to view it for the first time. Apparently Guc-cione objected to aspects of the tape, including the use of reporters. Nevertheless, according to Angier, Keeton said that Guccione approved of the use of the reporters.
On March 17 Chedd-Angier sent a letter addressed to Guccione and Keeton outlining the proposed terms for production of the series which incorporated many of the terms and conditions agreed upon in the December 8 contract, including a producers’ fee for Chedd-Angier of 15%. In addition, Chedd-Angier specifically requested approval to hire the two reporters who had appeared in the promotional tape. Neither Guccione nor Keeton ever signed the agreement, although on April 2 in a telephone conversation, Rothkopf accepted the proposed budget figures with some modification.
On April 4, 1981 Chedd and Angier met with Guccione and Keeton in New York to review creative aspects of the series, including a television set design which Guc-cione had commissioned from an Italian movie set designer. Chedd and Angier ob-jeeted to the set because it was incompatible with the use of the reporter format. To Guccione’s suggestion that perhaps Chedd-Angier “should consider not using reporters”, Chedd and Angier replied that Guc-cione had previously agreed to the use of reporters, that it was too late to make the changes he was suggesting, that it would be too expensive, and that it was inconsistent with the contract and difficult if not impossible to do.
A memorandum written by Rothkopf to Keeton subsequent to this meeting suggests that as of April 9 Omni had decided not to use reporters, to terminate Chedd-Angier and to form their own production company. The memorandum indicated that Omni was exploring the viability of in-house production and was concerned about the effect of the proposed “change” in production company on ABC’s decision regarding the series. Although Chedd-Angier was told on April 16 that Guccione was upset because they had objected to the dropping of the reporters, it was not until April 22 that Rothkopf, instructed by Guc-cione and Keeton, telephoned Chedd and Angier and informed them of Omni’s decisions. He also asked them at that time for an accounting of the $212,000 that had been advanced by Omni.
One week later, on April 29, Chedd wrote a letter to Discover magazine, a science magazine published by Time, Inc., in which he stated that Chedd-Angier’s only signed document with Omni “explicitly gives either party the right to terminate the arrangement at any time, and either party then has the right to do anything in the science field it wishes.”
In its Memorandum and Order dated January 5, 1984 denying Omni’s motion for judgment notwithstanding the verdict or for a new trial, the district court summarized the parties’ positions:
“The entire course of conduct between the parties was marked by numerous meetings and communications. At trial, both defendant Omni and plaintiff Chedd-Angier introduced into evidence numerous exhibits in support of their respective positions. In substance, Chedd-Angier claims that Rothkopf, acting as Omni’s agent, entered into an agreement with Chedd-Angier on March 5, 1981, for the production of the Omni series. Chedd-Angier claims that the entire course of dealing between the parties evidenced their intent to jointly produce the Omni series, and that Omni made oral expressions of agreement on terms for the production of the series on a number of occasions subsequent to March 5, 1981. Until notified of their termination, Chedd-Angier had been continually at work on the series. Omni claims, however, that the December 8, 1980 agreement, by its terms, controlled the rights and obligations of the parties to the end of their relationship and that, as a matter of law, there are no facts to support the allegation of a superseding oral contract for the series. Omni claims that the plaintiff’s work for the series was performed at the assumed risk that it would not be asked to produce the series.”
The case came to trial in October 1983. Six of the eight counts brought by Chedd-Angier were submitted to the jury. Count 1 alleged the breach of the December 8 agreement in which Chedd-Angier sought unreimbursed production costs and a production fee for its work on the promotional tape. Chedd-Angier claimed that the December 8 agreement was intended to cover production costs of the Promo as well as the pilot. On Count 2, Chedd-Angier sought contract damages of some $275,000 for breach of an oral contract to produce the television series. The same damages were sought and were charged by the court for: breach of the duty of good faith and fair dealing (Count 3); promissory estoppel (Count 5); and misrepresentation (Count 7). On an implied-in-fact contract claim (Count 4), the measure of damages was limited to the reasonable value of services rendered, or quantum meruit. The jury found in favor of Chedd-Angier on a general verdict and awarded $223,175.00 in damages. Finally, Chedd-Angier sought multiple damages predicated on unfair or deceptive acts and practices under Mass.Gen.Laws Ann. ch. 93A, § 11 (Count 6) and Omni counterclaimed to obtain an accounting for the money it advanced to Chedd-Angier under the December 8 agreement. These claims were tried to the district court, and judgment was entered against Chedd-Angier on the 93A claim, and against Omni on the counterclaim.
Omni raises principally four issues on appeal. First, Omni challenges the sufficiency of the evidence to support the jury’s findings that there was an agreement— whether oral, written, implied-in-fact, or based on promissory estoppel — and that Omni breached that agreement, its duty of good faith under that agreement or knowingly misrepresented its intentions. Second, Omni claims that the district court committed prejudicial error in charging the jury that it must award full contract damages for the series should it find for Chedd-Angier on the counts of promissory estop-pel, breach of duty of good faith or misrepresentation. Third, Omni contends that the trial court’s failure to order an accounting for the $212,000 advanced to Chedd-Angier entitles Omni to a new trial. And finally Omni claims that the court’s refusal to ask voir dire questions concerning Guccione’s link to Penthouse magazine allowed jury bias to infect the fairness of the trial. Omni claims that on the basis of the trial errors and the sufficiency of the evidence claims, it is entitled to a judgment notwithstanding the verdict or a new trial.
Appellate review of a jury verdict is extremely restricted and should be granted cautiously and sparingly. To do otherwise deprives the party of a decision by jury. We are compelled, therefore, even in a close case, to uphold the verdict unless the facts and inferences, when viewed in the light most favorable to the party for whom the jury held, point so strongly and overwhelmingly in favor of the movant that a reasonable jury could not have arrived at this conclusion. Rios v. Empresas Lineas Maritimas Argentinas, 575 F.2d 986, 989-90 (1st Cir.1978). Simply put, where it is possible to disagree about the outcome, the matter must go to the jury. Dumas v. MacLean, 404 F.2d 1062, 1064 (1st Cir. 1968).
Omni has failed to persuade us that the facts of this case so conclusively point to a verdict in its favor that fair-minded people could not disagree about the outcome. The evidence was as conflicting as it was voluminous and as such this case is not one, as the district court noted, “where there is but one reasonable conclusion as to the proper judgment.” We accordingly uphold the district court judgment denying Omni’s motion for judgment notwithstanding the verdict.
In the alternative, Omni contends that the district court abused its discretion in failing to grant its motion for a new trial. A new trial should be granted only where the court is convinced that the jury verdict was a “seriously erroneous result” and where denial of the motion will result in a “clear miscarriage of justice.” Coffran v. Hitchcock Clinic, Inc., 683 F.2d 5, 6 (1st Cir.1982). As the district court noted:
“New trials may be granted where the court determines that: the verdict is against the weight of the evidence; material issues were improperly submitted to or withdrawn from the jury; substantial errors were made in the admission or rejection of evidence or instructions to the jury; the jury acted with passion or prejudice or engaged in other misconduct; or the trial was otherwise unfair to the movant. 6A Moore’s Federal Practice H 59.08. A party is not entitled to a new trial merely because the evidence introduced at trial would have supported an opposite verdict. Peterman v. Indian Motorcycle Co., 216 F.2d 289, 292-93 (1st Cir.1954); Dumas v. MacLean, supra. Nor should the judge set aside the verdict merely because he would have reached a contrary result. Peterman,-supra, at 292-93.”
1. Sufficiency of the Evidence
Omni argues on appeal that the district court erred in submitting the oral contract count to the jury because there was no proof that a binding contractual relationship existed between the parties. Omni contends that the parties had only reached the stage of “imperfect negotiation” with final terms still to be worked out. “Agreements to agree”, they argue, are unenforceable. Blair v. Cifrino, 355 Mass. 706, 247 N.E.2d 373 (1969); Marine Midland Bank v. Herriott, 10 Mass.App. 743, 412 N.E.2d 908 (1980); Tull v. Mister Donut Development Corp., 7 Mass.App. 626, 389 N.E.2d 447 (1979). As proof that the parties were still in the “negotiation” stage in March and April, Omni points to documents which suggest that a written agreement was not only contemplated by the parties but was a required condition of contract formation. Omni claims that where the parties intend to draft legal documents, absent those documents no contractual relationship can exist. Blair v. Cifrino, 355 Mass. at 709, 247 N.E.2d at 375; see Wasserman v. Roach, 336 Mass. 564, 567-568, 146 N.E.2d 909 (1958).
Omni’s analysis is correct as far as it goes. The problem, however, is that under Massachusetts law even where a writing was contemplated by the parties, if sufficient evidence exists to show that an oral contract has been entered into, the parties’ intention to memorialize the contract in writing does not defeat the existence of an oral contract. Kilham v. O’Connell, 315 Mass. 721, 724-44, 54 N.E.2d 181 (1944); see Merrill v. Kirkland Construction Co., Inc., 365 Mass. 110, 114, 310 N.E.2d 106 (1974); Alphen v. Bryant’s Market, Inc., 329 Mass. 540, 543, 109 N.E.2d 152 (1952); Nigro v. Conti, 319 Mass. 480, 482, 66 N.E.2d 353 (1946). The Restatement of Contracts 2d, § 27 is in accord with this view:
“Manifestations of assent that are in themselves sufficient to conclude a contract will not be prevented from so operating by the fact that the parties also manifest an intention to prepare and adopt a written memorial thereof; but the circumstances may show that the agreements are preliminary negotiations.”
The question then becomes one of fact, whether the jury had sufficient evidence before it to decide that the parties, intending to create a written contract, orally agreed upon the essential terms of the contract prior to memorializing the contract in writing. To answer this question, we again refer to the district court’s January 5, 1984 Memorandum and Order.
The court specifically and supportably found that Chedd-Angier presented sufficient evidence of Rothkopf’s apparent authority to act on behalf of Omni. Chedd-Angier was therefore justified in its reliance on Rothkopf’s representations when he said “It’s a go on the series” and when he later approved Angier’s proposed budget. The court concluded that enough facts were before the jury for it to find that “the parties had an oral contract; all essential elements of the contract were agreed upon; and Omni never exercised its claimed creative control over the use of the reporter format but, instead, terminated Chedd-An-gier in breach of the oral contract.” While we are convinced that this was a close case, and one that equally could have been decided the other way, after extensive review of the record, we are persuaded that the district court did not abuse its discretion in denying Omni’s motion for a new trial on the oral contract claim.
We are unpersuaded by Omni’s remaining legal arguments on the oral contract issue. In particular, we reject Omni’s contention that a directed verdict is mandated in this case on the basis of Grayson v. Pride Golf Tee Company, 433 F.2d 572 (1st Cir.1970). In Grayson, the plaintiff sued for breach of an oral contract of lifetime employment. In that ease, the district court directed the verdict for the defendant because undisputed documents in evidence were inconsistent with the plaintiff's theory of an oral contract. The documents showed that essential terms of the alleged oral agreement were still unresolved. Id. at 575. The documents in evidence in this case, however, can be read to support not just the defendant’s theory, as in Grayson, but also the theory of the plaintiff’s case. The jury had evidence before it that the essential terms of the contract had been agreed upon, if not by March 5 after Roth-kopf’s telephone call to Chedd-Angier, or by March 13 when Keeton allegedly approved of the reporters, then certainly by April 2 when Rothkopf accepted Chedd-An-gier’s proposed budget for the series. Grayson, therefore, poses no bar to the submission of the contract counts to the jury.
Similarly, we reject Omni’s contention that Chedd’s statement in his April 29 letter to Discover magazine (Discover letter) is an admission by Chedd-Angier which is inconsistent with its theory that a superseding oral contract bound the parties. In that letter, written one week after Omni terminated Chedd-Angier, Chedd stated that no written contract binds Chedd-Angier and Omni. Chedd’s failure to mention the superseding oral contract in the Discover letter is not fatal to Chedd-Angier’s claim, however, because the letter was written after the alleged breach of the oral agreement. Accordingly, we do not believe that the existence of this letter requires reversal under Grayson.
Moreover, review of the record reveals that there was sufficient evidence to support submission to the jury on each of the remaining counts. The court below carefully summarized the evidence in support of each count submitted to the jury concluding that:
“[i]n view of the relatively simple issue that was at the core of the plaintiff’s case, that the parties had actually or impliedly agreed that the plaintiff would produce the series, the evidence would amply support the award of damages based on the production of the series under several of the plaintiff’s theories.”
We believe that in its Memorandum and Order the district court competently evaluated the record and we adopt its discussion of the evidence as our own.
II. Errors in the Jury Instructions
In the district court’s charge to the jury, it instructed that the damages for promissory estoppel and breach of duty of good faith were the full measure of contract damages, an amount arguably equivalent to the fifteen percent producer’s fee. Omni contends that under both theories only reliance damages are available, and therefore, in light of the general verdict, the erroneous damage charges were prejudicial and a new trial is warranted. Although we agree with Omni that an'error in the jury instructions would be prejudicial, we are not persuaded that there was an error in this case.
To determine the proper measure of damages in this diversity action we apply Massachusetts law, Segovia Development Corp. v. Constructora Maza, Inc., 628 F.2d 724, 726 n. 4 (1st Cir.1980), and in doing so, we are guided by the trial court’s interpretation of that law, Garcia v. Frie-secke, 597 F.2d 284, 295 (1st Cir.1979). Massachusetts has recently endorsed the theory of promissory estoppel, although it has chosen not to adopt the doctrine by name:
“When a promise is enforceable in whole or in part by virtue of reliance, it is a ‘contract,’ and it is enforceable pursuant to a ‘traditional contract theory’ antedating the modern doctrine of consideration. See Sullivan v. O’Connor, 363 Mass. 579, 588 n. 6, 296 N.E.2d 183 (1973); Restatement (Second) of Contracts § 90, Comment a (Tent. Drafts Nos. 1-7,1973). We do not use the expression ‘promissory estoppel,’ since it tends to confusion rather than clarity.” Loranger Construction Corporation v. E.F. Hauser- man Company, 376 Mass. 757, 760, 384 N.E.2d 176, 179 (1978).
Under § 90 of the Restatement (Second) of Contracts, adopted in its tentative form by the Massachusetts court in Loranger, damages available under promissory estoppel range from full contract damages to reliance or restitution damages:
“d. Partial enforcement. A promise binding under this section is a contract, and full-scale enforcement by normal remedies is often appropriate. But the same factors which bear on whether any relief should be granted also bear on the character and extent of the remedy. In particular, relief may sometimes be limited to restitution or to damages or specific relief measured.by the extent of the promisee’s reliance rather than by the terms of the promise.” Restatement (Second) Contracts § 90, comment d.
The district court, therefore, was clearly authorized under Massachusetts law to charge contract damages for promissory estoppel; whether to charge full contract damages, or something less, is a matter of discretion delegated to the district court. We cannot say that the district court abused its discretion in this instance.
As to Omni’s remaining claims of error in the jury instructions, we find them either to have been waived (measure of damages for misrepresentation), subsequently cured by the court (charge to the jury that the breach of duty of good faith requires a finding that no contract exists), or without merit (measure of damages for breach of duty of good faith).
III. Whether an Accounting was Warranted
Omni sought an accounting for the $212,000 it advanced to Chedd-Angier under the December 8 agreement. The trial court rejected Omni’s counterclaim concluding that the parties were connected only in an arms-length business relationship and not in a fiduciary relationship. Under Massachusetts law, an equitable accounting is available only if there exists a fiduciary or trust relationship between the parties, Ball v. Harrison, 314 Mass. 390, 50 N.E.2d 31 (1943), and we see nothing in the record to indicate that the commercial relationship between Omni and Chedd-An-gier was transformed into one which was fiduciary in nature. See Broomfield v. Ko-sow, 349 Mass. 749, 212 N.E.2d 556 (1965). Accordingly, we agree with the district court that there was not that “degree of overbearance or... inequity of positions between the parties” or “sufficient evidence of misappropriation of any funds” to require an accounting in this instance.
IV. Errors in Voir Dire
Omni argues that the jury was biased as a result of its purported knowledge of Guc-cione’s association with sexually explicit magazines and films. Omni claims it is entitled to a new trial because the court refused to allow voir dire questions concerning juror attitudes on these issues and refused to conduct an evidentiary hearing after the verdict was returned to investigate the scope of the juror’s knowledge of Guccione’s activities.
In a pre-trial motion in limine, Omni sought to exclude any mention of Penthouse magazine from the trial, or in the alternative, Omni requested individual voir dire to probe the private opinions of jury members regarding sexually explicit magazines and films. Having granted Omni’s first request, the court declined to individually voir dire the jurors. We find no error in this decision.
The district court was successful in achieving Omni’s alleged objective — disassociating the present contract dispute from Guccione’s more controversial activity. In fact, we think that the court may have chosen the best means of achieving Omni’s goal; eliciting jury bias through the extensive questioning proposed by Omni might have magnified the importance of Guc-cione’s connection with the sexually explicit subject matter and so have been counterproductive.
Moreover, we believe that the trial court acted within its discretion in finding that the alleged evidence of juror bias, elicited through an “objective” telephone poll conducted by employees of Omni’s counsel, did not warrant a post-trial evidentiary hearing to determine the extent of the jurors’ knowledge regarding Guccione’s other activities.
V. Mass. Gen.Laws Ann. ch. 93A
Mass.Gen.Laws Ann. ch. 93A, § 11, provides that “[a]ny person who engages in the conduct of any trade or commerce and who suffers any loss of money... as a result of the use or employment by another person who engages in any trade or commerce of an... unfair or deceptive act or practice... may... bring an action for damages.” Chedd-Angier alleges that Omni’s action in terminating Chedd-Angier as producer of the series was an unfair and deceptive business practice in violation of Chapter 93A. Chedd-Angier bases its action on a claim of common law misrepresentation, Levings v. Forbes & Wallace, Inc., 8 Mass.App. 498, 504, 396 N.E.2d 149, 154 (1979), and on the claim that Omni’s actions in general were “unscrupulous”. Omni contends that its practices were neither unfair nor deceptive, but moreover that it is exempt from liability under Chapter 93A. The district court entered judgment in favor of Omni:
“I am persuaded from the facts here that both parties had a legitimate dispute over the composition of this agreement. I do not disagree, and I accept the jury’s verdict as to the contract itself. But I do not find any act of deception in Omni’s response to the negotiations that went on between the parties. I think the matter can be fairly described as a falling out over a legitimate dispute as to control, perhaps, and a clash of artistic egos; but not such conduct or rascality as would disturb me. So I find and rule that on that count that there was no fraud, there was no unfair, deceptive acts and practices, and judgment on Count 6 will enter in favor of the defendant.”
The record makes it abundantly clear that Omni’s behavior in its relations with Chedd-Angier does not rise to the level of 93A liability. Chedd-Angier claims that Omni made numerous fraudulent misrepresentations and in reliance on those representations, Chedd-Angier expended time and money to its detriment. Specifically Chedd-Angier refers to the apparent inconsistency between the promotional material distributed by Omni, which referred to Chedd-Angier as the producer of a reporter format science series, and statements made by Omni at trial to the effect that a final decision had not been made prior to April 4 as to who would produce the series and whether a reporter format would be utilized. Additionally, Chedd-Angier alleges that Omni unfairly took advantage of Chedd-Angier’s reputation and expertise in order to sell the series, intending all the while to produce the series in-house. Omni’s delay in terminating Chedd-Angier, they claim, attests to Omni’s fraudulent intentions.
Chedd-Angier’s recitation of the events, however, omits certain crucial information. For example, the December 8 letter agreement expressly provided for extensive marketing of the proposed series. The parties agreed at that time to provide the advertising agents “with the promotional tapes and materials that they need, using as far as possible elements that we have developed for the pilot itself.” At the time of the December 8 agreement the parties envisioned production of a reporter format series, but had made, even under Chedd-Angier’s theory, no binding agreement for the series. Accordingly, the promotional materials, although advertising the collaboration of Omni and Chedd-Angier as a fait accom-pli, necessarily reflected only the parties’ tentative agreement. Claims by Chedd-An-gier that it was misled by the pronouncements in the literature are, therefore, hard to comprehend.
This case “falls within the ordinary rule that false statements of opinion, of conditions to exist in the future, or of matters promissory in nature” are not actionable in a claim for misrepresentation. Yerid v. Mason, 341 Mass. 527, 530, 170 N.E.2d 718 (1960), cited in Saxon Theatre Corp. of Boston v. Sage, 347 Mass. 662, 667, 200 N.E.2d 241 (1964); Continental Financial Services Co. v. The First National Boston Corp., No. 82-1505-T, slip op. (D.Mass. August 30, 1984). Chedd-Angier’s reliance on Cellucci v. Sun Oil Co., 2 Mass.App. 722, 320 N.E.2d 919 (1974), aff'd., 368 Mass. 811, 331 N.E.2d 813 (1975) is misplaced. Although the basis of the misrepresentation in Cellucci was a future event, the signing of the contract, it was in the exclusive control of the defendant. Here settlement of the contract terms involved negotiation between the parties on a number of issues which were unresolved, even according to Chedd-Angier, through mid-March. Reliance on the promotional materials, at least prior to that point, was unreasonable. Saxon Theatre Corp. of Boston v. Sage, 347 Mass. at 667, 200 N.E.2d 241. After the April 4 meeting, in which the use of reporters was again brought into question, Chedd-Angier was put on notice that any reliance on the promotional materials was unjustified.
There is, in addition, little evidence in the record to support Chedd-Angier’s contention that the statements in the promotional literature were knowingly false when made. Chedd-Angier points us to no direct evidence that Omni intended, for example, never to use a reporter format. Similarly, the record does not support the claim that Omni, by its words or actions, tried to induce Chedd-Angier to act in reliance on the representations in the promotional materials. Guccione, after all, never relinquished creative control over the series production. Nor was he silent about his criticisms of the promotional tape.
Perhaps the most damaging evidence against Omni was its thirteen day delay in informing Chedd-Angier of its decision not to use the reporter format and to form its own production company. We believe, however, that this delay reflects lack of complete candor between the parties, rather than a violation of Chapter 93A. Therefore, even if Mass.Gen.Laws ch. 93A did apply to Omni, we affirm the district court’s judgment on this issue.
Finally, Chedd-Angier argues that the district court’s ruling on the 93A claim is irreconcilable with the court’s earlier decision to submit the common law misrepresentation claim to the jury. Assuming without deciding that 93A requires no more proof of deception than common law misrepresentation, we find nothing inconsistent in ruling that the evidence is sufficient to go to the jury on misrepresentation, while at the same time it fails to persuade the court of 93A liability.
We find all remaining claims to be without merit. The judgment of the district court is
Affirmed.
. This figure is equivalent to fifteen percent of the production costs for the series, and is referred to by
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_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.
SAMSUNG ELECTRONICS CO., LTD., et al.
v.
APPLE INC.
No. 15-777.
Supreme Court of the United States
Argued Oct. 11, 2016.
Decided Dec. 6, 2016.
Kathleen M. Sullivan, New York, NY, for Petitioners.
Seth P. Waxman, Washington, DC, for Respondent.
Brian H. Fletcher for the United States as amicus curiae, by special leave of the Court.
Michael T. Zeller, B. Dylan Proctor, Quinn Emanuel Urquhart & Sullivan, LLP, Los Angeles, CA, Victoria F. Maroulis, Brett J. Arnold, Quinn Emanuel Urquhart & Sullivan, LLP, Redwood Shores, CA, Kathleen M. Sullivan, William B. Adams, David M. Cooper, Cleland B. Welton II, Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, for Petitioners.
Harold J. McElhinny, Rachel Krevans, Erik Olson, Nathan B. Sabri, Christopher L. Robinson, Morrison & Foerster LLP, San Francisco, CA, William F. Lee, Mark C. Fleming, Lauren B. Fletcher, Eric F. Fletcher, Sarah R. Frazier, Steven J. Horn, Wilmer Cutler Pickering, Hale and Dorr LLP, Boston, MA, Seth P. Waxman, Wilmer Cutler Pickering, Hale and Dorr LLP, Washington, DC, for Respondent.
Justice SOTOMAYOR delivered the opinion of the Court.
Section 289 of the Patent Act provides a damages remedy specific to design patent infringement. A person who manufactures or sells "any article of manufacture to which [a patented] design or colorable imitation has been applied shall be liable to the owner to the extent of his total profit." 35 U.S.C. § 289. In the case of a design for a single-component product, such as a dinner plate, the product is the "article of manufacture" to which the design has been applied. In the case of a design for a multicomponent product, such as a kitchen oven, identifying the "article of manufacture" to which the design has been applied is a more difficult task.
This case involves the infringement of designs for smartphones. The United States Court of Appeals for the Federal Circuit identified the entire smartphone as the only permissible "article of manufacture" for the purpose of calculating § 289 damages because consumers could not separately purchase components of the smartphones. The question before us is whether that reading is consistent with § 289. We hold that it is not.
I
A
The federal patent laws have long permitted those who invent designs for manufactured articles to patent their designs. See Patent Act of 1842, § 3, 5 Stat. 543-544. Patent protection is available for a "new, original and ornamental design for an article of manufacture." 35 U.S.C. § 171(a). A patentable design "gives a peculiar or distinctive appearance to the manufacture, or article to which it may be applied, or to which it gives form." Gorham Co. v. White, 14 Wall. 511, 525, 20 L.Ed. 731 (1872). This Court has explained that a design patent is infringed "if, in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same." Id., at 528.
In 1885, this Court limited the damages available for design patent infringement. The statute in effect at the time allowed a holder of a design patent to recover "the actual damages sustained" from infringement. Rev. Stat. § 4919. In Dobson v. Hartford Carpet Co., 114 U.S. 439, 5 S.Ct. 945, 29 L.Ed. 177 (1885), the lower courts had awarded the holders of design patents on carpets damages in the amount of "the entire profit to the [patent holders], per yard, in the manufacture and sale of carpets of the patented designs, and not merely the value which the designs contributed to the carpets." Id., at 443, 5 S.Ct. 945. This Court reversed the damages award and construed the statute to require proof that the profits were "due to" the design rather than other aspects of the carpets. Id., at 444, 5 S.Ct. 945 ; see also Dobson v. Dornan, 118 U.S. 10, 17, 6 S.Ct. 946, 30 L.Ed. 63 (1886) ("The plaintiff must show what profits or damages are attributable to the use of the infringing design").
In 1887, in response to the Dobson cases, Congress enacted a specific damages remedy for design patent infringement. See S. Rep. No. 206, 49th Cong., 1st Sess., 1-2 (1886); H.R. Rep. No. 1966, 49th Cong., 1st Sess., 1-2 (1886). The new provision made it unlawful to manufacture or sell an article of manufacture to which a patented design or a colorable imitation thereof had been applied. An act to amend the law relating to patents, trademarks, and copyright, § 1, 24 Stat. 387. It went on to make a design patent infringer "liable in the amount of" $250 or "the total profit made by him from the manufacture or sale ... of the article or articles to which the design, or colorable imitation thereof, has been applied." Ibid.
The Patent Act of 1952 codified this provision in § 289. 66 Stat. 813. That codified language now reads, in relevant part:
"Whoever during the term of a patent for a design, without license of the owner, (1) applies the patented design, or any colorable imitation thereof, to any article of manufacture for the purpose of sale, or (2) sells or exposes for sale any article of manufacture to which such design or colorable imitation has been applied shall be liable to the owner to the extent of his total profit, but not less than $250...." 35 U.S.C. § 289.
B
Apple Inc. released its first-generation iPhone in 2007. The iPhone is a smartphone, a "cell phone with a broad range of other functions based on advanced computing capability, large storage capacity, and Internet connectivity." Riley v. California, 573 U.S. ----, ----, 134 S.Ct. 2473, 2480, 189 L.Ed.2d 430 (2014). Apple secured many design patents in connection with the release. Among those patents were the D618,677 patent, covering a black rectangular front face with rounded corners, the D593,087 patent, covering a rectangular front face with rounded corners and a raised rim, and the D604,305 patent, covering a grid of 16 colorful icons on a black screen. App. 530-578.
Samsung Electronics Co., Samsung Electronics America, Inc., and Samsung Telecommunications America, LLC (Samsung), also manufacture smartphones. After Apple released its iPhone, Samsung released a series of smartphones that resembled the iPhone. Id., at 357-358.
Apple sued Samsung in 2011, alleging, as relevant here, that various Samsung smartphones infringed Apple's D593,087, D618,677, and D604,305 design patents. A jury found that several Samsung smartphones did infringe those patents. See id., at 273-276. All told, Apple was awarded $399 million in damages for Samsung's design patent infringement, the entire profit Samsung made from its sales of the infringing smartphones. See id., at 277-280, 348-350.
The Federal Circuit affirmed the design patent infringement damages award. In doing so, it rejected Samsung's argument "that the profits awarded should have been limited to the infringing 'article of manufacture' "-for example, the screen or case of the smartphone-"not the entire infringing product"-the smartphone. 786 F.3d 983, 1002 (2015). It reasoned that "limit[ing] the damages" award was not required because the "innards of Samsung's smartphones were not sold separately from their shells as distinct articles of manufacture to ordinary purchasers." Ibid.
We granted certiorari, 577 U.S. ---- (2016), and now reverse and remand.
II
Section 289 allows a patent holder to recover the total profit an infringer makes from the infringement. It does so by first prohibiting the unlicensed "appli[cation]" of a "patented design, or any colorable imitation thereof, to any article of manufacture for the purpose of sale" or the unlicensed sale or exposure to sale of "any article of manufacture to which [a patented] design or colorable imitation has been applied." 35 U.S.C. § 289. It then makes a person who violates that prohibition "liable to the owner to the extent of his total profit, but not less than $250." Ibid. "Total," of course, means all. See American Heritage Dictionary 1836 (5th ed. 2011) ("[t]he whole amount of something; the entirety"). The "total profit" for which § 289 makes an infringer liable is thus all of the profit made from the prohibited conduct, that is, from the manufacture or sale of the "article of manufacture to which [the patented] design or colorable imitation has been applied."
Arriving at a damages award under § 289 thus involves two steps. First, identify the "article of manufacture" to which the infringed design has been applied. Second, calculate the infringer's total profit made on that article of manufacture.
This case requires us to address a threshold matter: the scope of the term "article of manufacture." The only question we resolve today is whether, in the case of a multicomponent product, the relevant "article of manufacture" must always be the end product sold to the consumer or whether it can also be a component of that product. Under the former interpretation, a patent holder will always be entitled to the infringer's total profit from the end product. Under the latter interpretation, a patent holder will sometimes be entitled to the infringer's total profit from a component of the end product.
A
The text resolves this case. The term "article of manufacture," as used in § 289, encompasses both a product sold to a consumer and a component of that product.
"Article of manufacture" has a broad meaning. An "article" is just "a particular thing." J. Stormonth, A Dictionary of the English Language 53 (1885) (Stormonth); see also American Heritage Dictionary, at 101 ("[a]n individual thing or element of a class; a particular object or item"). And "manufacture" means "the conversion of raw materials by the hand, or by machinery, into articles suitable for the use of man" and "the articles so made." Stormonth 589; see also American Heritage Dictionary, at 1070 ("[t]he act, craft, or process of manufacturing products, especially on a large scale" or "[a] product that is manufactured"). An article of manufacture, then, is simply a thing made by hand or machine.
So understood, the term "article of manufacture" is broad enough to encompass both a product sold to a consumer as well as a component of that product. A component of a product, no less than the product itself, is a thing made by hand or machine. That a component may be integrated into a larger product, in other words, does not put it outside the category of articles of manufacture.
This reading of article of manufacture in § 289 is consistent with 35 U.S.C. § 171(a), which makes "new, original and ornamental design[s] for an article of manufacture" eligible for design patent protection. The Patent Office and the courts have understood § 171 to permit a design patent for a design extending to only a component of a multicomponent product. See, e.g., Ex parte Adams, 84 Off. Gaz. Pat. Office 311 (1898) ("The several articles of manufacture of peculiar shape which when combined produce a machine or structure having movable parts may each separately be patented as a design ..."); Application of Zahn, 617 F.2d 261, 268 (C.C.P.A.1980) ( "Section 171 authorizes patents on ornamental designs for articles of manufacture. While the design must be embodied in some articles, the statute is not limited to designs for complete articles, or 'discrete' articles, and certainly not to articles separately sold ...").
This reading is also consistent with 35 U.S.C. § 101, which makes "any new and useful ... manufacture ... or any new and useful improvement thereof" eligible for utility patent protection. Cf. 8 D. Chisum, Patents § 23.03[2], pp. 23-12 to 23-13 (2014) (noting that "article of manufacture" in § 171 includes "what would be considered a 'manufacture' within the meaning of Section 101 "). "[T]his Court has read the term 'manufacture' in § 101... to mean 'the production of articles for use from raw or prepared materials by giving to these materials new forms, qualities, properties, or combinations, whether by hand-labor or by machinery.' " Diamond v. Chakrabarty, 447 U.S. 303, 308, 100 S.Ct. 2204, 65 L.Ed.2d 144 (1980) (quoting American Fruit Growers, Inc. v. Brogdex Co., 283 U.S. 1, 11, 51 S.Ct. 328, 75 L.Ed. 801 (1931) ). The broad term includes "the parts of a machine considered separately from the machine itself." 1 W. Robinson, The Law of Patents for Useful Inventions § 183, p. 270 (1890).
B
The Federal Circuit's narrower reading of "article of manufacture" cannot be squared with the text of § 289. The Federal Circuit found that components of the infringing smartphones could not be the relevant article of manufacture because consumers could not purchase those components separately from the smartphones. See 786 F.3d, at 1002 (declining to limit a § 289 award to a component of the smartphone because "[t]he innards of Samsung's smartphones were not sold separately from their shells as distinct articles of manufacture to ordinary purchasers"); see also Nordock, Inc. v. Systems Inc., 803 F.3d 1344, 1355 (C.A.Fed.2015) (declining to limit a § 289 award to a design for a " 'lip and hinge plate' " because it was "welded together" with a leveler and "there was no evidence" it was sold "separate[ly] from the leveler as a complete unit"). But, for the reasons given above, the term "article of manufacture" is broad enough to embrace both a product sold to a consumer and a component of that product, whether sold separately or not. Thus, reading "article of manufacture" in § 289 to cover only an end product sold to a consumer gives too narrow a meaning to the phrase.
The parties ask us to go further and resolve whether, for each of the design patents at issue here, the relevant article of manufacture is the smartphone, or a particular smartphone component. Doing so would require us to set out a test for identifying the relevant article of manufacture at the first step of the § 289 damages inquiry and to parse the record to apply that test in this case. The United States as amicus curiae suggested a test, see Brief for United States as Amicus Curiae 27-29, but Samsung and Apple did not brief the issue. We decline to lay out a test for the first step of the § 289 damages inquiry in the absence of adequate briefing by the parties. Doing so is not necessary to resolve the question presented in this case, and the Federal Circuit may address any remaining issues on remand.
III
The judgment of the United States Court of Appeals for the Federal Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Samsung raised a host of challenges on appeal related to other claims in the litigation between Apple and Samsung. The Federal Circuit affirmed in part-with respect to the design patent infringement finding, the validity of two utility patent claims, and the design and utility patent infringement damages awards-and reversed and remanded in part-with respect to trade dress dilution. Only the design patent infringement award is at issue here.
In its petition for certiorari and in its briefing, Samsung challenged the decision below on a second ground. It argued that 35 U.S.C. § 289 contains a causation requirement, which limits a § 289 damages award to the total profit the infringer made because of the infringement. Samsung abandoned this theory at argument, and so we do not address it. See Tr. of Oral Arg. 6.
As originally enacted, the provision protected "any new and original design for a manufacture." § 3, 5 Stat. 544. The provision listed examples, including a design "worked into or worked on, or printed or painted or cast or otherwise fixed on, any article of manufacture" and a "shape or configuration of any article of manufacture." Ibid. A streamlined version enacted in 1902 protected "any new, original, and ornamental design for an article of manufacture." Ch. 783, 32 Stat. 193. The Patent Act of 1952 retained that language. See § 171, 66 Stat. 813.
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
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songer_r_bus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Appellant, v. FIRST NATIONAL BANK AND TRUST COMPANY OF AUGUSTA, as Executor under Will of J. Adolphus Setze, Appellee.
No. 18894.
United States Court of Appeals Fifth Circuit.
Dec. 13, 1961.
Robert N. Anderson, L. W. Post, Attorneys, Department of Justice, Washington, D. C., Donald H. Fraser, U. S. Atty., Hinesville, Ga., William T. Morton, Asst. U. S. Atty., Augusta, Ga., Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, Atty., Dept, of Justice, Washington, D. C., William C. Calhoun, U. S. Atty., Augusta, Ga., C. Guy Tadlock, Robert W. Keman, Elmer J. Kelsey, Attys., Dept, of Justice, Washington, D. C., for appellant.
J. J. Willingham, J. B. Willingham, Augusta, Ga., Hull, Willingham, Towill & Norman, Augusta, Ga., of counsel, for appellee.
C. Baxter Jones, Jones, Sparks, Benton & Cork, Macon, Ga., in behalf of persons interested in result of case but not parties thereto.
Before BROWN, GEWIN, and BELL, Circuit Judges.
BELL, Circuit Judge.
This appeal involves estate taxes. It is from the judgment of the District Court for the taxpayer. It involves the narrow question of whether the allowance of a year’s support to a widow under the law of Georgia in effect at the time of the death of decedent constitutes a terminable interest and thus does not qualify for the marital deduction under § 2056 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 2056.
The decedent died testate on May 26, 1955, a resident of Augusta, Georgia, leaving as survivors, among others, a wife. His will was duly probated and appellee bank qualified as executor. Under the term of the will decedent, after making specific bequests, left three-fourths of the residue of his estate in trust with the income to his wife for life with remainder to others. The will provided that the provisions made for the wife should not deprive her of the privilege of applying for a year’s support for herself, and that any such allowance for her support should be charged to the principal of the estate.
On August 8, 1955, the widow made application under the statute of Georgia to the Court of Ordinary of Richmond County, Georgia, for a year’s support which was duly set apart to her by order of the court dated September 6, 1955. It consisted of certain bonds valued at |59,604.29 in the aggregate.
The executor, taxpayer and appellee herein, filed a Federal Estate Tax Return and included this sum as a part of the marital deduction. On disallowance, the taxpayer paid the resulting deficiency and filed a claim for refund, contending that the award qualified for the marital deduction. The claim was disallowed by the Commissioner of Internal Revenue. Thereafter, this suit was timely filed by the taxpayer and the District Court held that the award qualified for the marital deduction. 191 F.Supp. 446 (1961).
Section 2056(a) allows a marital deduction, subject to limitations not here applicable, in an amount equal to the value of any interest in property passing from the decedent to the surviving spouse in computing the federal estate tax, but the deduction is not permitted in cases where the widow receives an interest which will terminate or fail, and also pass to another person in the event the interest of the widow terminates or fails. § 2056(b).
The deduction here involved concerns the award of an interest in Georgia property under the Georgia statute, and hence it must be so examined to determine whether it will terminate or fail. It is undisputed that the interest of the widow under a year’s support award in Georgia, once it is made, would not terminate or fail. The Georgia statute provides:
“Where property is set apart as a year’s support for the benefit of the widow alone, she shall thereafter own the same in fee, without restriction as to use, incumbrance, or disposition”. Georgia Laws 1937, p. 861, § 113-1023, Georgia Code, 1933.
And in Hiers v. Striplin, 1954, 210 Ga. 293, 79 S.E.2d 539, the Supreme Court of Georgia held that where property is set apart as a year’s support for the benefit of the widow alone, as was the case here, the fee vests in her, and she can make a testamentary disposition of the unconsumed portion thereof.
Regarding the nature of the statutory right to a year’s support as distinguished from the award, the court in Farris v. Battle, 1887, 80 Ga. 187, 7 S.E. 262, held it to be a branch of the statute of distribution, and that persons entitled to the right are just as much and as absolutely entitled thereto as they are entitled in the case of intestacy to a distributive share in the residue of the estate of a deceased person. And in Swain v. Stewart, 1896, 98 Ga. 366, 25 S.E. 831, the court said that the right to a year’s support vests immediately and absolutely upon the death of the husband in the widow, and her marriage would not deprive her of the right. Also, the right survived her death and could be claimed by her legal representative. Smith v. Sanders, 1951, 208 Ga. 405, 67 S.E.2d 229.
But the right is subject to certain limitations. It may be waived expressly or impliedly. Federal Land Bank of Columbia v. Henson, 1928, 166 Ga. 857, 144 S.E. 728; or lost by an election to take an inconsistent benefit, Ehrlich v. Silverstein, 1904, 121 Ga. 54, 48 S.E. 703, and it was held to be subject to a twenty year statute of limitation in Nixon v. Nixon, 1943, 196 Ga. 148, 149, 26 S.E.2d 711; and in May v. Braddock, 1955, 92 Ga.App. 302, 88 S.E.2d 539, although arising prior to the 1955 act barring the right by death or remarriage of the widow, an award was held to be void where the widow died pending the award, but no doubt her legal representative could have claimed it. The statute was amended in 1953 to provide a seven year statute of limitation. Ga.Laws 1953, Jan. Feb. Sess., p. 453.
At this juncture in the Georgia law, the government tacitly admits, the award of a year’s support would qualify as a part of the marital deduction because the right was indefeasibly vested. But, says the government, the right is no longer vested because the statute was amended in 1955 to provide a bar to the right if the widow dies or remarries prior to its being set aside, or should she die twelve months after the date of the death of decedent and prior to the filing of an application for the award. Ga.Laws 1955, p. 626.
This amendment is applicable here but we hold, as did the District Court, that it is merely adjective as were the existing limitations on the right, and not substantive so as to convert the right, admitted by the government to be theretofore indefeasibly vested at the time of the death of the husband, to one that is defeasible.
We go further, however, in an effort to squarely meet the issue raised by the government, which rests on the assumption that the amendatory bar or limitation is substantive. Simply stated, it is that the requirement that the widow be in life and widowhood is such an event or contingency within the meaning of § 2056(b) as will render the award terminable, even when it has been made and has under the statute vested indefeasibly.
To reach this position it is necessary to consider the interest in property passing under § 2056(a) as being the statutory right of the widow to the award at the time of the death of the husband, rather than as being the interest in property itself, once it arises, which is upon the award by the court.
Certain confines have already been marked out by the courts relative to the meaning of § 2056 and its predecessor, § 812(e) of the Internal Revenue Code of 1939 as amended, as they relate to a widow’s support allowance. It was first contended that such an allowance was not an interest in property passing from decedent as defined in these sections. Estate of Rensenhouse, 1956, 27 T.C. 107. On appeal, 6 Cir., 1958, 252 F.2d 566, this position was abandoned by the government, and was not reasserted on remand to the tax court. 31 T.C. 818 (1960). In addition, the government acceded to the position that such an allowance is an interest passing from the estate of decedent within the meaning of the statute in Estate of Edward A. Cunha, 1957, 30 T.C. 812, affirmed 9 Cir., 1960, 279 F.2d 292, cert den. 1961, 364 U.S. 942, 81 S.Ct. 460, 5 L.Ed.2d 373; Molner v. United States, D.C.N.D.Ill.1959, 175 F.Supp. 271; Estate of Margaret R. Gale, 1960, 35 T.C. 215; Estate of Michael G. Rudnick, 1961, 36 T.C. No. 105; Estate of William Lamar Hailey, 1961, 36 T.C. No. 8; and most recently in United States v. Quivey, 8 Cir., 1961, 292 F.2d 252. Cf. Reynolds’ Estate v. United States, D.C.E.D.Mich.1960, 189 F.Supp. 548; Rev. Rul. 83, 1953-1 Cum.Bull. 395; Rev.Rul. 56-26, 1956-1 Cum.Bull. 447.
Further, the rule has been established that the question of the terminability of the interest or award is to be decided upon the law of the state where the interest arose, using the rule of examination of the interest at the time that interest arose, treating that time as being at the time of the court award.
In King v. Wiseman, D.C.W.D.Okl. 1956, 147 F.Supp. 156, a widow’s allowance under the Oklahoma law was held not to terminate or abate upon the death or remarriage of the widow and did not constitute a terminable interest; in Quivey, supra, the examination was not made on the basis of the state law that the right was personal to the widow and did not survive her, but on the proposition that the interest or installment award for one year, once made, was terminable because it would fail in the event the widow died or the estate was settled in less than one year; in Estate of Margaret R. Gale, the award to the husband under the Maine law was vested in fee and was therefore non-terminable; and in Estate of Michael G. Rudnick, the widow’s allowance under the Massachusetts law would not terminate or fail and thus it qualified as a part of the marital deduction.
As the Tax Court said in Gale r
“If the allowance, once made, did fail under state law upon the happening or failure to happen of an event or contingency, it constitutes a terminable interest and is non-deductible. If the reverse is true, it is deductible.”
Also in Gale and Rudnick, the Tax Court held the award not to be terminable and to qualify as a part of the marital deduction under § 2056(a) in spite of the fact that under the laws of the states involved, Maine and Massachusetts, the right was personal to the widow and would not survive her death, rendering it necessary for the award to be final before her death. The government took the express position in Rudnick that the interest was terminable because the right did not survive the widow. The Tax Court said that the award to the widow which became final before her death was thereby vested, and would become a part of her estate when she died, and the fact that the widow might die before the award became final would not make the award, once made, a terminable interest within the meaning of § 2056(b).
^ . ,, , „ . , „ l C°uU i f •tPPe?S l°r the Eighth Circuit, while deciding for the government thereby reversing the District Court, 176 F Supp. 433, stated that all reported estate tax decisions on the question have expressly or implicit^ recognized that only where a state statute does not leave a widows allowance subject to termination can the interest m the decedent’s estate qualify as a marital deduction. Georgia falls into this category, and meets this test as the Nebraska statute did not.
In United States v. Trader's National Bank of Kansas, 8 Cir., 1957, 248 F.2d 667, the commuted cash value of dower and homestead interest, terminable interests under the Missouri law, was awarded to the widow on her election after the death of decedent under a Missouri statute and the court held this to be a non-terminable interest qualifying as a part of the marital deduction. In United States v. Crosby, 5 Cir., 1958, 257 F.2d 515 a widow under the Alabama statute waived her dower interest in land so that it might be sold and took an award as she had a statutory right to do m lieu of dower out of the proceeds of the sale, thereby converting her right from a termmable to a non-termmable interest which qualified as a part of marital de1 n‘
But the government, while recognizing that it is necessary to convert the statutory right into an award before it becomes an interest in property passing within the meaning of § 2056(a), would carve out an exception that it is a terminable interest where the state statute requires the widow to be in life and in widowhood to exercise the right,
This will not do. The right is inchoate, It is incapable of transfer or assignment, not subject to lien, or susceptible of valuation. The right holder has no control over the amount of the award under it. it must be claimed while the widow is in Hfe and widowhood, and within the statutory period or it is barred, and it may be lost by taking an inconsistent benefit or by waiver. Once claimed however, and reduced to certainty by the order of the court in the form of an award, it becomeg ^ subject of examination in the ligM of state law to determine if it wiH terminate or faü within the meaning of § 2Q56(b) .f -t .fl daimed ag a deduction under § 2056(a). By thig standard we hoM ^ Georgia award here ^ alify ag a marital deduetion. It vested inde. feasijjiy
This accords with the intent of Congress to extend to married taxpayers in common law states by way of the marital deduction, more properly an exclusi0ip the advantages of residence in community property jurisdictions, but only when so much of the interest allowed as a marital deduction as is not used up will! survive as an asset in the estate of the widow, there to be taxed in due course, and ihe statute is to be liberally canstrued to this end. The purpose of the terminable interest rule under § 2056(b) js i0 prevent the deduction of an interest which will not survive. United States v. Crosby, supra. Here the interest survives
The application of the terminable interegt ru]e t(J ^ maintenance an0wance for a widow out of the egtate of a de_ cedent ig entirely dependent) ag wag gaid in the concurring opinion in Quivey, on ^ vagarieg of gtate law. The advantage given to residents of some states, such as Georgia, over those of other states such as California and Nebraska is inherent in the statute. The complexities of the marital deduction are compounded by the fact that every state has statutes of varying forms designed to protect the decedent’s family from economic hardship during the administration of estates. See Berlin and Testa, Deductibility of Widow’s Allowance under the Marital Deduction, 36 N.Y.U.L.Rev. 1188 (1961). Congress is aware of this lack of uniformity in the application of the marital deduction, itself created to promote uniformity, and the condition must continue until that body acts, it being their prerogative to make and amend laws. The judgment is
Affirmed.
. In pertinent part: § 2056(a)
“Allowance of marital deduction. — For purposes of the tax imposed by section 2001, tbe value of tbe taxable estate shall, except as limited by subsections (b), (c), and (d), be determined by deducting from the value of the gross estate an amount equal to the value of any interest in property which passes or has passed from the decedent to his surviving spouse, but only to the extent that such interest is included in determining the value of the gross estate.
“(b) Limitation in the case of life estate or other terminable interest.—
“(1) General rule. — Where, on the lapse of time, on the occurrence of an event or contingency, or on the failure of an event or contingency to occur, an interest passing to the surviving spouse will terminate or fail, no deduction shall be allowed under this section with respect to such interest—
“(A) if an interest in such property passes or has passed (for less than an adequate and full consideration in money or money’s worth) from the decedent to any person other than such surviving spouse (or the estate of such spouse); and
“(B) if by reason of such passing such person (or his heirs or assigns) may possess or enjoy any part of such property after such termination or failure of \he interest so passing to the surviving spouse; * *
. Ga.Code Section 113-1002 (1955 Supp.): “Among the necessary expenses of administration, and to be preferred before all other debts, except as otherwise specially provided is the provision for the support of the family, to be ascertained as follows: Upon the death of any person testate or intestate, leaving an estate solvent or insolvent, and leaving a widow, or a widow and minor child or children, or minor child or children only, it shall be the duty of the ordinary, on the application of the widow, or the guardian of the child or children, or any other person in their behalf, on notice to the representative of the estate (if there be one, and if none, without notice), to appoint five discreet appraisers; and it shall be the duty of such appraisers, or a majority of them, to set apart and assign to such widow and children, or children only, either in property or money, a sufficiency from the estate for their support and maintenance for the space of 12 months from the date of administration, in case there is administration on the estate, to be estimated according to the circumstances and standing of the family previous to the death of the testator or intestate and keeping in view also the solvency of the estate.”
. This legislation was sponsored by the Georgia Bar Association on recommendation of its committee on Real Property and Titles, which committee considered the resulting provisions of the Act to be at variance, and finally succeeded in clarifying the meaning by having it restated as a condition precedent to provide that all applications for year’s support shall be made during life and -widowhood. The purpose was to obtain a bar or limitation on the right. Ga.Laws 1958, p. 665-666; Ga.Laws 1959, pp. 138-140; Reports, 72nd Sess.Ga.Bar Assoc., pp. 211-212; 73rd Sess., pp. 189, 193, 194; 76th Sess., p. 186. The 1958 Act also changed the statute of limitation from seven to three years.
. That the widow may not assert her right to the award, or that it may be barred by the statute of limitation, or that it may be expressly or impliedly waived. or lost by an inconsistent election are not asserted as being such events or contingencies within the meaning of the statute.
. House Rep. No. 818, 86th Congress, 1st Sess., p. 2; House Rep. No. 1337, 83rd Congress, 2nd Sess., p. 91-2, and Senate Report No. 1622, 83rd Congress, 2nd Sess., p. 125.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_const2
|
108
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if fewer than two constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the second greatest number of headnotes. In case of a tie, code the second mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
UNITED STATES of America, Appellee, v. Sherman Ray MEIROVITZ, Appellant.
No. 90-5017MN.
United States Court of Appeals, Eighth Circuit.
Submitted Aug. 15, 1990.
Decided Nov. 21, 1990.
Mark W. Peterson, Minneapolis, Minn., for appellant.
Thorwald Anderson, Asst. U.S. Atty., Minneapolis, Minn., for appellee.
Before JOHN R. GIBSON, Circuit Judge, HEANEY, Senior Circuit Judge, and MAGILL, Circuit Judge.
MAGILL, Circuit Judge.
Sherman Ray Meirovitz was convicted of conspiracy to distribute cocaine and possession of cocaine with the intent to distribute and was sentenced to life imprisonment without parole. Meirovitz appeals his conviction, claiming (1) that his Miranda waiver, confession and consent to search his home were involuntary; (2) that the district court erred in admitting weapons and ammunition seized from his home; and (3) that the government failed to prove predisposition to possess cocaine with the intent to distribute. Meirovitz also claims that his sentence is constitutionally disproportionate to his convictions and therefore violates the eighth amendment guarantee against cruel and unusual punishment. We affirm both Meirovitz’ convictions and his sentence.
I.
Meirovitz was arrested on November 30, 1988, after he tried to purchase two kilograms of cocaine from undercover agents. His arrest was the result of an investigation into narcotics trafficking involving persons in Colorado, New York and Minnesota. In April 1988 the agents followed Mu-nir Ahmed, the central figure in a narcotics trafficking organization, to the Embassy Suites Hotel in Bloomington, Minnesota. They saw Jack Sears and another suspect board Ahmed’s flight from Denver to Minnesota; all three men stayed at the Embassy Suites Hotel. The agents did not see these men participating in drug activity on this occasion.
After continued surveillance of Sears in Denver, the police seized Sears’ car, believing it had been used for a drug transaction. Sears agreed to cooperate in the investigation. Sears told the investigators that he was introduced to Meirovitz in December 1986, and that five months afterwards, Meirovitz asked Sears if he could put together a deal for one pound of cocaine. Sears sold the cocaine to Meirovitz for approximately $17,000. Sears also told the investigators that he sold Meirovitz one to four pounds of cocaine approximately every two months.
Sears agreed to call Meirovitz and attempt to set up a deal. Sears told Meiro-vitz that he had a new source who could provide cocaine for $18,500 per kilogram. Meirovitz said he was interested in two kilograms and that he would like to make partial payment in methamphetamine. Sears agreed and the deal was set up for the end of November 1988.
After Sears and the investigators arrived in Minnesota and wired the hotel room to record the conversations, Sears called Meir-ovitz to complete the transaction. Meiro-vitz arrived with $35,700 in cash, one ounce of methamphetamine (worth $1,300), a scale, calculators, plastic baggies, a mirror, and chemicals to test the quality of the cocaine. Meirovitz was given the two kilograms of cocaine and one of the undercover agents began counting the money. Meiro-vitz began explaining in detail the source of the methamphetamine and said that he expected a larger quantity later. As Meiro-vitz tested the cocaine’s quality, the other agents entered the room and arrested him.
Meirovitz was advised of his rights and agreed to be interviewed by the agents. Meirovitz confirmed Sears’ account of their initial meeting and subsequent drug deals. He also told the agents of a lab in California that was being set up to produce twenty pounds of methamphetamine. Meirovitz then consented to a search of his home and car. The search of his home produced $9,500 in $100 bills, seven handguns in a laundry chute, a small-caliber handgun and ammunition, papers characterized by the government as “drug notes,” drug-cutting agents (lactose, mannitol and nicotinamide), an electronic digital scale, drug-related books, numerous plastic baggies, and a hollow battery that contained twelve grams of methamphetamine.
At trial, Meirovitz testified that he had not been involved in the use or distribution of drugs since his release from prison in December 1984. Meirovitz said that Sears asked him to distribute drugs, but that he refused. Meirovitz claimed that Sears kept on pressuring him, threatening violence and exposure of Meirovitz’ involvement with a prostitute. Meirovitz maintained that he agreed to go along with Sears’ deal out of fear. Meirovitz claimed that Sears told him to bring the methamphetamine and to act like he knew what he was doing.
Meirovitz testified that he did not recall receiving any Miranda warnings. Furthermore, he claimed that the agents’ emphasis on cooperation led him to say what he thought they wanted to hear. He also testified that he signed the Miranda waiver forms and consent to search forms without being given an opportunity to read them.
Meirovitz also testified that the drug paraphernalia and drug-related items in his house were either vestiges of his drug-dealing past or property of other persons. Meirovitz presented witnesses who testified that they knew Sears coerced Meirovitz to get involved in drugs.
After a three-day jury trial, Meirovitz was convicted on both counts of conspiracy to distribute and possession with the intent to distribute. The United States Probation Officer calculated his offense level at thirty-eight and his criminal history category at VI due to his status of career offender. Therefore, Meirovitz’ appropriate sentencing range was thirty years to life. Judge Devitt sentenced Meirovitz to the maximum sentence because of his substantial criminal record which included a history of drug-dealing and the shooting death of his mother-in-law.
II.
A.
We review the district court’s decision to deny the defendant’s motion to suppress under a clearly erroneous standard. United States v. Williams, 917 F.2d 1088, 1090 (8th Cir.1990). Therefore, we must affirm the district court unless its decision is “unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, in light of the entire record, we are left with a firm and definite conviction that a mistake has been made.” United States v. Jorgensen, 871 F.2d 725, 728 (8th Cir.1989).
Meirovitz first argues that his waiver of his Miranda rights and his consent to search were involuntarily obtained. The arresting officers testified that Meirovitz was given a Miranda warning and that he signed a Miranda waiver form and consent to search forms. Meirovitz testified that he did not recall having his rights read to him and that he felt pressured to sign the Miranda waiver form and the consent to search forms. The officers’ testimony and the signed forms are substantial evidence that support the district court’s denial of the motion to suppress. Since there was no erroneous interpretation of the applicable law and since the totality of the record leaves us with no firm and definite conviction of mistake, we affirm the district court’s denial of the motion to suppress Meirovitz’ Miranda waiver and consent to search.
Meirovitz also argues that his post-arrest confession was involuntarily obtained. The appropriate test for determining the voluntariness of a confession is “whether, in light of the totality of the circumstances, pressures exerted upon the suspect have overborne his will.” Jorgen-sen, 871 F.2d at 729. The two factors that must be considered in applying the “overborne will” doctrine are “the conduct of the law enforcement officials and the capacity of the suspect to resist pressure to confess.” Id. (citing Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986)). The officers’ conduct in this case did not create an unbearably coercive atmosphere. At first, Meirovitz was thrown to the floor and handcuffed, but the handcuffs were then removed and he was seated at a table with one hand handcuffed to a chair. With Meirovitz in this position, the agents conducted their post-arrest interview. Meirovitz claims he was coerced by threats of a long prison sentence if he failed to cooperate and by the promise of a lenient sentence if he did cooperate. The agents admit that they told Meirovitz that the seriousness of the charges and his criminal history probably meant a tough sentence, but they categorically denied promising Meirovitz anything more than informing the district attorney of his cooperation. Meirovitz failed to show that he was especially susceptible to police pressure. In fact, his criminal history may have made him less likely to buckle under the pressure exerted by the police. The arresting officers’ testimony provided substantial evidence supporting the voluntariness of the confession and in light of the totality of the circumstances, we determine that the pressures exerted upon Meirovitz by the arresting officers did not overbear Meirovitz’ will. Furthermore, we are not left with a firm and definite conviction that a mistake has been made, and affirm the denial of the motion to suppress the confession.
B.
Meirovitz next claims' that the guns and ammunition found in his home should not have been admitted into evidence because their prejudicial effect substantially outweighed their probative value. Firearms are generally considered tools of the drug dealer’s trade and can be admitted as evidence of intent to distribute. See United States v. Brett, 872 F.2d 1365, 1370 (8th Cir.1989). Meirovitz claims that the seven handguns found in his laundry chute were merely collateral for an outstanding debt. It is significant to note that the guns were found with plenty of ammunition and that some of the “collateral” was even loaded. Given the clear relevance to the charge, and the unlikelihood that Meirovitz would have legitimate reasons for having that much firepower in his home, the trial court properly admitted the evidence.
C.
Meirovitz also claims that the government did not present sufficient evidence to prove beyond a reasonable doubt that he was predisposed to possess cocaine and that therefore, the jury’s conclusion that he was not entrapped is invalid. This court must affirm convictions that are challenged on sufficiency of evidence grounds if, viewing the evidence in the light most favorable to the government, there is substantial evidence to support the jury’s verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942). The evidence need not rule out all reasonable hypotheses other than guilt; rather, “it must simply be sufficient to convince a jury beyond a reasonable doubt that the defendant is guilty.” United States v. Paul, 810 F.2d 774, 775 (8th Cir.1987). Given this standard, there is no question that the government presented sufficient evidence to support its assertion that Meirovitz was predisposed to possess drugs. The evidence included: Sears’ description of Meirovitz’ recent drug ventures, corroborated by Meirovitz' own post-arrest admissions; the ammunition, drugs, and drug paraphernalia found in Meirovitz’ home; and Meirovitz’ history of drug involvement. Therefore, we reject Meirovitz’ insufficiency claim.
D.
Meirovitz also challenges his sentence of life imprisonment without parole as disproportionate to the offenses for which he was convicted and therefore a violation of the eighth amendment. In general, a sentence is not subject to appellate review unless it “exceeds statutory limits, violates constitutional or procedural requirements, or reflects that the district court failed to exercise its discretion or manifestly or grossly abused its discretion.” United States v. Marin-Cifuentes, 866 F.2d 988, 996 (8th Cir.1989); see also United States v. Mendoza, 876 F.2d 639, 640 (8th Cir.1989). There is no question that Meirovitz’ sentence was within the appropriate Guideline range and therefore within statutory limits. Additionally, Meir-ovitz does not claim that his sentence was defective procedurally, or that the district court abused its discretion in sentencing him to the upper limit of the appropriate Guideline range. Therefore we need only address the constitutional proportionality of the sentence.
Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), is the seminal case on eighth amendment challenges to non-capital sentences. In Solem, a defendant was given a life sentence without parole for writing a $100 “no account” check. A state recidivist statute required the sentencing judge to treat the defendant’s felony as a class one felony because of the defendant’s six prior convictions. The state court explained its sentence of life imprisonment without parole by saying, “I think you certainly earned this sentence and certainly [sic] proven that you’re an habitual criminal and the record would indicate that you’re beyond rehabilitation and that the only prudent thing to do is to lock you up for the rest of your natural life.” Solem, 463 U.S. at 282-83, 103 S.Ct. at 3005-06. In reversing the state court sentence for violating the eighth amendment, the Supreme Court enumerated three objective factors to be considered when reviewing the constitutionality of a sentence. First, and most importantly, the reviewing court should “look to the gravity of the offense and the harshness of the penalty.” Solem, 463 U.S. at 290-91, 103 S.Ct. at 3009-10. Second, the Court stated that “it may be helpful to compare the sentences imposed on other criminals in the same jurisdiction. If more serious crimes are subject to the same penalty, or to less serious penalties, that is some indication that the punishment at issue may be excessive.” Id. at 291, 103 S.Ct. at 3010 (emphasis added). Finally, “courts may find it useful to compare the sentences imposed for commission of the same crime in other jurisdictions.” Id. at 291-92, 103 S.Ct. at 3010 (emphasis added). The Court qualified its analysis by noting, “[i]n view of the substantial deference that must be accorded legislatures and sentencing courts, a reviewing court rarely will be required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate.” Id. at 290 n. 16, 103 S.Ct. at 3010 n. 16; see also Tyler v. Gunter, 819 F.2d 869, 871 (8th Cir.1987) (appellate court substantially defers “to a legislature’s broad authority to determine types and limits of punishment and to trial courts who have the discretion to sentence offenders”). However, because Meirovitz was sentenced to life without parole, we will engage in the rare review of the constitutionality of a district court sentence.
Solem first directs the reviewing court to consider the gravity of the offense and the harshness of the penalty. Solem, 463 U.S. at 290-91, 103 S.Ct. at 3009-10. Consideration of this factor includes examining the “harm caused or threatened to the victim or society and the culpability of the offender.” Id. at 292, 103 S.Ct. at 3010. Meirovitz was convicted of possession of narcotics with the intent to distribute and of conspiracy to possess narcotics with the intent to distribute. These offenses are at the root of some of the gravest problems facing our country. The “fruit” of the drug plague is everywhere; it fills our jails, our courts, our streets, and our nurseries. As the Fifth Circuit commented when it upheld a drug dealer’s sentence of life without parole:
Except in rare cases, the murderer’s red hand falls on one victim only, however grim the blow; but the foul hand of the drug dealer blights life after life and, like the vampire of fable, creates others in its owner’s evil image — others who create others still, across our land and down our generations, sparing not even the unborn.
Terrebonne v. Butler, 848 F.2d 500, 504 (5th Cir.1988) (en banc). Just as there is no question as to the serious nature of Meiro-vitz’ crime, there is no question that his sentence is harsh. He faces the second most stringent penalty in America, a sentence we do not affirm lightly. However, proportionality requires that we view the sentence in light of the crime. Accordingly, given that drug dealers themselves sentence many individuals to a lifetime of addiction and dependency, a life sentence for repeatedly dealing drugs cannot be considered disproportionately cruel and unusual. Therefore the first factor of the Solem analysis does not require reversal of Meirovitz’ sentence.
The next step in the Solem proportionality analysis is a comparison of Meirovitz’ sentence with sentences imposed on other criminals in the same jurisdiction. There are two aspects to this portion of the analysis: first, whether more serious crimes receive the same penalty; and second, whether similarly-situated criminals receive similar sentences. Determining whether more serious crimes receive the same penalty requires a closer look at the structure of the Sentencing Guidelines. Even though the Guidelines were designed to reduce indeterminacy in sentencing and remove inter- and intra-circuit disparities, the Guidelines have been accused of aggravating the problem they were created to solve. See Mistretta v. United States, 488 U.S. 361, 413-15, 109 S.Ct. 647, 676, 102 L.Ed.2d 714 (1989) (Scalia, J., dissenting); United States v. O’Meara, 895 F.2d 1216, 1221-23 (8th Cir.1990) (Bright, J., dissenting). In determining whether the Guidelines permit the same sentence for drastically varying offenses, we must look not only at the end result, but also at the process set up by the Guidelines for arriving at the applicable sentencing range. The Guidelines take a crime and disassemble it into quanta of criminality via governmentally-designed algorithms. These quanta are then added up to produce the criminal offense level. The Guidelines use the criminal offense level in conjunction with a classification of the criminal’s history to arrive at a sentencing range. At the moment the sentencing range is determined, all facts associated with the criminal and the crime have been reduced to two discrete values. In theory, this structure should increase determinacy in sentencing and decrease disparities. However, problems arise when the sum of the parts of a criminal venture is either greater or less than the apparent whole. It is these inherent and unavoidable problems that courts must explore when engaging in proportionality analysis. Therefore, even though Meirovitz received a penalty harsher than other career offenders with significantly more violent backgrounds, this alone does not mean that his sentence is disproportionate. Comparing sentences out of context can lead to illusory disparities that disappear upon closer examination. For example, Meirovitz cites United States v. Williams, 892 F.2d 296 (3d Cir.1989), as a situation in which a person with a significantly more violent background (prior convictions included rape, assaulting a man with a baseball bat and burglary), and who was also a career offender, received a sentence in the lower end of the range. Id. at 303, 305. What Meirovitz fails to note is that the defendant in Williams was moderately retarded, had severe learning disabilities, and on the night of the crime was intoxicated. Therefore, Meirovitz’ sentence was not disproportionate when compared with vastly dissimilar crimes.
Meirovitz’ sentence is not disproportionate when compared to other defendants similarly situated in the Eighth Circuit. In United States v. McKines, 917 F.2d 1077 (8th Cir.1990), this court upheld a sentence of life imprisonment without parole for a third conviction for drug trafficking. Id. at 1080-1081. In that case, the defendant’s criminal history did not include anything similar to Meirovitz’ involvement in the shooting death of his mother-in-law. In United States v. Milburn, 836 F.2d 419 (8th Cir.1988), the defendant’s life sentence was not considered excessive in view of his position as an organizer in a drug trafficking operation. Id. at 421. Additionally, this court has repeatedly upheld harsh penalties for drug-related offenses. E.g., United States v. Marin-Cifuentes, 866 F.2d 988 (8th Cir.1989) (defendant received sixty years’ imprisonment and $4 million fine for two counts of aiding and abetting distribution of cocaine, importing cocaine, and conspiring to distribute cocaine); Tyler v. Gunter, 819 F.2d 869 (8th Cir.1987) (defendant sentenced to five years’ imprisonment for possession of one-eighth gram of hashish). Therefore, although Meirovitz’ sentence may be harsh, it is not disproportionate when compared to sentences imposed on similarly situated persons within the Eighth Circuit. Consequently, the second factor of the Solem analysis does not require reversal.
Finally, Meirovitz’ sentence is not disproportionate when compared to sentences imposed for the same crime in other jurisdictions. In United States v. Martorano, 866 F.2d 62 (3d Cir.1989), the Third Circuit upheld a drug dealer’s sentence of life without parole, noting that the defendant’s sentence was commensurate with sentences imposed on other drug dealers. Id. at 70 n. 6. In Young v. Miller, 883 F.2d 1276 (6th Cir.1989), the Sixth Circuit held that a Michigan court’s imposition of a life sentence without parole for possession of 650 grams of heroin with intent to distribute was not cruel and unusual even though the defendant was a first-time offender. Id. at 1282. Furthermore, the Young court also noted that increasingly harsher sentences are being imposed upon defendants in drug cases. Id. at 1284-85. Therefore, because Meiro-vitz’ sentence is consistent with the sentence ranges for drug crimes in other jurisdictions, the third factor of the Solem analysis does not require reversal.
Considering the three factors enumerated in Solem leads us to conclude that Meir-ovitz’ life sentence without parole, although harsh, does not violate the proportionality requirement of the eighth amendment. The additional issues raised by Meirovitz in his pro se brief are either without merit or not properly before this court because they should be raised in a subsequent habeas petition.
III.
For the foregoing reasons, Sherman Ray Meirovitz’ convictions and sentence are affirmed.
. The Honorable Edward J. Devitt, Senior United States District Judge for the District of Minnesota.
. The defendant had been convicted of grand larceny, obtaining money under false pretenses, driving while intoxicated and three separate third degree burglary offenses.
. The defendant was charged with unlawful possession and discharge of a firearm.
Question: What is the second most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
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songer_geniss
|
A
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
UNITED STATES of America, Plaintiff-Appellee, v. Aaron Leon LITTERAL and Dell Rae Wyatt, Defendants-Appellants.
Nos. 88-1453, 89-10039.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 12, 1989.
Decided July 30, 1990.
Thomas V. Miles, Barry Nix, Mark Coleman, Fresno, Cal., for defendants-appellants.
Carl M. Faller, Asst. U.S. Atty., Fresno, Cal., for plaintiff-appellee.
Before CHOY, TANG and FLETCHER, Circuit Judges.
TANG, Circuit Judge:
Aaron Leon Litteral and Dell Rae Wyatt appeal their convictions on various charges relating to methamphetamine manufacturing. We affirm.
FACTS AND PROCEEDINGS BELOW
In December of 1987, an informant told the El Paso, Texas, office of the United States Marshal that Litteral, the subject of a federal arrest warrant, was residing in Mohave, California. The El Paso office relayed this information to its Fresno office. On December 28, 1987, the Fresno office called the informant, a codefendant of Litteral in a prior case. She told the Fresno Marshal’s office that her brother and sister had seen Litteral at a mobile home in Mohave, California. She also said that Litteral had been living at that home for several months. The informant had also seen Litteral in Mohave driving a yellow Chevy Camaro and a blue Ford Bronco. On December 28, 1987, at approximately noon, the informant met with the United States Marshals in Mohave and repeated her information. At approximately 1:00 p.m., the informant went with the law enforcement officers on a drive-by of the residence. During the drive-by, the officers saw both a yellow Camaro and a blue Bronco. The informant told the United States Marshals that if the Bronco was at the residence, Litteral was probably there.
Between 1:30 and 1:45 p.m., law enforcement officers went to the property to execute the outstanding arrest warrant for Litteral. When they entered the property, the law enforcement officers encountered Wyatt who lived there. Soon after entry, the officers conducted a sweep of the mobile home and the adjacent buildings in an attempt to locate Litteral. While in the mobile home, one of the officers observed items in the bedroom which he identified as narcotics paraphernalia. He also observed a white powdery substance on the dresser and approximately $3,000 in cash spread out on the bed.
Approximately fifteen minutes after the officers first entered the property, Litteral drove up in a pickup truck. The officers arrested Litteral pursuant to the arrest warrant. Based on what the officer had seen in the mobile home, the law enforcement officials obtained a telephonic search warrant. When the officers executed the search warrant, they found: (1) numerous items of equipment which are used to manufacture methamphetamine, including flasks, a heating mantle, a condenser, a scale and breathing devices; (2) liquid which included methamphetamine; (3) chlo-ropseudoephedrine, a powder which is produced during an intermediate step in the manufacturing of methamphetamine; (4) documents located in a briefcase in the living room which listed chemicals necessary to manufacture methamphetamine as well as an outline of the manufacturing process (subsequent analysis revealed numerous fingerprints of Wyatt on these documents); (5) methamphetamine; and (6) a receipt from a chemical company for the purchase of two chemicals used in a methamphetamine manufacturing process.
After his arrest, Litteral made a number of statements to law enforcement officers. He said that he had been living at the property off and on since August 1987. In addition, he said that the majority of the methamphetamine lab had been moved several days prior to his arrest and that the rest of the lab would have been moved in the next couple of days. He also stated that the laboratory could produce 100 pounds of methamphetamine but that it took more than two people and several days to accomplish that. Finally, he said that the several large drums that were found on the property were used for mixing chemicals during the “chlorination” stage of the methamphetamine manufacturing.
On January 28, 1988, the grand jury indicted Litteral and Wyatt for conspiracy to manufacture methamphetamine, as well as for manufacturing methamphetamine. The grand jury also indicted Wyatt for maintaining a place for the manufacturing of methamphetamine.
Wyatt moved to quash the search warrant and suppress evidence. In her motion, Wyatt contended that the officers did not have reason to believe that Litteral was on the property. She also argued that the officers’ conduct violated her privacy expectations. Litteral joined Wyatt’s motion on the basis that he had standing because he had lived on the premises on and off since August of 1987.
At the hearing on the motion to suppress, Wyatt stated that Litteral did not live on the property but was there from time to time and slept there occasionally. She estimated that Litteral was present at the residence ten percent of the time.
The district court denied Wyatt’s and Litteral’s motion to suppress. In that denial, the district court stated that the informant’s statement “that Litteral has been residing in the mobile home has not been discredited.”
Litteral also filed a motion asking the district court either to declare the Sentencing Guidelines unconstitutional, or in the alternative to find that the Guidelines did not apply to him. Wyatt joined Litteral’s motion. The district court sentenced Lit-teral under both the Guidelines and the preexisting sentencing scheme. The district court also sentenced Wyatt under both the Guidelines and the preexisting sentencing scheme. Both Litteral and Wyatt filed timely appeals.
DISCUSSION
Litteral’s Appeal
1. Sufficiency of the Evidence
Litteral contends that insufficient evidence supports his convictions for (1) conspiracy to manufacture methamphetamine; and (2) manufacturing, or aiding and abetting in the manufacturing of methamphetamine.
In reviewing the sufficiency of the evidence on appeal, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original); see also United States v. Luttrell, 889 F.2d 806, 809 (9th Cir.1989).
“The essential elements of a conspiracy are (1) an agreement to engage in criminal activity, (2) one or more overt acts taken to implement the agreement, and (3) the requisite intent to commit the substantive crime.” United States v. Meyers, 847 F.2d 1408, 1412-13 (9th Cir.1988). “ ‘The prosecution need not show the agreement to have been explicit. An implicit agreement may be inferred from the facts and circumstances of the case.’ ” United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.) (quoting United States v. Monroe, 552 F.2d 860, 862 (9th Cir.), cert. denied, 431 U.S. 972, 97 S.Ct. 2936, 53 L.Ed.2d 1069 (1977)), cert. denied, — U.S. -, 110 S.Ct. 179, 107 L.Ed.2d 135 (1989). “Once the existence of the conspiracy is shown, evidence establishing beyond a reasonable doubt a knowing connection of the defendant with the conspiracy, even though the connection is slight, is sufficient to convict him of knowing participation in the conspiracy.” Meyers, 847 F.2d at 1413.
To prove that a defendant has manufactured methamphetamine, the government must show that a defendant manufactured the drug and did so knowingly or intentionally. See 21 U.S.C. § 841(a)(1).
“The elements necessary to convict an individual under an aiding and abetting theory are (1) that the accused had the specific intent to facilitate the commission of a crime by another, (2) that the accused had the requisite intent of the underlying substantive offense, (3) that the accused assisted or participated in the commission of the underlying substantive offense, and (4) that someone committed the underlying substantive offense.” United States v. Gaskins, 849 F.2d 454, 459 (9th Cir.1988).
We conclude that sufficient evidence supports Litteral’s convictions for (1) conspiracy to manufacture methamphetamine; and (2) manufacturing methamphetamine, or aiding and abetting in the manufacturing of methamphetamine. A rational jury could have convicted Litteral on both counts based on the following evidence: (1) Litteral admitted he lived at Wyatt’s mobile home on and off for four months prior to his arrest; (2) the mobile home contained (i) methamphetamine powder, (ii) a receipt for purchase of chemicals used in methamphetamine production, (iii) chloropseudoephedrine, a chemical produced during an intermediate step in the manufacturing process, (iv) a shopping list of chemicals to produce methamphetamine, (v) an outline of the steps in methamphetamine production, (vi) liquid in the freezer which contained methamphetamine; (3) expert testimony that freezing methamphetamine maximizes the amount of methamphetamine that can be produced; (4) Litteral’s statement that most of the laboratory had been dismantled; and (5) Litteral’s statements that the lab could produce 100 pounds of methamphetamine.
This evidence sufficiently supports the conspiracy charge. From the abundant evidence of manufacturing, as well as Litteral’s admission of involvement in manufacturing, any rational jury could find that Litteral and Wyatt had agreed to conspire to manufacture methamphetamine. Litteral’s admission of involvement provides the knowing connection to the conspiracy.
Though the lab may not have been manufacturing drugs at the moment the officers executed the warrant, the evidence found and Litteral’s admission provides more than sufficient evidence for a jury to conclude that manufacturing had recently occurred at the site. Indeed, the jury could even have concluded that the manufacturing was ongoing because the liquid found in the freezer was a manufacturing step designed to maximize the methamphetamine produced.
Moreover, given Litteral’s admission and the evidence that someone had manufactured methamphetamine, the jury could have found all the necessary elements to convict Litteral as an aider and abettor.
2. Constitutionality & Application of Sentencing Guidelines
Litteral argues the Sentencing Guidelines are unconstitutional for four reasons: (1)the Guidelines violate due process because they fail to grant the trial judge adequate discretion to individualize sentencing; (2) the Guidelines violate due process because the Sentencing' Commission went beyond its statutory mandate when it decided that straight probation should be available only rarely; (3) the Guidelines violate the Presentment Clause of Article I of the United States Constitution because after the Sentencing Commission promulgated the Guidelines they were not presented to the President; and (4) the Guidelines violate due process because the criminal history category looks at the lengths of sentences imposed on past convictions.
Litteral also contends that the Sentencing Guidelines do not apply to him for two reasons. First, there is no evidence that the offenses occurred after the Guidelines became effective. Second, he was sentenced after the Ninth Circuit declared the Guidelines unconstitutional in Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245 (9th Cir.1988), but before the Supreme Court upheld the guidelines in Mistretta v. United States, 488 U.S. 361, -, 109 S.Ct. 647, -, 102 L.Ed.2d 714 (1989). He asserts that during this “window period” the Guidelines do not apply retroactively.
(i) Constitutionality Issues
a. Standard of Review
This court reviews de novo the constitutionality of a statute. See United States v. Savinovich, 845 F.2d 834, 839 (9th Cir.), cert. denied, 488 U.S. 943, 109 S.Ct. 369, 102 L.Ed.2d 358 (1988).
b. Merits
(1) Individual Sentencing
We reject this argument for the reasons we recently set forth in United States v. Brady, 895 F.2d 538 (9th Cir.1990).
(2)Availability of Probation
We reject this argument for reasons we recently set out in United States v. Belgard, 894 F.2d 1092 (9th Cir.1990).
(3)Presentment Clause
In Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983), the Supreme Court struck down legislative vetoes on the ground that such enactments violated the Presentment Clause of Article I of the Constitution because they had not been presented to the President for his signature. In Chadha, Congress had authorized the Attorney General to suspend deportation of an alien. Id. at 924, 103 S.Ct. at 2770. However, when the Attorney General exercised this power, he or she had to report the suspension to Congress. Id. at 924-25, 103 S.Ct. at 2770-71. Once Congress received the report, either the House of Representatives or the Senate could “veto” the suspension. Id. at 925, 103 S.Ct. at 2770-71. The Supreme Court found this veto violated the Presentment Clause. See id. at 952-54, 103 S.Ct. at 2784-85.
We conclude that the Sentencing Guidelines do not violate Chadha. The legislative scheme of the Sentencing Guidelines is unlike the one presented in Chadha. The section which Litteral refers to, Section 994(p), does state that the Guidelines, or any changes in them, only become effective 180 days after they are reported to Congress. See 28 U.S.C. § 994(p). However, Section 994(p) does not give Congress the authority to veto the Guidelines or any subsequent changes. Id. Indeed, that section explicitly states that only a new act of Congress can change the 180 day period, the Guidelines, or any amendment. Id. Such a means of controlling an enactment is constitutional. See Bowsher v. Synar, 478 U.S. 714, 733-34, 106 S.Ct. 3181, 3191, 92 L.Ed.2d 583 (1986) (“[OJnce Congress makes its choice in enacting legislation, its participation ends. Congress can thereafter control the execution of its enactment only indirectly — by passing new legislation.”).
If anything, the 180-day delay in effectiveness of the Guidelines, or any amendment to the Guidelines, is a “report and wait” provision which allows Congress an opportunity to review the Guidelines or amendments before they become effective and to pass legislation barring their effectiveness if Congress finds the Guidelines or amendments objectionable. See Chadha, 462 U.S. at 935 n. 9, 103 S.Ct. at 2776 n. 9 (description of what a “report and wait” provision entails.) The Supreme Court has approved the use of report and wait provisions. See id.
(4)Criminal History
Litteral’s due process argument concerning the Sentencing Guidelines’ criminal history section raises two different issues. First, he raises, not a due process claim, but an equal protection claim because he suggests that the use of the lengths of prior sentences promotes disparate treatment. Second, in attacking the use of the lengths of prior sentences to determine the criminal history score, his second argument is a claim that the Guidelines violate due process because of the type of information they allow a court to consider.
a. Equal Protection
This circuit has held that “persons convicted of crimes are not a suspect class.” United States v. Smith, 818 F.2d 687, 691 (9th Cir.1987). Thus, to be successful in his equal protection challenge, Litteral must demonstrate that use of the length of prior sentences to help determine his criminal history score is not rationally related to a legitimate government interest. See id.
We conclude no equal protection violation occurs because of the use of the lengths of prior sentences in determining the criminal history score. The lengths of prior sentences are related to the severity of the prior offenses because generally more serious offenses draw longer sentences. There is a legitimate government interest in having more dangerous criminals serve longer sentences. Therefore, using the length of prior sentences to help calculate the severity of a defendant’s criminal history is rationally related to a legitimate government interest in having more dangerous criminals serve longer sentences.
b. Due Process
“Violations of a defendant’s due process rights occur when a court relies on materially false or unreliable information in sentencing.” United States v. Columbus, 881 F.2d 785, 787 (9th Cir.1989).
We conclude that the use of the lengths of prior sentences to help determine a defendant’s criminal history does not violate due process. Litteral has not shown that the use of the lengths of prior sentences is necessarily unreliable. Therefore, the use of lengths of prior sentences has not been shown necessarily to violate due process.
Even if we assume that the lengths of prior sentences are often unreliable, we need not conclude that the use of the lengths of prior sentences violates due process. The Guidelines do not require that the lengths of prior sentences be used alone to determine a defendant’s criminal history. Instead, the Guidelines allow consideration of information other than the lengths of past sentences. See Guideline 4A1.3. This opportunity to correct unreliable uses of the lengths of prior sentences minimizes the likelihood of any due process violations. See United States v. White, 869 F.2d 822, 828 (5th Cir.) (“the guidelines allow the defendant to introduce information concerning the seriousness of an underlying conviction so that an accurate criminal history category can be set by the court.”), cert. denied, — U.S. -, 109 S.Ct. 3172, 104 L.Ed.2d 1033 & — U.S. -, 110 S.Ct. 560, 107 L.Ed.2d 555 (1989).
(ii) Application Issues
a. Standard of Review
This court reviews the legality of a criminal sentence de novo. United States v. Cervantes-Lucatero, 889 F.2d 916, 917 (9th Cir.1989).
b. Merits
(1) Evidence of Date of the Offense
The Sentencing Guidelines only apply to offenses committed after November 1, 1987. United States v. Rewald, 835 F.2d 215, 216 (9th Cir.1987).
Here, as set out in the facts and proceedings and sufficiency of evidence sections of this opinion, abundant evidence exists that Litteral’s offenses occurred on or near December 28, 1987.
(2) Window Period
We reject this argument because we have held that the Guidelines do apply retroactively during the window period. United States v. Kane, 876 F.2d 734, 735-36 (9th Cir.), cert. denied, — U.S. -, 110 S.Ct. 173, 107 L.Ed.2d 130 (1989).
Wyatt’s Appeal
1. Motion to Suppress
Wyatt contends that the district court erred when it denied her motion to suppress evidence obtained from the search of the mobile home because (1) Litteral was not a resident and therefore Litteral’s arrest warrant did not authorize entry on the property; and (2) even if Litteral was a resident, law enforcement officials had no reasonable belief that Litteral would be present at the time of the execution of their arrest warrant.
a. Standard of Review
“Motions to suppress are generally reviewed de novo.” United States v. Thomas, 863 F.2d 622, 625 (9th Cir.1988). “[MJixed questions of law and fact usually require de novo review, although the clearly erroneous standard applies if the necessary analysis is predominantly factual in nature.” Id.
b. Merits
(1) Litteral’s Residence
In Payton v. New York, 445 U.S. 573, 603, 100 S.Ct. 1371, 1388, 63 L.Ed.2d 639 (1980), the Supreme Court held that “an arrest warrant founded on probable cause implicitly carries with it the limited authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within.” However, in Steagald v. United States, 451 U.S. 204, 215-16, 101 S.Ct. 1642, 1649-50, 68 L.Ed.2d 38 (1981), the Supreme Court held that, absent exigent circumstances, an arrest warrant does not justify entry into a third person’s home to search for the subject of the arrest warrant.
Thus, under Steagald, if the suspect is just a guest of the third party, then the police must obtain a search warrant for the third party’s dwelling in order to use evidence found against the third party. See id. at 213, 101 S.Ct. at 1648. But if the suspect is a co-resident of the third party, then Steagald does not apply, and Payton allows both arrest of the subject of the arrest warrant and use of evidence found against the third party. See United States v. Robertson, 833 F.2d 777, 780 (9th Cir.1987).
In Perez v. Simmons, 884 F.2d 1136, 1140 (9th Cir.1988), a section 1983 action, this circuit considered “what constitutes a person’s ‘home’ within the meaning of Pay-ton and Steagald.” In Perez, Albert Perez, the subject of the arrest warrant, had occasionally spent the night at his sister Irma’s apartment. The Perez court refused to view “Irma Perez’s apartment as Albert’s residence even though he may have occasionally spent a night there.” Id. at 1141.
The Perez court summarized its holding by stating that a violation of Irma Perez’s Fourth Amendment rights occurred “[ujnless a jury finds that Albert was an actual co-resident of the apartment, and the police had reasonable grounds for believing that Albert was in the apartment at the time_” Id. at 1142 (emphasis added).
Here, we conclude that the district court did not err when it concluded that Litteral was a co-resident with Wyatt in the mobile home. Although there is evidence in the record that suggests that Litteral was just a frequent guest, other evidence indicates that Litteral was a co-resident. Because conflicting evidence exists on the question of whether Litteral was a co-resident, we conclude that the district court’s determination that Litteral was a co-resident was not clear error.
(2) Litteral’s Presence at the Property
As mentioned above, in addition to the co-resident requirement, police must also have reasonable grounds for believing that the subject of the arrest warrant is present at the time of the warrant’s execution. See Perez, 884 F.2d at 1142.
We conclude that the district court’s finding that the police had a reasonable grounds for believing that Litteral was present at the property was not clear error. The informant told the agents that if Lit-teral’s car was there, he would be there. The agents spotted Litteral’s car before they entered the property. Thus, the police had a reasonable belief that Litteral would be present.
2.Ineffective Assistance of Counsel
Wyatt contends that her counsel acted ineffectively because he failed to develop a number of facts at the suppression hearing.
To decide this claim, we must apply the two tier test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, a defendant must show that her counsel’s actions were outside the wide range of professionally competent assistance. United States v. Layton, 855 F.2d 1388, 1414 (9th Cir.1988), cert. denied, — U.S.-, 109 S.Ct. 1178, 103 L.Ed.2d 244 (1989). Second, a defendant must demonstrate that she was prejudiced by reason of counsel’s actions. Id.
We conclude that Wyatt cannot meet the Strickland test. While her counsel may have more effectively developed the facts related to the argument about Litteral’s co-residency, he more than adequately presented Wyatt’s motion to suppress.
3. Sufficiency of the Evidence
The evidence admitted against Wyatt is essentially the same as the evidence admitted against Litteral. Thus, for reasons outlined above, we conclude the evidence was sufficient.
4. Constitutionality & Application of Sentencing Guidelines
We reject Wyatt’s claims about the unconstitutionality of the guidelines for reasons set out in our discussion of Litteral’s appeal.
CONCLUSION
We affirm Litteral’s convictions. The evidence was sufficient to support his convictions. Litteral’s constitutional arguments lack merit.
We also affirm Wyatt’s convictions. The findings concerning Litteral’s co-residence and presence on Wyatt’s property were not clearly erroneous. Wyatt’s constitutional arguments lack merit. Wyatt’s sufficiency of the evidence claim and ineffective assistance of counsel claim lack merit as well.
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:
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sc_issue_1
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06
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What follows is an opinion from the Supreme Court of the United States. Your task is to 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.
BROWER, individually and as administrator of the ESTATE OF CALDWELL (BROWER), et al. v. COUNTY OF INYO et al.
No. 87-248.
Argued January 11, 1989
Decided March 21, 1989
Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O’Connor, and Kennedy, JJ., joined. Stevens, J., filed an opinion concurring in the judgment, in which Brennan, Marshall, and Blackmun, JJ., joined, post, p. 600.
Robert G. Gilmore argued the cause for petitioners. With him on the briefs was Craig A. Diamond.
Philip W. McDowell argued the cause for respondents. With him on the brief was Gregory L. James.
Justice Scalia
delivered the opinion of the Court.
On the night of October 23, 1984, William James Caldwell (Brower) was killed when the stolen car that he had been driving at high speeds for approximately 20 miles in an effort to elude pursuing police crashed into a police roadblock. His heirs, petitioners here, brought this action in Federal District Court under 42 U. S. C. §1983, claiming, inter alia, that respondents used “brutal, excessive, unreasonable and unnecessary physical force” in establishing the roadblock, and thus effected an unreasonable seizure of Brower, in violation of the Fourth Amendment. Petitioners alleged that “under color of statutes, regulations, customs and usages,” respondents (1) caused an 18-wheel tractor-trailer to be placed across both lanes of a two-lane highway in the path of Brower’s flight, (2) “effectively concealed” this roadblock by placing it behind a curve and leaving it unilluminated, and (3) positioned a police car, with its headlights on, between Brower’s oncoming vehicle and the truck, so that Brower would be “blinded” on his approach. App. 8-9. Petitioners further alleged that Brower’s fatal collision with the truck was “a proximate result” of this official conduct. Id., at 9. The District Court granted respondents’ motion to dismiss the complaint for failure to state a claim on the ground (insofar as the Fourth Amendment claim was concerned) that “establishing a roadblock [was] not unreasonable under the circumstances.” App. to Pet. for Cert. A-21. A divided panel of the Court of Appeals for the Ninth Circuit affirmed the dismissal of the Fourth Amendment claim on the basis that no “seizure” had occurred. 817 F. 2d 540, 545-546 (1987). We granted certiorari, 487 U. S. 1217 (1988), to resolve a conflict between that decision and the contrary holding of the Court of Appeals for the Fifth Circuit in Jamieson v. Shaw, 772 F. 2d 1205 (1985).
The Fourth Amendment to the Constitution provides:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.”
In Tennessee v. Garner, 471 U. S. 1 (1985), all Members of the Court agreed that a police officer’s fatal shooting of a fleeing suspect constituted a Fourth Amendment “seizure.” See id., at 7; id., at 25 (O’Connor, J., dissenting). We reasoned that “[wjhenever an officer restrains the freedom of a person to walk away, he has seized that person.” Id., at 7. While acknowledging Gamer, the Court of Appeals here concluded that no “seizure” occurred when Brower collided with the police roadblock because “[p]rior to his failure to stop voluntarily, his freedom of movement was never arrested or restrained” and because “[h]e had a number of opportunities to stop his automobile prior to the impact.” 817 F. 2d, at 546. Essentially the same thing, however, could have been said in Garner. Brower’s independent decision to continue the chase can no more eliminate respondents’ responsibility for the termination of his movement effected by the roadblock than Garner’s independent decision to flee eliminated the Memphis police officer’s responsibility for the termination of his movement effected by the bullet.
The Court of Appeals was impelled to its result by consideration of what it described as the “analogous situation” of a police chase in which the suspect unexpectedly loses control of his car and crashes. See Galas v. McKee, 801 F. 2d 200, 202-203 (CA6 1986) (no seizure in such circumstances). We agree that no unconstitutional seizure occurs there, but not for a reason that has any application to the present case. Violation of the Fourth Amendment requires an intentional acquisition of physical control. A seizure occurs even when an unintended person or thing is the object of the detention or taking, see Hill v. California, 401 U. S. 797, 802-805 (1971); cf. Maryland v. Garrison, 480 U. S. 79, 85-89 (1987), but the detention or taking itself must be willful. This is implicit in the word “seizure,” which can hardly be applied to an unknowing act. The writs of assistance that were the principal grievance against which the Fourth Amendment was directed, see Boyd v. United States, 116 U. S. 616, 624-625 (1886); T. Cooley, Constitutional Limitations *301-*302, did not involve unintended consequences of government action. Nor did the general warrants issued by Lord Halifax in the 1760’s, which produced “the first and only major litigation in the English courts in the field of search and seizure,” T. Taylor, Two Studies in Constitutional Interpretation 26 (1969), including the case we have described as a “monument of English freedom” “undoubtedly familiar” to “every American statesman” at the time the Constitution was adopted, and considered to be “the true and ultimate expression of constitutional law,” Boyd, supra, at 626 (discussing Entick v. Carrington, 19 How. St. Tr. 1029, 95 Eng. Rep. 807 (K. B. 1765)). In sum, the Fourth Amendment addresses “misuse of power,” Byars v. United States, 273 U. S. 28, 33 (1927), not the accidental effects of otherwise lawful government conduct.
Thus, if a parked and unoccupied police car slips its brake and pins a passerby against a wall, it is likely that a tort has occurred, but not a violation of the Fourth Amendment. And the situation would not change if the passerby happened, by lucky chance, to be a serial murderer for whom there was an outstanding arrest warrant — even if, at the time he was thus pinned, he was in the process of running away from two pursuing constables. It is clear, in other words, that a Fourth Amendment seizure does not occur whenever there is a governmentally caused termination of an individual’s freedom of movement (the innocent passerby), nor even whenever there is a governmentally caused and governmentally desired termination of an individual’s freedom of movement (the fleeing felon), but only when there is a governmental termination of freedom of movement through means intentionally applied. That is the reason there was no seizure in the hypothetical situation that concerned the Court of Appeals. The pursuing police car sought to stop the suspect only by the show of authority represented by flashing lights and continuing pursuit; and though he was in fact stopped, he was stopped by a different means — his loss of control of his vehicle and the subsequent crash. If, instead of that, the police cruiser had pulled alongside the fleeing car and sideswiped it, producing the crash, then the termination of the suspect’s freedom of movement would have been a seizure.
This analysis is reflected by our decision in Hester v. United States, 265 U. S. 57 (1924), where an armed revenue agent had pursued the defendant and his accomplice after seeing them obtain containers thought to be filled with “moonshine whisky.” During their flight they dropped the containers, which the agent recovered. The defendant sought to suppress testimony concerning the containers’ contents as the product of an unlawful seizure. Justice Holmes, speaking for a unanimous Court, concluded: “The defendant’s own acts, and those of his associates, disclosed the jug, the jar and the bottle — and there was no seizure in the sense of the law when the officers examined the contents of each after they had been abandoned.” Id., at 58. Thus, even though the incriminating containers were unquestionably taken into possession as a result (in the broad sense) of action by the police, the Court held that no seizure had taken place. It would have been quite different, of course, if the revenue agent had shouted, “Stop and give us those bottles, in the name of the law!” and the defendant and his accomplice had complied. Then the taking of possession would have been not merely the result of government action but the result of the very means (the show of authority) that the government selected, and a Fourth Amendment seizure would have occurred.
In applying these principles to the dismissal of petitioners’ Fourth Amendment complaint for failure to state a claim, we can sustain the District Court’s action only if, taking the allegations of the complaint in the light most favorable to petitioners, see Scheuer v. Rhodes, 416 U. S. 232, 236 (1974), we nonetheless conclude that they could prove no set of facts entitling them to relief for a “seizure.” See Conley v. Gibson, 355 U. S. 41, 45-46 (1957). Petitioners have alleged the establishment of a roadblock crossing both lanes of the highway. In marked contrast to a police car pursuing with flashing lights, or to a policeman in the road signaling an oncoming car to halt, see Kibbe v. Springfield, 777 F. 2d 801, 802-803 (CAI 1985), cert. dism’d, 480 U. S. 257 (1987), a roadblock is not just a significant show of authority to induce a voluntary stop, but is designed to produce a stop by physical impact if voluntary compliance does not occur. It may well be that respondents here preferred, and indeed earnestly hoped, that Brower would stop on his own, without striking the barrier, but we do not think it practicable to conduct such an inquiry into subjective intent. See United States v. Leon, 468 U. S. 897, 922, n. 23 (1984); see also Anderson v. Creighton, 483 U. S. 635, 641 (1987); Harlow v. Fitzgerald, 457 U. S. 800, 815-819 (1982). Nor do we think it possible, in determining whether there has been a seizure in a case such as this, to distinguish between a roadblock that is designed to give the oncoming driver the option of a voluntary stop ie. g., one at the end of a long straightaway), and a roadblock that is designed precisely to produce a collision (e. g., one located just around a bend). In determining whether the means that terminates the freedom of movement is the very means that the government intended we cannot draw too fine a line, or we will, be driven to saying that one is not seized who has been stopped by the accidental discharge of a gun with which he was meant only to be bludgeoned, or by a bullet in the heart that was meant only for the leg. We think it enough for a seizure that a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result. It was enough here, therefore, that, according to the allegations of the complaint, Brower was meant to be stopped by the physical obstacle of the roadblock — and that he was so stopped.
This is not to say that the precise character of the roadblock is irrelevant to further issues in this case. “Seizure” alone is not enough for § 1983 liability; the seizure must be “unreasonable.” Petitioners can claim the right to recover for Brower’s death only because the unreasonableness they allege consists precisely of setting up the roadblock in such manner as to be likely to kill him. This should be contrasted with the situation that would obtain if the sole claim of unreasonableness were that there was no probable cause for the stop. In that case, if Brower had had the opportunity to stop voluntarily at the roadblock, but had negligently or intentionally driven into it, then, because of lack of proximate causality, respondents, though responsible for depriving him of his freedom of movement, would not be liable for his death. See Martinez v. California, 444 U. S. 277, 285 (1980); Cameron v. Pontiac, 813 F. 2d 782, 786 (CA6 1987), Thus, the circumstances of this roadblock, including the allegation that headlights were used to blind the oncoming driver, may yet determine the outcome of this case.
The complaint here sufficiently alleges that respondents, under color of law, sought to stop Brower by means of a roadblock and succeeded in doing so. That is enough to constitute a “seizure” within the meaning of the Fourth Amendment. Accordingly, we reverse the judgment of the Court of Appeals and remand for consideration of whether the District Court properly dismissed the Fourth Amendment claim on the basis that the alleged roadblock did not effect a seizure that was “unreasonable.”
It is so ordered.
Question: What is the issue of the decision?
01. involuntary confession
02. habeas corpus
03. plea bargaining: the constitutionality of and/or the circumstances of its exercise
04. retroactivity (of newly announced or newly enacted constitutional or statutory rights)
05. search and seizure (other than as pertains to vehicles or Crime Control Act)
06. search and seizure, vehicles
07. search and seizure, Crime Control Act
08. contempt of court or congress
09. self-incrimination (other than as pertains to Miranda or immunity from prosecution)
10. Miranda warnings
11. self-incrimination, immunity from prosecution
12. right to counsel (cf. indigents appointment of counsel or inadequate representation)
13. cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty)
14. cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts)
15. line-up
16. discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations)
17. double jeopardy
18. ex post facto (state)
19. extra-legal jury influences: miscellaneous
20. extra-legal jury influences: prejudicial statements or evidence
21. extra-legal jury influences: contact with jurors outside courtroom
22. extra-legal jury influences: jury instructions (not necessarily in criminal cases)
23. extra-legal jury influences: voir dire (not necessarily a criminal case)
24. extra-legal jury influences: prison garb or appearance
25. extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment)
26. extra-legal jury influences: pretrial publicity
27. confrontation (right to confront accuser, call and cross-examine witnesses)
28. subconstitutional fair procedure: confession of error
29. subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy)
30. subconstitutional fair procedure: entrapment
31. subconstitutional fair procedure: exhaustion of remedies
32. subconstitutional fair procedure: fugitive from justice
33. subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case)
34. subconstitutional fair procedure: stay of execution
35. subconstitutional fair procedure: timeliness
36. subconstitutional fair procedure: miscellaneous
37. Federal Rules of Criminal Procedure
38. statutory construction of criminal laws: assault
39. statutory construction of criminal laws: bank robbery
40. statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy)
41. statutory construction of criminal laws: escape from custody
42. statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury)
43. statutory construction of criminal laws: financial (other than in fraud or internal revenue)
44. statutory construction of criminal laws: firearms
45. statutory construction of criminal laws: fraud
46. statutory construction of criminal laws: gambling
47. statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951
48. statutory construction of criminal laws: immigration (cf. immigration and naturalization)
49. statutory construction of criminal laws: internal revenue (cf. Federal Taxation)
50. statutory construction of criminal laws: Mann Act and related statutes
51. statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol
52. statutory construction of criminal laws: obstruction of justice
53. statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements)
54. statutory construction of criminal laws: Travel Act, 18 USC 1952
55. statutory construction of criminal laws: war crimes
56. statutory construction of criminal laws: sentencing guidelines
57. statutory construction of criminal laws: miscellaneous
58. jury trial (right to, as distinct from extra-legal jury influences)
59. speedy trial
60. miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure)
Answer:
|
songer_treat
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
SCHOOLER et al. v. SCHOOLER et al.
No. 9641.
United States Court of Appeals District of Columbia Circuit.
Argued June 7,1948.
Decided Nov. 22, 1948.
On Petition for Rehearing, Feb. 14, 1949.
STEPHENS, Chief Judge, dissenting on rehearing.
Mr. Leo A. Rover, of Washington, D. C., with whom Mr. Harry Friedman, of Washington, D. C., was on the brief, for appellants.
Messrs. David Wiener and Samuel R.. Blanken, both of Washington, D. C., for appellees.
Before STEPHENS, Chief Judge, and EDGERTON and PROCTOR, Circuit-Judges.
PROCTOR, Circuit Judge.
At the trial of this action in the District Court, the defendants (appellees) moved for judgment at the close of the plaintiffs’ case in chief. The motion was granted and judgment entered. Plaintiffs appeal.
The evidence tended to prove the following facts:
Louis Schooler had six children by three marriages. Wilfred Schooler, Yetta B. Lesser, Mary S. Reiskin and Ida Sherman, plaintiffs (appellants), are children of his first and second marriages. Jack and Robert Schooler are children of his third marriage to Sophie Schooler. These three persons were defendants. For brevity all parties will be referred to by their first names. Louis and Sophie owned several parcels of income-producing real estate in the District of Columbia as tenants by ■the entirety. On October 9, 1941, while at a hospital awaiting an . operation, Louis made a will leaving all his estate to Sophie. He further stated -it .to be his “will and wish” that during the lifetime of Sophie ■one-fourth of the net income from the rented property should be paid to Wilfred; that he should control the bookkeeping and accounting and be consulted as to repairs; that Jack should receive $25 a week and act as manager in the “collections and maintenance” of the property, and that upon the death of Sophie all the property should be divided equally among the six children. Wilfred was named executor. Pursuant to an understanding when the will was made an instrument denoted “agreement” was ex--ecuted by Louis and Sophie. It bore' thé' same date as the will, although drawn and signed some days later. This writing stated that in consideration of the execution of the will Sophie agreed that “-the will and wish clause” thereof should become a part of the agreement, and that she would carry out the same as though it-were a bequest of property belonging solely to Louis in which she should have only a life estate. On June 25, 1942, an “agreement” was executed by Sophie, Wilfred--and Jack. After reciting ownership of the real estate by Louis and Sophie as tenants by the entirety and the above-mentioned agreement it was stated that in consideration of the execution of the will of Louis and other valuable consideration passing between the parties Sophie agreed that so long as she lived Wilfred would receive one-fourth of the net income from the rented property and that Jack should collect the rents and manage the same and receive $25 weekly therefor. This instrument and -the earlier one dated October 9th, 1941, were signed and sealed by the parties thereto and acknowledged before a notary. Louis died July 30, 1942. His will, although filed with the registrar, has not been offered for probate. For sometime after Louis’ death Sophie made payments to Wilfred totaling more than $2,900, allegedly from the rental income.
Finally, about four and one-half years after Louis’ death Wilfred filed his complaint against Sophie and Jack for accounting of moneys ■ received since the death of Louis and for judgment for moneys claimed to be due him out of income from the -property. Yetta, Mary and Ida, other children of the first and second marriages, were ‘added as plaintiffs. They prayed for judgment declaring all six children vested with a remainder in the real property subject to a life estate in Sophie. Robert was joined as a defendant. Answering, the defendants claimed sole ownership in Sophie, as survivqr of the tenancies by the entire-ties, of all real estate covered by the will, and that the property was not subject to disposal by Louis; that there was no valid consideration for the agreement of October 9, 1941; that Sophie executed the same to please the whim of her ill husband; "that the agreement of June 25, 1942, was without consideration and that payments made to Wilfred were to avert arguments which caused her much physical harm. She included a counterclaim to recover back the moneys paid.
Proffers of testimony were made by plaintiffs, to prove certain other acts and declarations by Sophie indicating acknowledgment and acceptance of the terms of the will and agreement of October 9, 1941, and as tending to show her understanding and intentions respecting the same. These were rejected by the court. The trial court found that all the properties in question were owned at the time of Louis’ death jointly by him and Sophie as tenants by the entirety; that upon Louis’ death all were in the sole ownership of Sophie; that there was no evidence to establish in any plaintiff a right, title or interest in said properties; that Sophie had paid no moneys to Wilfred pursuant to any legal obligation, and that plaintiffs had not sustained the burden of proof in attempting to establish their claims. Accordingly, judgment'was entered for defendants and the cause dismissed. The counterclaim was dismissed without prejudice.
Appellants contend that the “agreement” of October 9, 1941, is in legal effect a deed, vesting a life estate in Sophie, subject to a charge against the net income of 25% to Wilfred and $25 weekly to Jack, with remainders in. fee to the six children upon the death of Sophie. References are also • made to the writing as -a gift or trust. But in either case a deed was necessary. No ■ explanation is advanced for the instrument. of June 25, 1942, except that it “clarifies” and “corroborates” the one of October 9th. The primary question then is whether this last mentioned instrument meets the requirements of a deed.
The following provisions of Title 45, District of Columbia Code 1940 bear directly upon the question:
Section 106.
“No estate of inheritance, or for life, or for a longer term than one year, in any real property, corporeal or incorporeal, in the District of Columbia, or any declaration or limitation of uses in the same, for any of the estates mentioned, shall be created or take effect, except by deed signed and sealed by the grantor, lessor, or de-clarant, or by will.”
Section 301.
“The following forms or forms to the like effect shall be sufficient, and any covenant, limitation, restriction, or proviso allowed by law may be added, annexed to, or introduced in the said forms. Any other form conforming to the rules herein laid down shall be sufficient.”
Measuring the instrument by the foregoing requirements, enlightened by the forms set forth, which cannot be disregarded, we think it is not sufficient to grant or create any estate or úse in the property. A deed is a written expression of the act of granting or creating an estate or use in land. It bespeaks a present act, rather than a promise for future action. Agricultural Bank v. Rice, 45 U.S. 225, 4 How. 225, 11 L.Ed. 949; Williams v. Paine, 169 U.S. 55, 76, 18 S.Ct. 279, 42 L.Ed. 658; Chavez v. De Bergere, 231 U.S. 482, 34 S.Ct. 144, 58 L.Ed. 325. The distinction readily appears as between a deed to land and a contract to sell the same. One is a grant, the other only a promise to grant. The writing of October -9th at best is but a promise by Sophie to create certain estates in favor of the children. That falls far short of-a grant or declaration actually conveying or creating an estate.
Appellees raise the question of consideration. They contend that there was no actual consideration for Sophie’s agreement. According to the instrument itself Louis’ will was the moving consideration for Sophie’s promise to “carry out the will and wish clause” of his will. We cannot see that the will did lend any legal support for Sophie’s undertaking. Admittedly all Louis’ property covered by the will was jointly owned with his wife. Hence if she survived him ownership in its entirety would remain in her. Nothing done by him alone could alter that result. Such is the peculiar nature of a tenancy by the entirety. Therefore, the devise to Sophie was a’futile act, without substance to form any legal consideration for her promise. Obviously, ' however; one may convéy his property to another without material inducement, if in so doing the rights of others, such as a creditors, are not prejudiced. Hence Louis and Sophie might have conveyed their property to. their children without any material consideration. But, as we have pointed out, such a gift could only be effected by their joint deed conforming to the requirements of law. The fact that they did not so convey the property, but kept full ownership and control raises a strong inference that they had no intention at that time of relinquishing their absolute rights by granting any interest or estate in the property to their children. It is also consistent with the action they attempted by expressing in writing their intention as to future disposition, of the property in favor of their children. If the writing is tested as a contract, rather than a deed as contended, Sophie’s undertaking therein is purely of an executory nature and would need the support of a valid consideration.
A deed conveying real property or any interest therein, or declaring or limiting any use or trust thereof cannot take effect without delivery to a person in whose favor it is executed. D.C.Code 1940, § 45 — 501. Here there was no delivery of the instrument of October 9, 1941. That conclusion is implicit' in the findings of the trial judge. We think it is justified. Although manual delivery may not be necessary, there must be some “words or acts showing an intention that the deed shall be complete and operative” and “the intent of the parties is to be determined by what occurred at the time of the transaction.” Walker v. Warner, 31 App.D.C. 76, 85, 89; Atlas Portland Cement Co. v. Fox, 49 App.D.C. 292, 266 F. 1021. It may be reasonably inferred from the evidence that the paper remained with the attorney who drafted it for Louis and Sophie from the time of its execution until the trial, when he produced it under a subpoena. In these circumstances he was their attorney. Hence legal possession rested in them until Louis’ death. Thereafter it continued in Sophie alone. No action appears to have been taken at any time by either suggestive of a manual delivery of the paper to any person other than their own attorney. So clearly there was no actual delivery of the instrument to any of the children. Nor do we think the testimony including that proffered and rejected, bearing upon the intentions of Louis or Sophie was sufficient to prove a constructive delivery. This is especially true in view of the presumption of nondelivery arising by reason of the paper remaining in possession of the makers. Safford v. Burke, 130 Misc. 12, 223 N.Y.S. 626; Witham v. Witham, 156 Or. 59, 66 P.2d 281, 110 A.L.R. 253; Vreeland v. Vreeland, 48 N.J.Eq. 56, 21 A. 627.
Reverting to the agreement of June 25, 1942, between Sophie, Wilfred and Jack, it should be noted that this instrument expressly relates to the properties owned by Louis and Sophie as tenants by the entirety. It was made while Louis was still alive. Therefore, without his joining, it could have no force or effect as a grant of any estate or interest in the property. It should also be noted that Wilfred is making no claim under this or the earlier instrument as a contract of employment. He and the other plaintiffs stake their claims upon the single proposition that the “agreement” of October 9th operated to grant or create certain interests or estates in their favor.
The point made by appellants that error was committed in rejection of proffered testimony to show the intention and understanding of Louis and Sophie need not be considered' further. Whatever their intentions they cannot cure the fatal deficiencies of either instrument to operate as a deed. The judgment is
Affirmed.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
|
sc_adminaction
|
029
|
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.
DEPARTMENT OF TRANSPORTATION et al. v. PUBLIC CITIZEN et al.
No. 03-358.
Argued April 21, 2004
Decided June 7, 2004
Deputy Solicitor General Kneedler argued the cause for petitioners. With him on the briefs were Solicitor General Olson, Assistant Attorney General Sansonetti, Deputy Solicitor General Hungar, Deputy Assistant Attorney General Clark, Austin C. Schlick, John L. Smeltzer, David C. Shilton, Jeffrey A. Rosen, and Peter J. Plocki.
Jonathan Weissglass argued the cause for respondents. With him on the brief were Stephen P. Berzon, Gail Ruder-man Feuer, Julie Masters, Adrianna Quintero Somaini, Melissa Lin Perrella, David C. Vladeck, Patrick J Szymanski, David Rosenfeld, William S. Lerach, Patrick J. Coughlin, Albert H. Meyerhoff and Thomas O. McGarity.
Briefs of amici curiae urging affirmance were filed for the State of California et al. by Bill Lockyer, Attorney General of California, Susan L. Durbin and Gordon B. Burns, Deputy Attorneys General, Manuel M. Medeiros, Solicitor General, Tom Greene, Chief Assistant Attorney General, Theodora Berger, Senior Assistant Attorney General, and Craig C. Thompson, Supervising Deputy Attorney General, and by the Attorneys General for their respective States as follows: Terry Goddard of Arizona, Lisa Madigan of Illinois, Thomas F. Reilly of Massachusetts, Patricia A. Madrid of New Mexico, W. A. Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Christine O. Gregoire of Washington, and Peggy A. Lautenschlager of Wisconsin; for the American Public Health Association et al. by Hope M. Babcock; for Defenders of Wildlife et al. by Pamela S. Karlan and Sanjay Narayan; for the Eagle Forum Education & Legal Defense Fund by Karen B. Tripp; and for South Coast Air Quality Management District et al. by Barbara Baird and Patricia V. Tubert.
Justice Thomas
delivered the opinion of the Court.
In this case, we confront the question whether the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852 (codified, as amended, at 42 U. S. C. §§4321-4370f), and the Clean Air Act (CAA), 42 U. S. C. §§ 7401-7671q, require the Federal Motor Carrier Safety Administration (FMCSA) to evaluate the environmental effects of cross-border operations of Mexican-domiciled motor carriers, where FMCSA’s promulgation of certain regulations would allow such cross-border operations to occur. Because FMCSA lacks discretion to prevent these cross-border operations, we conclude that these statutes impose no such requirement on FMCSA.
I
Due to the complex statutory and regulatory provisions implicated in this case, we begin with a brief overview of the relevant statutes. We then turn to the factual and procedural background.
A
1
Signed into law on January 1, 1970, NEPA establishes a “national policy [to] encourage productive and enjoyable harmony between man and his environment,” and was intended to reduce or eliminate environmental damage and to promote “the understanding of the ecological systems and natural resources important to” the United States. 42 U. S. C. §4321. “NEPA itself does not mandate particular results” in order to accomplish these ends. Robertson v. Methow Valley Citizens Council, 490 U. S. 332, 350 (1989). Rather, NEPA imposes only procedural requirements on federal agencies with a particular focus on requiring agencies to undertake anal-yses of the environmental impact of their proposals and actions. See id., at 349-350. At the heart of NEPA is a requirement that federal agencies
“include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—
“(i) the environmental impact of the proposed action, “(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
“(iii) alternatives to the proposed action,
“(iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
“(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.” 42 U. S. C. § 4332(2)(C).
This detailed statement is called an Environmental Impact Statement (EIS). The Council of Environmental Quality (CEQ), established by NEPA with authority to issue regulations interpreting it, has promulgated regulations to guide federal agencies in determining what actions are subject to that statutory requirement. See 40 CFR §1500.3 (2003). The CEQ regulations allow an agency to prepare a more limited document, an Environmental Assessment (EA), if the agency’s proposed action neither is categorically excluded from the requirement to produce an EIS nor would clearly require the production of an EIS. See §§ 1501.4(aMb). The EA is to be a “concise public document” that “[b]riefly provide[s] sufficient evidence and analysis for determining whether to prepare an [EIS].” § 1508.9(a). If, pursuant to the EA, an agency determines that an EIS is not required under applicable CEQ regulations, it must issue a “finding of no significant impact” (FONSI), which briefly presents the reasons why the proposed agency action will not have a significant impact on the human environment. See §§ 1501.4(e), 1508.13.
2
What is known as the CAA became law in 1963, 77 Stat. 392. In 1970, Congress substantially amended the CAA into roughly its current form. 84 Stat. 1713. The 1970 amendments mandated national air quality standards and deadlines for their attainment, while leaving to the States the development of “implementation plan[s]” to comply with the federal standards. Ibid.
In 1977, Congress again amended the CAA, 91 Stat. 749, to prohibit the Federal Government and its agencies from “engaging] in, supporting] in any way or providing] financial assistance for, licensing] or permitting], or approving], any activity which does not conform to [a state] implementation plan.” 42 U. S. C. § 7506(c)(1). The definition of “conformity” includes restrictions on, for instance, “increasing] the frequency or severity of any existing violation of any standard in any area,” or “delaying] timely attainment of any standard... in any area.” § 7506(c)(1)(B). These safeguards prevent the Federal Government from interfering with the States’ abilities to comply with the CAA’s requirements.
3
FMCSA, an agency within the Department of Transportation (DOT), is responsible for motor carrier safety and registration. See 49 U. S. C. § 113(f). FMCSA has a variety of statutory mandates, including “ensuring]” safety, §31136, establishing minimum levels of financial responsibility for motor carriers, §31139, and prescribing federal standards for safety inspections of commercial motor vehicles, §31142. Importantly, FMCSA has only limited discretion regarding motor vehicle carrier registration: It must grant registration to all domestic or foreign motor carriers that are “willing and able to comply with” the applicable safety, fitness, and financial-responsibility requirements. § 13902(a)(1). FMCSA has no statutory authority to impose or enforce emissions controls or to establish environmental requirements unrelated to motor carrier safety.
B
We now turn to the factual and procedural background of this case. Before 1982, motor carriers domiciled in Canada and Mexico could obtain certification to operate within the United States from the Interstate Commerce Commission (ICC). In 1982, Congress, concerned about discriminatory treatment of United States motor carriers in Mexico and Canada, enacted a 2-year moratorium on new grants of operating authority. Congress authorized the President to extend the moratorium beyond the 2-year period if Canada or Mexico continued to interfere with United States motor carriers, and also authorized the President to lift or modify the moratorium if he determined that doing so was in the national interest. 49 U. S. C. § 10922(0 (1982 ed.). Although the moratorium on Canadian motor carriers was quickly lifted, the moratorium on Mexican motor carriers remained, and was extended by the President.
In December 1992, the leaders of Mexico, Canada, and the United States signed the North American Free Trade Agreement (NAFTA), 32 I. L. M. 605 (1993). As part of NAFTA, the United States agreed to phase out the moratorium and permit Mexican motor carriers to obtain operating authority within the United States’ interior by January 2000. On NAFTA’s effective date (January 1, 1994), the President began to lift the trade moratorium by allowing the licensing of Mexican carriers to provide some bus services in the United States. The President, however, did not continue to ease the moratorium on the timetable specified by NAFTA, as concerns about the adequacy of Mexico’s regulation of motor carrier safety remained.
The Government of Mexico challenged the United States’ implementation of NAFTA’s motor carrier provisions under NAFTA’s dispute-resolution process, and in February 2001, an international arbitration panel determined that the United States’ “blanket refusal” of Mexican motor carrier applications breached the United States’ obligations under NAFTA. App. 279, ¶295. Shortly thereafter, the President made clear his intention to lift the moratorium on Mexican motor carrier certification following the preparation of new regulations governing grants of operating authority to Mexican motor carriers.
In May 2001, FMCSA published for comment proposed rules concerning safety regulation of Mexican motor carriers. One rule (the Application Rule) addressed the establishment of a new application form for Mexican motor carriers that seek authorization to operate within the United States. Another rule (the Safety Monitoring Rule) addressed the establishment of a safety-inspection regime for all Mexican motor carriers that would receive operating authority under the Application Rule.
In December 2001, Congress enacted the Department of Transportation and Related Agencies Appropriations Act, 2002, 115 Stat. 833. Section 350 of this Act, id., at 864, provided that no funds appropriated under the Act could be obligated or expended to review or to process any application by a Mexican motor carrier for authority to operate in the interior of the United States until FMCSA implemented specific application and safety-monitoring requirements for Mexican carriers. Some of these requirements went beyond those proposed by FMCSA in the Application and Safety Monitoring Rules. Congress extended the §350 conditions to appropriations for Fiscal Years 2003 and 2004.
In January 2002, acting pursuant to NEPA’s mandates, FMCSA issued a programmatic EA for the proposed Application and Safety Monitoring Rules. FMCSA’s EA evaluated, the environmental impact associated with three separate scenarios: where the President did not lift the moratorium; where the President did but where (contrary to what was legally possible) FMCSA did not issue any new regulations; and the Proposed Action Alternative, where the President would modify the moratorium and where FMCSA would adopt the proposed regulations. The EA considered the environmental impact in the categories of traffic and congestion, public safety and health, air quality, noise, socioeconomic factors, and environmental justice. Vital to the EA’s analysis, however, was the assumption that there would be no change in trade volume between the United States and Mexico due to the issuance of the regulations. FMCSA did note that § 350’s restrictions made it impossible for Mexican motor carriers to operate in the interior of the United States before FMCSA’s issuance of the regulations. But, FMCSA determined that “this and any other associated effects in trade characteristics would be the result of the modification of the moratorium” by the President, not a result of FMCSA’s implementation of the proposed safety regulations. App. 60. Because FMCSA concluded that the entry of the Mexican trucks was not an “effect” of its regulations, it did not consider any environmental impact that might be caused by the increased presence of Mexican trucks within the United States.
The particular environmental effects on which the EA focused, then, were those likely to arise from the increase in the number of roadside inspections of Mexican trucks and buses due to the proposed regulations. The EA concluded that these effects (such as a slight increase in emissions, noise from the trucks, and possible danger to passing motorists) were minor and could be addressed and avoided in the inspections process itself. The EA also noted that the increase of inspection-related emissions would be at least partially offset by the fact that the safety requirements would reduce the number of Mexican trucks operating in the United States. Due to these calculations, the EA concluded that the issuance of the proposed regulations would have no significant impact on the environment, and hence FMCSA, on the same day as it released the EA, issued a FONSI.
On March 19, 2002, FMCSA issued the two interim rules, delaying their effective date until May 3, 2002, to allow public comment on provisions that FMCSA added to satisfy the requirements of §350. In the regulatory preambles, FMCSA relied on its EA and its FONSI to demonstrate compliance with NEPA. FMCSA also addressed the CAA in the preambles, determining that it did not need to perform a “conformity review” of the proposed regulations under 42 U. S. C. § 7506(c)(1) because the increase in emissions from these regulations would fall below the Environmental Protection Agency’s (EPA) threshold levels needed to trigger such a review.
In November 2002, the President lifted the moratorium on qualified Mexican motor carriers. Before this action, however, respondents filed petitions for judicial review of the Application and Safety Monitoring Rules, arguing that the rules were promulgated in violation of NEPA and the CAA. The Court of Appeals agreed with respondents, granted the petitions, and set aside the rules. 316 F. 3d 1002 (CA9 2003).
The Court of Appeals concluded that the EA was deficient because it failed to give adequate consideration to the overall environmental impact of lifting the moratorium on the cross-border operation of Mexican motor carriers. According to the Court of Appeals, FMCSA was required to consider the environmental effects of the entry of Mexican trucks because “the President’s rescission of the moratorium was ‘reasonably foreseeable’ at the time the EA was prepared and the decision not to prepare an EIS was made.” Id., at 1022 (quoting 40 CFR §§1508.7, 1508.8(b) (2003)). Due to this perceived deficiency, the Court of Appeals remanded the case for preparation of a full EIS.
The Court of Appeals also directed FMCSA to prepare a full CAA conformity determination for the challenged regulations. It concluded that FMCSA’s determination that emissions attributable to the challenged rules would be below the threshold levels was not reliable because the agency’s CAA determination reflected the “illusory distinction between the effects of the regulations themselves and the effects of the presidential rescission of the moratorium on Mexican truck entry.” 316 F. 3d, at 1030.
We granted certiorari, 540 U. S. 1088 (2003), and now reverse.
II
An agency’s decision not to prepare an EIS can be set aside only upon a showing that it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U. S. C. § 706(2)(A). See also Marsh v. Oregon Natural Resources Council, 490 U. S. 360, 375-376 (1989); Kleppe v. Sierra Club, 427 U. S. 390, 412 (1976). Here, FMCSA based its FONSI upon the analysis contained within its EA; respondents argue that the issuance of the FONSI was arbitrary and capricious because the EA’s analysis was flawed. In particular, respondents criticize the EA’s failure to take into account the various environmental effects caused by the increase in cross-border operations of Mexican motor carriers.
Under NEPA, an agency is required to provide an EIS only if it will be undertaking a “major Federal actio[n],” which “significantly affect[s] the quality of the human environment.” 42 U. S. C. §4332(2)(C). Under applicable CEQ regulations, “[mjajor Federal action” is defined to “includ[ej actions with effects that may be major and which are potentially subject to Federal control and responsibility.” 40 CFR §1508.18 (2008). “Effects” is defined to “include: (a) Direct effects, which are caused by the action and occur at the same time and place,” and “(b) Indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable.” §1508.8. Thus, the relevant question is whether the increase in cross-border operations of Mexican motor carriers, with the correlative release of emissions by Mexican trucks, is an “effect” of FMCSA’s issuance of the Application and Safety Monitoring Rules; if not, FMCSA’s failure to address these effects in its EA did not violate NEPA, ánd so FMCSA’s issuance of a FONSI cannot be arbitrary and capricious.
A
To answer this question, we begin by explaining what this case does not involve. What is not properly before us, despite respondents’ argument to the contrary, see Brief for Respondents 38-41, is any challenge to the EA due to its failure properly to consider possible alternatives to the proposed action (i. e., the issuance of the challenged rules) that would mitigate the environmental impact of the authorization of cross-border operations by Mexican motor carriers. Persons challenging an agency’s compliance with -NEPA must “structure their participation so that it... alerts the agency to the [parties’] position and contentions,” in order to allow the agency to give the issue meaningful consideration. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U. S. 519, 553 (1978). None of the respondents identified in their comments any rulemaking alternatives beyond those evaluated in the EA, and none urged FMCSA to consider alternatives. Because respondents did not raise these particular objections to the EA, FMCSA was not given the opportunity to examine any proposed alternatives to determine if they were reasonably available. Respondents have therefore forfeited any objeetion to the EA on the ground that it failed adequately to discuss potential alternatives to the proposed action.
Admittedly, the agency bears the primary responsibility to ensure that it complies with NEPA, see ibid., and an EA’s or an EIS’ flaws might be so obvious that there is no need for a commentator to point them out specifically in order to preserve its ability to challenge a proposed action. But that situation is not before us. With respect to FMCSA’s ability to mitigate, respondents can argue only that FMCSA could regulate emissions from Mexican trucks indirectly, through making the safety-registration process more onerous or by removing older, more polluting trucks through more effective enforcement of motor carrier safety standards. But respondents fail to identify any evidence that shows that any effect from these possible actions would be significant, or even noticeable, for air-quality purposes. The connection between enforcement of motor carrier safety and the environmental harms alleged in this case is also tenuous at best. Nor is it clear that FMCSA could, consistent with its limited statutory mandates, reasonably impose on Mexican carriers standards beyond those already required in its proposed regulations.
B
With this point aside, respondents have only one complaint with respect to the EA: It did not take into account the environmental effects of increased cross-border operations of Mexican motor carriers. Respondents’ argument that FMCSA was required to consider these effects is simple. Under § 350, FMCSA is barred from expending any funds to process or review any applications by Mexican motor carriers until FMCSA implemented a variety of specific application and safety-monitoring requirements for Mexican carriers. This expenditure bar makes it impossible for any Mexican motor carrier to receive authorization to operate within the United States until FMCSA issued the regulations challenged here. The promulgation, of the regulations, the argument goes, would “caus[e]” the entry of Mexican trucks (and hence also cause any emissions such trucks would produce), and the entry of the trucks is “reasonably foreseeable.” 40 CFR § 1508.8 (2003). Thus, the argument concludes, under the relevant CEQ regulations, FMCSA must take these emissions into account in its E A when evaluating whether to produce an EIS.
Respondents’ argument, however, overlooks a critical feature of this case: FMCSA has no ability to countermand the President’s lifting of the moratorium or otherwise categorically to exclude Mexican motor carriers from operating within the United States. To be sure, §350 did restrict the ability of FMCSA to authorize cross-border operations of Mexican motor carriers, but Congress did not otherwise modify FMCSA’s statutory mandates. In particular, FMCSA remains subject to the mandate of 49 U. S. C. § 13902(a)(1), that FMCSA “shall register a person to provide transportation... as a motor carrier if [it] finds that the person is willing and able to comply with” the safety and financial responsibility requirements established by DOT. (Emphasis added.) Under FMCSA’s entirely reasonable reading of this provision, it must certify any motor carrier that can show that it is willing and able to comply with the various substantive requirements for safety and financial responsibility contained in DOT regulations; only the moratorium prevented it from doing so for Mexican motor carriers before 2001. App. 51-55. Thus, upon the lifting of the moratorium, if FMCSA refused to authorize a Mexican motor carrier for cross-border services, where the Mexican motor carrier was willing and able to comply with the various substantive safety and financial responsibilities rules, it would violate § 13902(a)(1).
If it were truly impossible for FMCSA to comply with both § 350 and § 13902(a)(1), then we would be presented with an irreconcilable conflict of laws. As the later enacted provision, § 350 would quite possibly win out. See Posadas v. Na tional City Bank, 296 U. S. 497, 503 (1936). But FMCSA ocan easily satisfy both mandates: It can issue the application and safety inspection rules required by § 350, and start processing applications by Mexican motor carriers and authorize those that satisfy § 13902(a)(l)’s conditions. Without a conflict, then, FMCSA must comply with all of its statutory mandates.
Respondents must rest, then, on a particularly unyielding variation of “but for” causation, where an agency’s action is considered a cause of an environmental effect even when the agency has no authority to prevent the effect. However, a “but for” causal relationship is insufficient to make an agency responsible for a particular effect under NEPA and the relevant regulations. As this Court held in Metropolitan Edison Co. v. People Against Nuclear Energy, 460 U. S. 766, 774 (1983), NEPA requires “a reasonably close causal relationship” between the environmental effect and the alleged cause. The Court analogized this requirement to the “familiar doctrine of proximate cause from tort law.” Ibid. In particular, “courts must look to the underlying policies or legislative intent in order to draw a manageable line between those causal changes that may make an actor responsible for an effect and those that do not.” Id., at 774, n. 7. See also W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 264, 274-275 (5th ed. 1984) (proximate cause analysis turns on policy considerations and considerations of the “legal responsibility” of actors).
Also, inherent in NEPA and its implementing regulations is a “‘rule of reason,’” which ensures that agencies determine whether and to what extent to prepare an EIS based on the usefulness of any new potential information to the decisionmaking process. See Marsh, 490 U. S., at 373-374. Where the preparation of an EIS would serve “no purpose” in light of NEPA’s regulatory scheme as a whole, no rule of reason worthy of that title would require an agency to prepare an EIS. See Aberdeen & Rockfish R. Co. v. Students Challenging Regulatory Agency Procedures (SCRAP), 422 U. S. 289, 325 (1975); see also 40 CFR §§ 1500.1(b)-(e) (2003).-
In these circumstances, the underlying policies behind NEPA and Congress’ intent, as informed by the “rule of reason,” make clear that the causal connection between FMCSA’s issuance of the proposed regulations and the entry of the Mexican trucks is insufficient to make FMCSA responsible under NEPA to consider the environmental effects of the entry. The NEPA EIS requirement serves two purposes. First, “[i]t ensures that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts.” Robertson, 490 U. S., at 349. Second, it “guarantees that the relevant information will be made available to the larger audience that may also play a role in both the decisionmaking process and the implementation of that decision.” Ibid. Requiring FMCSA to consider the environmental effects of the entry of Mexican trucks would fulfill neither of these statutory purposes. Since FMCSA has no ability categorically to prevent the cross-border operations of Mexican motor carriers, the environmental impact of the cross-border operations would have no effect on FMCSA’s decisionmaking — FMCSA simply lacks the power to act on whatever information might be contained in the EIS.
Similarly, the informational purpose is not served. The “informational role” of an EIS is to “giv[e] the public the assurance that the agency ‘has indeed considered environmental concerns in its decisionmaking process,’ Baltimore Gas & Electric Co. [v. Natural Resources Defense Council, Inc., 462 U. S. 87, 97 (1983)], and, perhaps more significantly, provid[e] a springboard for public comment” in the agency decisionmaking process itself, ibid. The purpose here is to ensure that the “larger audience,” ibid., can provide input as necessary to the agency making the relevant decisions. See 40 CFR § 1500.1(c) (2003) (“NEPA’s purpose is not to generate paperwork — even excellent paperwork — but to foster excellent action. The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment”); § 1502.1 (“The primary purpose of an environmental impact statement is to serve as an action-forcing device to insure that the policies and goals defined in the Act are infused into the ongoing programs and actions of the Federal Government”). But here, the “larger audience” can have no impact on FMCSA’s decisionmaking, since, as just noted, FMCSA simply could not act on whatever input this “larger audience” could provide.
It would not, therefore, satisfy NEPA’s “rule of reason” to require an agency to prepare a full EIS due to the environmental impact of an action it could not refuse to perform. Put another way, the legally relevant cause of the entry of the Mexican trucks is not FMCSA’s action, but instead the actions of the President in lifting the moratorium and those of Congress in granting the President this authority while simultaneously limiting FMCSA’s discretion.
Consideration of the CEQ’s “cumulative impact” regulation does not change this analysis. An agency is required to evaluate the “[cjumulative impact” of its action, which is defined as “the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions.” § 1508.7. The “cumulative impact” regulation required FMCSA to consider the “incremental impact” of the safety rules themselves, in the context of the President’s lifting of the moratorium and other relevant circumstances. But this is exactly what FMCSA did in its EA. FMCSA appropriately and reasonably examined the incremental impact of its safety rules assuming the President’s modification of the moratorium (and, hence, assuming the increase in cross-border operations of Mexican motor carriers). The “cumulative impact” regulation does not require FMCSA to treat the lifting of the moratorium itself, of consequences from the lifting of the moratorium, as an effect of its promulgation of its Application and Safety Monitoring Rules.
C
We hold that where an agency has no ability to prevent a certain effect due to its limited statutory authority over the relevant actions, the agency cannot be considered a legally relevant “cause” of the effect. Hence, under NEPA and the implementing CEQ regulations, the agency need not consider these effects in its EA when determining whether its action is a “major Federal action.” Because the President, not FMCSA, could authorize (or not authorize) cross-border operations from Mexican motor carriers, and because FMCSA has no discretion to prevent the entry of Mexican trucks, its EA did not need to consider the environmental effects arising from the entry.
III
Under the CAA, a federal “department, agency, or instrumentality” may not, generally, “engage in, support in any way or provide financial assistance for, license or permit, or approve, any activity” that violates an applicable state air-quality implementation plan. 42 U. S. C. § 7506(c)(1); 40 CFR § 93.150(a) (2003). Federal agencies must, in many circumstances, undertake a conformity determination with respect to a proposed action, to ensure that the action is consistent with § 7506(c)(1). See 40 CFR §§ 93.150(b), 93.153(a)-(b). However, an agency is exempt from the general conformity determination under the CAA if its action would not cause new emissions to exceed certain threshold emission rates set forth in § 93.153(b). FMCSA determined that its proposed regulations would not cause emissions to exceed the relevant threshold amounts and therefore concluded that the issuance of its regulations would comply with the CAA. App. to Pet. for Cert. 65a-66a, 155a. Critical to its calculations was its consideration of only those emissions that would occur from the increased roadside inspections of Mexican trucks; like its NEPA analysis, FMCSA’s CAA analysis did not consider any emissions attributable to the increased presence of Mexican trucks within the United States.
The EPA’s rules provide that “a conformity determination is required for each pollutant where the total of direct and indirect emissions in a nonattainment or maintenance area caused by a Federal action would equal or exceed” the threshold levels established by the EPA. 40 CFR § 93.153(b) (2003). “Direct emissions” are defined as those covered emissions “that are caused or initiated by the Federal action and occur at the same time and place as the action.” §93.152. The term “[indirect emissions” means covered emissions that
“(1) Are caused by the Federal action, but may occur later in time and/or may be further removed in distance from the action itself but are still reasonably foreseeable; and
“(2) The Federal agency can practicably control and will maintain control over due to a continuing program responsibility of the Federal agency.” Ibid.
Unlike the regulations implementing NEPA, the EPA’s CAA regulations have
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:
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sc_issuearea
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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 issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
ORTWEIN et al. v. SCHWAB et al.
No. 72-5431.
Decided March 5, 1973
Per Curiam.
Appellants contend that Oregon’s $25 appellate court filing fee, as applied in this case, violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment and, also, the First Amendment as incorporated into the Fourteenth. The Supreme Court of Oregon decided otherwise. 262 Ore. 375, 498 P. 2d 757 (1972). We affirm that decision for reasons we found persuasive in United States v. Kras, 409 U. S. 434 (1973).
Appellant Ortwein (who also was receiving social security and an urban renewal allowance) sustained a reduction of approximately $39 per month in his Oregon old-age assistance when his county welfare agency determined that he shared shelter and expenses with another person in a manner that relieved him of some of the costs upon which his original award had been based. Ortwein appealed to the Oregon Public Welfare Division. The Division conducted a hearing and upheld the county agency’s decision.
Appellant Faubion claimed that certain expenses related to work training under a federal program should have been deducted in calculating her income. Most of these deductions were disallowed, after hearing, by the Public Welfare Division. The disallowance resulted in smaller welfare payments to Faubion over a five-month period.
Judicial review of these agency decisions is authorized under state law. Ore. Rev. Stat. § 183.480 (1971). In cases that are contested, as these were, jurisdiction for judicial review is conferred upon the Oregon Court of Appeals. § 183.480 (2). All appellants in civil cases in Oregon pay a $25 filing fee in appellate courts. §§ 21.010 and 21.040 (1971). Each of the present appellants alleged that he was an indigent unable to pay the filing fee; each moved to proceed in forma pauperis in the Oregon Court of Appeals. The motions were denied without opinions. Appellants then petitioned the Supreme Court of Oregon for an alternative writ of mandamus ordering the Court of Appeals to accept appellants’ cases without payment of fees. The Supreme Court of Oregon requested supplemental briefs and then issued its opinion denying the petition for mandamus. 262 Ore. 375, 498 P. 2d 757 (1972). From this denial the present appeal is taken.
I
Relying on this Court’s opinion in Boddie v. Connecticut, 401 U. S. 371 (1971), and on the remand-for-reconsideration order in Frederick v. Schwartz, 402 U. S. 937 (1971), appellants contend that the Oregon appellate filing fee, when applied to indigents seeking to appeal an adverse welfare decision, violates the Due Process Clause of the Fourteenth Amendment. In United States v. Kras, 409 U. S. 434 (1973), this Court upheld statutorily imposed bankruptcy filing fees against a constitutional challenge based on Boddie. We emphasized the special nature of the marital relationship and its concomitant associational interests, and noted that they were not affected in that case and that the objective sought by appellant Kras could be obtained through alternative means that did not require a fee. Boddie, of course, was not concerned with post-hearing review. We now conclude that Kras, rather than Boddie, governs the present appeal, and we emphasize that Frederick was remanded, and not summarily reversed.
A. In Kras, we observed that one’s interest in a bankruptcy discharge “does not rise to the same constitutional level” as one’s inability to dissolve his marriage except through the courts. 409 U. S., at 445. In this case, appellants seek increased welfare payments. This interest, like that of Kras, has far less constitutional significance than the interest of the Boddie appellants. Compare Dandridge v. Williams, 397 U. S. 471 (1970), and Richardson v. Belcher, 404 U. S. 78 (1971), with Loving v. Virginia, 388 U. S. 1 (1967); Skinner v. Oklahoma, 316 U. S. 535 (1942); Griswold v. Connecticut, 381 U. S. 479 (1965), and Eisenstadt v. Baird, 405 U. S. 438 (1972). Each of the present appellants has received an agency hearing at which it was determined that the minimum level of payments authorized by law was being provided. As in Kras, we see “no fundamental interest that is gained or lost depending on the availability” of the relief sought by appellants. 409 U. S., at 445.
B. In Kras, the Court also stressed the existence of alternatives, not conditioned on the payment of the fees, to the judicial remedy. Id., at 446. The Court has held that procedural due process requires that a welfare recipient be given a pretermination evidentiary hearing. Goldberg v. Kelly, 397 U. S. 254, 264, 266-271 (1970). These appellants have had hearings. The hearings provide a procedure, not conditioned on payment of any fee, through which appellants have been able to seek redress. This Court has long recognized that, even in criminal cases, due process does not require a State to provide an appellate system. McKane v. Durston, 153 U. S. 684, 687 (1894); see Griffin v. Illinois, 351 U. S. 12, 18 (1956); District of Columbia v. Clawans, 300 U. S. 617, 627 (1937); Lindsey v. Normet, 405 U. S. 56, 77 (1972). Under the facts of this case, appellants were not denied due process.
II
Appellants urge that the filing fee violates the Equal Protection Clause by unconstitutionally discriminating against the poor. As in Kras, this litigation, which deals with welfare payments, “is in the area of economics and social welfare.” 409 U. S., at 446; see Dandridge v. Williams, 397 U. S., at 485-486. No suspect classification, such as race, nationality, or alienage, is present. See Graham v. Richardson, 403 U. S. 365, 372 (1971). The applicable standard is that of rational justification. United States v. Kras, supra.
The purpose of the filing fee, as with the bankruptcy fees in Kras, is apparent. The Oregon court system incurs operating costs, and the fee produces some small revenue to assist in offsetting those expenses. Cf. Ore. Rev. Stat. § 21.590 (1971). Appellants do not contend that the fee is disproportionate or that it is not an effective means to accomplish the State’s goal. The requirement of rationality is met.
III
Relying on Lindsey v. Normet, supra, appellants contend that the fee is not required of certain classes of litigants, and that an appeal is thus “capriciously and arbitrarily denied” to other appellants, such as themselves, also in violation of the Equal Protection Clause. See 405 U. S., at 77. They assert that criminal appeals, habeas corpus petitions from state institutions or civil commitment proceedings, and appeals from terminations of parental rights may be filed in forma pauperis in the Oregon Court of Appeals. Jurisdictional Statement 23. We are not told just why these filings are permitted, but the opinion of the Supreme Court of Oregon makes it clear that in forma pauperis appeals are allowed only if supervening law requires a right to a free appeal. 262 Ore., at 384, 498 P. 2d, at 761-762.
If the Oregon courts have interpreted the applicable law to give special rights in the criminal area, in civil cases that result in loss of liberty, and in cases terminating parental rights, we cannot say that this categorization is capricious or arbitrary.
A ,7 Affirmed.
The Division found that the county agency “acted within its discretion by determining that the claimant’s living arrangement represented a living situation in which shelter and expenses are shared.” The agency’s order explained that that reduction in the room and board allowance was proper because “[t]he eligibility of recipients who share shelter with non-recipients, and do not pay for room and board, shall be determined on a share/fraction basis at [Public Welfare Division] standards.” Record 9. In his petition for review, Ortwein contended that the order was not supported by “reliable, probative and substantial evidence in the whole record.”
Faubion received an incentive training allowance of $120 per month for approximately five months from a program under the Manpower Development and Training Act of 1962, as amended, 76 Stat. 23, 42 U. S. C. §§ 2571-2574. Record 12. Faubion also was receiving over $210 per month through a state-administered AFDC program. Jurisdictional Statement 4; Record 11. States, in making their income calculations under AFDC, deduct from gross income all expenses “reasonably attributable” to the earning of the income. 42 U. S. C. §602 (a) (7); 45 CFR § 233.20 (a) (3) (iv) (Sept. 1972). Faubion claimed that she had work-training expenses of $20 per month for essential clothing and grooming, of $20 per month for lunches on the job, of $30 per month for convenience foods for family use made necessary because of her job, of $5 per month for oil, tuneups and repairs, and of $5 per month for miscellaneous school supplies. Record 13. Although the Division allowed some deductions, it determined that the remaining expenses were not “reasonably attributable” to the training program. Record 12. On appeal, Faubion sought to challenge this finding.
See also Huffman v. Boersen, 406 U. S. 337 (1972).
These evidentiary hearings, of course, must meet the minimal requirements of due process. Goldberg v. Kelly, 397 U. S. 254, 266-271 (1970). Appellants have alleged that the hearings were deficient in several ways, Jurisdictional Statement 9-10, but neither the record nor the opinion of the Oregon court provides support for these contentions.
Appellants also claim a violation of their First Amendment right to petition for redress. Our discussion of the Due Process Clause, however, demonstrates that appellants’ rights under the First Amendment have been fully satisfied.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
|
songer_casetyp1_7-2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
Anna DRESSLER, Legatee Mortgagee of The Estate of Morris Dressler, Libelant-Appellee, v. The MV SANDPIPER, its boilers, engines, tackle, apparel, furniture, etc., Joseph Fanale, and against all persons intervening by their interest therein, Respondents-Appellants.
No. 333, Docket 28499.
United States Court of Appeals Second Circuit.
Argued March 9, 1964.
Decided April 9, 1964.
Sidney Feldshuh, of Feldshuh & Frank, New York City, for libelant-ap-pellee.
Donald S. Sherwood, New York City (Kenneth Heller, New York City, on the brief), for respondents-appellants.
Before SMITH, KAUFMAN and MARSHALL, Circuit Judges.
KAUFMAN, Circuit Judge:
This action was brought in Admiralty to foreclose a preferred ship mortgage upon the MV Sandpiper, a vessel owned by respondent Fanale. Although the libel was returnable on June 19, 1963, the respondent failed to file an answer by that date, and on July 18, the libelant moved for a summary judgment, pursuant to Admiralty Rule 58. On July 30, one day before the return date of libel-ant’s motion, respondent’s answer to the libel was belatedly filed, alleging, inter alia, that the mortgage and the note which it secured were usurious. On this appeal, respondent insists that these unsupported and conclusory allegations of his untimely answer to the libel were sufficient to create a genuine issue of fact, and hence to render erroneous the District Court’s award of summary judgment.
As alleged in the libel, the note and mortgage in the principal amount of $21,000 were executed by Fanale to one Morris Dressier in June of 1962, and were duly recorded. In September of that year, Dressier died, and the libelant became the owner of all of his real and personal property — presumably including the claim against Fanale — except for certain specific bequests unrelated to the present action. Three months thereafter, the first installment of principal and interest, amounting to some $5,565, became due under the mortgage note. Although demand was duly made for this amount, the respondent paid only $3,000, and, pursuant to an acceleration clause contained in both the note and mortgage, the libelant accordingly declared the entire unpaid balance on the note to be due and owing. When the respondent failed to satisfy this demand, the present action was commenced to foreclose the mortgage.
When finally filed, the respondent’s answer fully admitted execution and delivery of both the note and mortgage, and further conceded that only $3,000 had been paid. In addition and by way of affirmative defense, however, the respondent alleged that the libelant had granted a temporary “moratorium” upon further payments when the $3,000 sum was tendered, and that Fanale had thus been “entrapped” into not complying further with the terms of the note. Moreover, the answer alleged that “contrary to the terms of the mortgage note, Respondent did not receive the sum of $21,000 * * * prior to January 1, 1962, but up and until and including January 1, 1962, respondent only received the approximate sum of $17,500” from the libelant. Since the note called for 6% interest to run from January 1, 1962, on a $21,000 principal amount, Fanale thus contended that the note and mortgage were usurious and hence invalid.
On the motion for summary judgment libelant submitted additional evidence to the District Court indicating that the note and mortgage had been given in substitution for two notes, totalling $21,000, which were executed by Fanale to Dressier in April of 1962. It was also revealed that while the motion for summary judgment was pending but before the answer had been filed, the respondent had tendered checks of $2,965 and $365 in partial payment of his indebtedness, but that both had been rejected by the libel-ant. Respondent’s attorney . submitted only his own affidavit, which contained little more than a summary of the allegations set forth in the answer.
The District Judge refused to consider this affidavit and while his decision in this respect has not been challenged on appeal, we find it plainly correct. In the words of Admiralty Rule 58(e), opposing^ affidavits must be made “on personal knowledge,” and must “set forth such facts as would be admissible in evidence.” It is clear that the affidavit submitted here, concededly based on a “reading of Respondent’s answer,” does not measure up to these requirements.
The District Court quickly disposed of the respondent’s claim of an oral “moratorium” in the answer to the libel, on grounds which are equally fatal to Fanale’s similar contentions on appeal. Thus, it was noted that New York will sustain a modification of a pre-existing obligation only if written or supported by consideration, and that the respondent had failed to allege either of these prerequisites. See N.Y. Personal Property Law McKinney’s Consol.Laws, c. 41, 33 (2).
While no similar legal barrier stood in the way of the claim of usury, it was dismissed with equivalent dispatch. After noting that “no explanation of [respondent’s] default in answering was supplied,” the Court found the answer, “treated as an affidavit,” to be “too general to be useful on the present occasion.” As a result, the Court concluded that respondent’s “assertions [of usury] scarcely raise the defense on such an occasion as this,” and accordingly granted the libelant’s motion for summary judgment.
On appeal, Fanale insists that his answer and its contentions of usury raised a “substantial issue” of fact “which can be resolved only upon a * * * hearing.” The libelant, on the other hand, maintains that the District Court was entirely justified in looking beyond the bare pleadings in an effort to determine whether there was a “genuine issue of fact to be tried.” We are squarely faced, therefore, with significant questions as to the proper role of the District Court in motions for summary relief.
In resolving such issues, we are by no means confined to our experience as a Court of Admiralty. For as adopted in 1961, Admiralty Rule 58 is a carbon copy of Rule 56, F.R.Civ.P., as it existed prior to the amendments made effective in July of 1963. But if the long history of practice under the Civil Rule thus provides a convenient starting point, the teachings of that history have often reflected sharply divergent judicial attitudes towards the desirability of the summary judgment procedure. Thus, in apparent accord with the decision below, many courts and commentators have insisted that the device of summary judgment was to have a far broader range than the old, common-law demurrer, and that the availability of affidavits, depositions, admissions and the like represented an acknowledgment that mere formal denials and allegations, while sufficient to stand as pleadings, were to be pierced upon Rule 56 motions and could not forestall the award of summary relief. See, e. g., Engl v. Aetna Life Ins. Co., 139 F.2d 469 (2d Cir. 1943); Thomas v. Mutual Benefit Health & Accident Ass’n, 220 F.2d 17 (2d Cir. 1955); City of Zephyrhills, Fla. v. Crummer & Co., 237 F.2d 338 (5th Cir. 1956); Duarte v. Bank of Hawaii, 287 F.2d 51 (9th Cir.), cert. denied, 366 U.S. 972, 81 S.Ct. 1938, 6 L.Ed.2d 1261 (1961) ; Community of Roquefort v. William Faehndrich, Inc., 303 F.2d 494 (2d Cir. 1962); Wagoner v. Mountain Savings & Loan Ass’n, 311 F.2d 403 (10th Cir. 1962) ; Wright, Rule 56(e): A Case Study on the Need for Amending the Federal Rules, 69 Harv.L. Rev. 839 (1956); Clark, “Clarifying” Amendments to the Federal Rules?, 14 Ohio St.L.J. 241, 249-250 (1953).
At the same time, however, a large number of courts, often expressing a fear of “trial by affidavit,” displayed a far more restrictive attitude towards motions for summary judgment. In this Circuit, for example, numerous decisions seemed to reflect a great reluctance to find that no genuine issue of fact remained for trial, and we have hence reversed and remanded a long line of cases in which summary judgment had been awarded below. See, e. g., Arnstein v. Porter, 154 F.2d 464 (2d Cir. 1946); Colby v. Klune, 178 F.2d 872 (2d Cir. 1949) ; Bromberg v. Moul, 275 F.2d 574 (2d Cir. 1960) ; Kern v. Hettinger, 303 F.2d 333 (2d Cir. 1962); cf. Empire Electronics Co. v. United States, 311 F.2d 175 (2d Cir. 1962). Even more vigorously, the Court of Appeals for the Third Circuit long espoused a narrow view of the trial court’s role in motions for summary relief. Repeatedly refusing to pierce the allegations of the pleadings, that Court was firm in its insistence that “[a]n affidavit cannot be treated, for purposes of the motion to dismiss, as proof contradictory to well-pleaded facts in the complaint.” Frederick Hart & Co. v. Recordgraph Corp., 169 F.2d 580, 581 (3rd Cir. 1948).
As explained by the Advisory Committee, the recent amendments to Rule 56 were designed to overcome just such cases, which, in the words of the Committee, have “impaired the utility of the summary judgment device.” “The very mission of the summary judgment procedure,” the Committee explained, “is to’ pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. The Third Circuit doctrine, which permits the pleadings themselves to stand in the way of granting an otherwise justified summary judgment, is incompatible with the basic purpose of the rule.” United States Code Annotated, Nov., 1963, pamphlet, pp. 55-56. So that this “incompatible” result might be avoided, Rule 56(e) was specifically amended to provide that “[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.”
If the present case were to be decided under Civil Rule 56 as amended, it would thus seem clear that respondent’s vague and eonclusory allegations of usury would not be sufficient to forestall the award of summary judgment. The highly general assertions of Fanale’s answer to the libel, buttressed by no specific facts or evidentiary data, are hardly the sort of concrete particulars which the amendments sought to require. See Scolnick v. Lefkowitz, 329 F.2d 716 (2d Cir. 1964) ; Kaplan, Amendments of the Federal Rules of Civil Procedure, 1961-1963 (II), 77 Harv.L.Rev. 801, 825 (1964). And the fact that Admiralty Rule 58 was not amended to conform to its Civil counterpart would not seem to preclude an identical result here. Indeed, the comments of the Committee and its reporter, see Kaplan, supra, would seem to indicate that the amendments to Rule 56 were merely intended more explicitly to state what had always been the Rule’s underlying purpose, rather than to introduce any startlingly novel innovations. We should add, moreover, that we find it difficult to believe that the failure similarly to amend the Admiralty Rule is attributable to any grand design; once it has been decided that a summary judgment procedure identical to that provided by Civil Rule 56 should be incorporated into the Rules of Admiralty, there seems no reason why declaratory amendments such as these shouldn’t be equally applicable here. Cf. Weyerhaeuser Co. v. Gershman, 324 F.2d 163 (2d Cir. 1963).
Furthermore, even if the questions of the recent amendments to Civil Rule 56 and their application to Admiralty Rule 58 are put aside, we find it clear that the circumstances present here would have warranted summary relief. Indeed, if this respondent were permitted to avoid summary judgment, Rule 58 and its attempt to screen out sham issues of fact would become devoid of practical significance, and would stand as but a meaningless monument to noble, if ineffectual, intentions. Litigants would be enabled to postpone the inevitable to another day — precisely what summary judgment was intended to avoid.
A brief recapitulation of the procedural history of this case vividly illustrates the lack of substance in respondent’s position. As we have indicated, the motion for summary judgment was filed only after Fanale had given no> indication whatsoever that an answer to the libel was forthcoming. The respondent has never bothered to offer reasons for this delay; as Judge Dooling observed, “no explanation of the default in answering was supplied and it stands unexcused.” After libelant moved for summary judgment, moreover, Fanale’s first thought was to tender payments on account of his indebtedness, and it was only after checks of $2,965 and $315 were rejected by the libelant, that the answer and its eonclusory allegations of usury were interposed — one day before the motion for summary judgment was returnable. In short, the” claim of usury had never been raised until libelant rejected respondent’s attempt to make partial payment and was not deterred from continuing to press his motion for summary relief. This fact alone would appear to warrant the District Court’s inclination to view the allegations with a somewhat jaundiced eye.
Finally, and most significantly, the District Court was entirely justified in its conclusion that the “answer, treated as an affidavit, is too general to be useful.” As we have noted, the claim of usury was based solely upon the fact that interest was to run upon a $21,000 obligation from January 1, 1962, and that respondent had alleged that he had only received approximately $17,500 “up until and including” that date. Not only are there no facts set forth in support of this claim (nor were there any in the so-called affidavit of the attorney) but the allegation itself seems so pregnant a negative as to have virtually given birth to its contradiction. Fanale has never claimed that he did not ultimately receive the full $21,000 specified in the note and mortgage, nor even that he did not receive this amount on January 2nd or 3rd; he has simply claimed that only $17,500 had been received “on the date of the commencement of the computation of interest,” January 1, 1962. And in light of the reluctance of New York courts to- invoke the harsh remedies prescribed for usurious obligations, we are by no means convinced that a provision calling for interest to run for a very brief period before the full amount of the loan is actually advanced would be invalidated as usurious. See, e. g., Lynde v. Staats, 1 N.Y.Leg.Obs. 89 (1842); Businessmen’s Mortgage & Credit Ass’n v. Dobjinsky, 135 Misc. 628, 238 N.Y.S. 158 (1928) ; cf. Hinman v. Brundage, Sup., 13 N.Y.S.2d 363 (1939); McAnsh v. Blauner, 222 App.Div. 381, 226 N.Y.S. 379 (1928); Bird v. Napodano, 108 Misc. 309, 177 N.Y.S. 541 (1919); Frank v. Davis, 53 Hun 636, 6 N.Y.S. 144 (1889), aff’d, 127 N.Y. 673, 28 N.E. 255 (1891).
In pointing out the weaknesses of respondent’s answer and the ambiguity of his claim of usury, we are by no means suggesting that we return to the days when a litigant would find himself out of court if he had failed to dot every “i,” and cross every “t.” The age when this sort of hyper-technical interpretation of pleadings would subordinate substance to form is mercifully long behind us. Nor are we saying that an issue which turns on credibility of witnesses should be decided by summary judgment rather than on a trial. But the fact that the answer here lends itself to any number of interpretations, none of which rises to evidence sufficient to contradict libelant’s claim and affidavit, and the note and mortgage themselves, strikingly illustrates its inadequacy as a defense to a motion for summary judgment. Indeed, it is precisely because vague allegations such as the respondent’s furnish virtually no assistance to a court seeking to determine whether a “genuine” issue of fact remains for trial that Admiralty Rule 58 requires that affidavits “set forth such facts as would be admissible in evidence,” rather than the ambiguous and conclusory allegations commonly contained in the pleadings. Only in this way may the underlying objective of the summary judgment procedure — “to discover whether one side has no real support for its version of the facts” — be satisfied. See Community of Roquefort v. William Faehndrich, Inc., 303 F.2d 494, 498 (2d Cir. 1962).
Recently paying tribute to Judge Clark, who himself had been critical of the “devastating gloss” which some courts had placed on Rule 56, see Clark, “Clarifying” Amendments to the Federal Rules?, 14 Ohio St.L.J. 241, 249 (1953), Chief Justice Warren observed that under the Civil Rules, “a law suit is a search for the tx-uth and the tools are provided for finding out the facts before the curtain goes up on the trial.” 38 Conn.B.J. 3 (1964). The provision for summary judgment, in Admiralty no less than in the Rules of Civil Procedure, is one of the most significant of such “tools”; if the Rule is px’opexiy followed, a Court is enabled to discover whether a need exists for the “curtain” ever rising at all.
Had he wished to comply with this spirit and to make this law suit “a search for the truth,” Fanale had ample opportunity, not only to file a timely answer to the libel but also a full and meaningful affidavit, submitting to the court the specific facts which lay behind his claim of usury. He has not done so, and as we recently had occasion to observe, “[i]n a complex and litigious society, procedural anarchy cannot be condoned.” Nasser v. Isthmian Lines, 331 F.2d 124 (2d Cir. 1964).
Under the circumstances, the award of summary judgment was entirely proper, and the judgment is affirmed.
. This $5,565 sum represented one-quarter of the principal obligation, or $5,-250, plus interest for the last quarter of 1962, or $315. The libel alleged only a demand for this amount, and no indication has been provided by either party as to whether any additional interest, for earlier portions of 1962, was ever demanded or collected. Since Fanale’s claim of usury is wholly dependent upon provisions for the collection of interest from January 1, 1962, his failure to allege that interest was, in fact, collected for this earlier period seems especially significant.
. Although it is not necessary to consider the point since the District Court appeared to base its result on other grounds, the entry of a default judgment would have been entirely proper under Admiralty Rule 28.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
|
sc_decisiontype
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion.
COLOMBO v. NEW YORK
No. 71-352.
Decided February 22, 1972
Per Curiam.
Despite a grant of immunity in response to the assertion of his Fifth Amendment privilege not to be a witness against himself, petitioner refused to answer questions put to him before a Kings County, New York, grand jury. On December 7, 1965, a trial judge found that the questions put had been proper and directed petitioner to answer them. Petitioner refused; the trial court, after allowing petitioner a week’s time to change his mind, signed a commitment order stating that by “his contumacious and unlawful refusal after being sworn as a witness to answer any legal and proper interrogatories and for his wilful disobedience to the lawful mandate of this Court” petitioner had “committed a criminal contempt of court in the immediate view and presence of the Court and that said contempt was wilful and unlawful and in violation of Section 750 of the Judiciary Law of the State of New York . . . Petitioner was sentenced to 30 days and fined $250.
Appellate proceedings proved fruitless. Petitioner then offered to testify, the offer was refused, and petitioner paid his fine and served his sentence. On October 10, 1966, petitioner was indicted under § 600, subd. 6, of the New York Penal Law of 1909 “for his contumacious and unlawful refusal, after being duly sworn as a witness, to answer legal and proper interrogatories.” The trial court dismissed the indictment on double jeopardy grounds but the appellate court reversed. The reversal was sustained by the Court of Appeals, which concluded that the Fourteenth Amendment and the double jeopardy provision of the Fifth Amendment did not bar the indictment. The court reasoned that petitioner had committed two acts of contempt — one on October 14, 1965, before the grand jury, and the other on December 7 when he refused to obey the order of the judge — and that the trial judge had committed petitioner for civil, not criminal, contempt.
The judgment of the Court of Appeals must be vacated. The judgment of the New York trial court entered on December 15, 1965, was for “criminal contempt,” petitioner was sentenced to a definite term in jail and ordered to pay a fine, and neither the prosecutor nor the trial court considered his offer to testify as sufficient to foreclose execution of the sentence. For purposes of the Double Jeopardy Clause, petitioner was confined and penalized for criminal contempt. Yates v. United States, 355 U. S. 66 (1957); see also Cheff v. Schnackenberg, 384 U. S. 373 (1966); Shillitani v. United States, 384 U. S. 364 (1966); Oriel v. Russell, 278 U. S. 358 (1929). To the extent that the judgment of the Court of Appeals rested on a contrary view, it must be set aside. It also appears from its supplemental response that the State considers the two acts of contempt on October 14 and on December 7 as being partially intertwined. As we understand it from the State’s response, petitioner’s refusal to answer on October 14 did not mature into a complete contempt until December 7 when the trial court passed on the propriety of the grand jury’s inquiry and petitioner thereafter refused to obey the court’s direction to return to the grand jury and answer the questions properly put to him.
In view of the New York Court of Appeals’ misconception of the nature of the contempt judgment entered against petitioner for purposes of the Double Jeopardy Clause and in view of the substantial question of New York law that has emerged, we are disinclined at this juncture to entertain and determine the double jeopardy question presented by petitioner. The better course is to grant the petition for writ of certiorari, vacate the judgment of the New York Court of Appeals, and remand the case to that court for further proceedings not inconsistent with this opinion, thus affording that court the opportunity to reconsider the validity of the indictment under the Double Jeopardy Clause of the Constitution.
So ordered.
Question: What type of decision did the court make?
A. opinion of the court (orally argued)
B. per curiam (no oral argument)
C. decrees
D. equally divided vote
E. per curiam (orally argued)
F. judgment of the Court (orally argued)
G. seriatim
Answer:
|
songer_treat
|
B
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
Mollie Ann DUNN, Plaintiff-Appellant, v. STATE FARM FIRE & CASUALTY COMPANY, et al., Defendants-Appellees.
No. 90-1312.
United States Court of Appeals, Fifth Circuit.
April 3, 1991.
Grady F. Tollison, Tollison & Alexander, Oxford, Miss., for plaintiff-appellant.
Guy T. Gillespie, III, Robert H. Faulks, Holcomb, Dunbar, Connell, Chaffin & Willard, Oxford, Miss., for defendant-appel-lees.
Before POLITZ, WILLIAMS and JONES, Circuit Judges.
JERRE S. WILLIAMS, Circuit Judge:
After her insurance claim was denied, plaintiff-appellant Mollie Ann Dunn brought suit against State Farm Fire & Casualty Company asserting refusal to pay a claim for fire loss. She alleged breach of contract, breach of fiduciary duty, breach of duty to act in good faith, and wrongful conversion of property. Jurisdiction was based upon diversity of citizenship. 28 U.S.C. § 1332 (1988). During discovery, the district court granted State Farm a protective order for documents covered by the attorney-client privilege and work product doctrine. After discovery and on State Farm’s motion, the court entered summary judgment on the noncontractual claims. The parties then settled the breach of contract claim. Dunn appeals the protective order and the partial summary judgment.
I. FACTS AND PRIOR PROCEEDINGS.
Mollie Dunn and her husband, Melvin Dunn, owned a house in New Albany, Mississippi as tenants by the entirety, subject to a deed of trust held by the People’s Bank and Trust. They had insured the house and its contents with State Farm.
In December, 1985, the Dunns separated and Mrs. Dunn and her children moved to Houston, Mississippi. On the first weekend in February, 1986, Mrs. Dunn returned to the New Albany house and removed some of her belongings. The following Monday the house burned. From the beginning of its investigation, the fire department suspected arson. A few days after the fire, Mr. Dunn confessed to setting the fire intentionally.
Later Mrs. Dunn filed a claim with State Farm based upon her interest in the house and her share of the contents of the house. State Farm asserts that during its investigation of Mrs. Dunn’s claim, she did not disclose some of her debts on items claimed, overvalued her loss of contents of the house, and made claims upon some items which were not in the house when it burned.
State Farm urges further that it had reason to believe that Mrs. Dunn possibly had agreed to the arson. It considered the Dunn’s separation a pretext for pursuing separate insurance claims. State Farm relied further upon the facts that the Dunns initially pursued their insurance claim jointly and also, shortly after the fire, the Dunns began living together again and sharing expenses. State Farm also believed Mrs. Dunn knew where her husband poured flammable liquid in the house because she identified the area in the house in which arson investigators had found evidence of flammable liquids.
As required by Mississippi law, State Farm paid the amount owed on the deed of trust to People’s Bank and Trust Company. State Farm then denied Mrs. Dunn’s claim, because of the alleged misrepresentations, because it believed she consented to her husband’s arson, and because it was possible that Mississippi law barred Mrs. Dunn from recovering under the Dunn’s insurance policy even if she were innocent of the arson.
The district court granted partial summary judgment dismissing all of Mrs. Dunn’s extra-contractual damage claims. The district court held that State Farm did not convert Mrs. Dunn’s interest in the house because State Farm was permitted by law to take the assignment of the deed of trust on the house after paying off the mortgage. 711 F.Supp. 1362 (1988). The court ruled that State Farm’s fiduciary duty was not implicated since this ease did not involve a requirement that State Farm defend the insured against claims by third parties. Finally, in holding that State Farm did not act in bad faith, the court stated three alternative grounds: (1) Mr. Dunn’s criminal act might properly in law be attributable to Mrs. Dunn, (2) State Farm had an arguable reason to believe that Mrs. Dunn consented to her husband’s criminal act, and (3) State Farm had reason to believe that Mrs. Dunn made willful misrepresentations of material facts in her claim. In addition, the court held that Mrs. Dunn failed to create a material issue as to bad faith because she did not introduce evidence to support her burden of proof that State Farm acted with malice or gross negligence.
The parties subsequently settled the breach of contract claim by agreeing that if this Court affirms the district court, Mrs. Dunn “will forego pursuit of her contractual damage claims in exchange for State Farm’s release of its assigned note and deed of trust on the insured property.” If this Court reverses the district court, “State Farm’s liability for contract damages, if any, may be satisfied by State Farm’s release of the assigned note and deed of trust.” After the parties made this settlement, the district court certified the partial summary judgment order as a final judgment. The judgment held in abeyance the contract claims under the terms of the settlement as still pending until this appeal is decided. Mrs. Dunn appeals both the protective order and the partial summary judgment. There is no appeal of the holding that State Farm did not breach its fiduciary duty, and we therefore do not address the issue.
II. STANDARD OF REVIEW.
On appeal, we evaluate a district court’s decision to grant summary judgment by reviewing the record under the same standards which guided the district court. Brooks, Tarlton, Gilbert, Douglas & Kressler v. United States Fire Ins. Co., 832 F.2d 1358, 1364 (5th Cir.1987). According to Rule 56(c), we cannot affirm a summary judgment unless “we are convinced, after an independent review of the record, that ‘there is no genuine issue as to any material fact’ and that the movant is ‘entitled to a judgment as a matter of law.’ ” Brooks, 832 F.2d at 1364 (quoting Fed.R. Civ.P. 56(c)). We must consider fact questions with deference to the nonmovant. We decide questions of law de novo.
The Supreme Court recently explained Rule 56(c): “the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which the party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); see also Issacharoff & Loewenstein, “Second Thoughts About Summary Judgment,” 100 Yale L.J. 73, 84-91 (1990). Mrs. Dunn must present sufficient evidence to establish the existence of each element for which she bears the burden of proof in order to survive State Farm’s motion for summary judgment. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.
III. PUNITIVE DAMAGE CLAIM.
With the settlement of the contract claims, the only claim remaining is the claim of punitive damages for alleged wrongful conduct by State Farm. Mrs. Dunn’s suit is based on diversity jurisdiction, we undertake to apply Mississippi law to the issue of punitive damages and rule as would the Mississippi courts. Brooks, 832 F.2d at 1364, 1376.
Mrs. Dunn sued State Farm for punitive damages for its alleged bad faith refusal to pay a claim. Under Mississippi law, punitive damages may be assessed against an insurer only when the insurer denies a claim (1) without an arguable or legitimate basis, either in fact or law, and (2) with malice or gross negligence in disregard of the insured’s rights. Aetna Casualty & Sur. Co. v. Day, 487 So.2d 830, 832 (Miss.1986); State Farm Fire and Casualty Co. v. Simpson, 477 So.2d 242, 250, 252 (Miss.1985); see also Larr v. Minnesota Mutual Life Ins. Co., 924 F.2d 65, 67 (5th Cir.1991); Peel v. American Fidelity Assurance Co., 680 F.2d 374, 376 (5th Cir.1982) (per curiam).
Whether State Farm had an arguable reason to deny Mrs. Dunn’s claim is an issue of law for the court. Banker’s Life and Casualty Co. v. Crenshaw, 483 So.2d 254, 269 (Miss.1985), aff'd, 486 U.S. 71, 108 S.Ct. 1645, 100 L.Ed.2d 62 (1988). State Farm does not need to prove that it was a certainty that Mrs. Dunn was not entitled to payment. Instead it must show only that it had reasonable justifications, in either fact or law, to deny payment.
In deciding whether an insurer had an arguable basis to deny insurance liabili ty, Mississippi courts usually apply the di rected verdict test. Under this test, unless the insured would be entitled to a directec verdict on the underlying insurance claim an arguable reason to deny an insurant claim exists in most instances. Blue Cross & Blue Shield v. Campbell, 466 So.2d 833, 843 (Miss.1984) (“[UJnless the trial judge grants a directed verdict to the insurec plaintiff on the contract claim, then, as £ matter of law, the insurance carrier has shown reasonably arguable basis to denj the claim ... in the vast majority oi cases.”); see also Reece v. State Farm Fire & Casualty Co., 684 F.Supp. 140, 146 (N.D.Miss.1987) (when plaintiff is not entitled to directed verdict on policy claim, i1 “necessarily follows that [there was] ar arguable reason for denying the claim”) Aetna Casualty & Sur. Co. v. Day, 481 So.2d 830, 832-34 (Miss.1986) (when questions of fact existed on underlying policj claim, no reasonable juror could find fraud or malice on part of insurer; exception tc general rule would exist only under “extreme factual situations”); Southern United Life Ins. Co. v. Caves, 481 So.2d 764, 769 (Miss.1985) (failure of plaintiff to obtain summary judgment or directed verdict on policy claim eliminates punitive claim in “great majority” of cases); State Farm Fire and Casualty Co. v. Simpson, 477 So.2d 242, 254 (Miss.1985) (“if the plaintiff is not entitled to a peremptory instruction [on the contract claim], it logically follows that a punitive damage instruction should be refused” in all but rare cases). The directed verdict test is, however, “not infallible.” Campbell, 466 So.2d at 843.
The Mississippi Supreme Court has also noted that the directed verdict test should not be the sole inquiry for the trial court.
[I]t remains the responsibility and function of the trial court and this Court, in the final analysis, to determine whether or not the insurance carrier, under all the facts of the case, has a reasonably arguable basis, either in fact or in law, to refuse to pay the claim. It is upon this determination by the trial court that the punitive damages [claim] based upon bad faith is submitted to the jury.
Campbell, 466 So.2d at 844.
We conclude that Mrs. Dunn would not be entitled to a directed verdict on her contract claim and thus has no claim for punitive damages for bad faith refusal to pay a claim. State Farm clearly had arguable reasons to deny her claim.
One of State Farm’s justification! was that under Mississippi law Mr. Dunn’s act likely was attributed to Mrs. Dunn, thereby justifying the denial of coverage. When State Farm denied Mrs. Dunn’s claim, the Mississippi Supreme Court had not decided whether a husband’s criminal acts in this kind of case could be imputed to his wife so as to deny her recovery on an insurance claim. After State Farm denied Mrs. Dunn’s claim and she had filed this suit, the Mississippi Supreme Court resolved the issue by holding that an innocent wife could recover her share of insurance proceeds, regardless of the husband’s criminal acts. McGory v. Allstate Ins. Co., 527 So.2d 632, 638 (Miss.1988).
But this insurer was entitled to have a court resolve the undecided question of law to determine its liability without being punished for referring the question to a court. For requiring the resolution of the legal issue it cannot be liable under Mississippi law for punitive damages, even if it does not prevail on the underlying legal issue. Gulf Guaranty Life Ins. Co. v. Kelley, 389 So.2d 920, 923 (Miss.1980); see also Gorman v. Southeastern Fidelity Ins. Co., 775 F.2d 655, 659 (5th Cir.1985); Michael v. National Sec. Fire & Casualty Co., 458 F.Supp. 128, 131 (N.D.Miss.1978). We agree with the district court that the question of whether a husband’s criminal act may be attributable to his wife in order to deny insurance coverage was reasonably debatable under Mississippi law at the time State Farm refused to honor Mrs. Dunn’s claim. The Mississippi courts had not addressed the issue directly, Mississippi law could be found to support either position, and other jurisdictions were split on the issue. Because the issue was debatable at the time coverage was denied, State Farm had an arguable reason to deny coverage.
State Farm urges that it had a second arguable reason to deny Mrs. Dunn’s claim. It reasonably believed that Mrs. Dunn likely had consented to her husband’s arson. The district court so found. In their respective briefs, the parties recognize the district court’s finding of consent as a finding of complicity.
We find that State Farm had an arguable basis to believe that Mrs. Dunn was guilty of complicity. Mrs. Dunn had motive because of her poor financial condition. She removed items from the house the weekend before the fire. During the investigations of the fire and during her husband’s criminal trial, she volunteered statements indicating her knowledge of how the fires were set. She said that she left a trail of chlorine solution along the upstairs hall and down the stairs when moving a water bed the day before the fire. This was precisely where the arson investigators found a trail of flammable liquids. The small quantity of chlorine diluted in many gallons of water could not, however, have accounted for the extensive fire trail patterns. Mr. and Mrs. Dunn also began to live together again shortly after the fire. We conclude from this evidence that the district court did not err in finding that State Farm had a reasonable basis for suspicion that Mr. and Mrs. Dunn acted in concert.
Another ground motivating State Farm’s decision not to honor Mrs. Dunn’s claim was that Mrs. Dunn made false statements during the course of the investigation by overstating the value of the property destroyed by the fire. There is no dispute that Mrs. Dunn made false statements. False statements may result in denial of coverage if they are material and they are made willfully. Watkins v. Continental Ins. Cos., 690 F.2d 449, 451 (5th Cir.1983); Edmiston v. Schellenger, 343 So.2d 465, 466 (Miss.1977). Mrs. Dunn claims that these errors were honest mistakes and that they were not material. State Farm disputes these contentions. Although Mrs. Dunn’s misrepresentations to State Farm might not be sufficient to provide State Farm with a winning defense, again they do provide State Farm with an arguable reason to deny her claim. See Merchants Nat’l Bank v. Southeastern Fire Ins. Co., 751 F.2d 771, 779 (5th Cir.1985).
Thus, State Farm had three fully justifiable and persuasive reasons to deny Mrs. Dunn’s claim as doubtful and arguable. In addition, Mrs. Dunn failed to raise a material issue as to the second element of a claim for punitive damages: whether State Farm acted with malice or gross negligence when it refused to honor Mrs. Dunn’s claim. Mrs. Dunn argues that the absence of.an arguable reason to deny her claim is enough to prove malice or gross negligence. This argument fails for two reasons. She first failed to prove the absence of an arguable reason, the factual premise of her argument. Second, the absence of an arguable reason does not necessarily establish malice or gross negligence. Day, 487 So.2d at 833. We affirm the district court’s entry of summary judgment with respect to Mrs. Dunn’s claims for punitive damages.
IV.CONVERSION.
Mrs. Dunn also contends that State Farm converted her equitable interest m her home when it took an assignment of the Dunns’ deed of trust from People’s Bank and Trust Company. The argument is meritless. State Farm paid the mortgaged owed by the Dunns as required by state law, and took the assignment on the deed of trust to which it was entitled. Miss.Code Ann. § 83-13-9 (1972).
V.PROTECTIVE ORDER.
Mrs. Dunn urges that the district court erred in issuing a protective order for the documents prepared by State Farm’s attorneys while they were investigating the fire. She first argues that the attorney-client privilege does not apply because the attorneys were performing as investigators rather than attorneys.
Since state law provides the rule of decision, Mississippi law is determinative of the attorney-client privilege. Fed.R.Evid. 501; see Martin v. American Employers’ Ins. Co., 115 F.R.D. 532, 534 (S.D.Miss.1987). Mississippi Rule of Evidence 502 provides that a client has the privilege of refusing to disclose any confidential communications made “for the purpose of facilitating the rendition of professional legal services to the client.” The Mississippi Supreme Court has described the privilege as “relating] to and covering] all information regarding the client received by the attorney in his professional capacity and in the course of his representation of the client.” Barnes v. State, 460 So.2d 126, 131 (Miss.1984). The privilege does not require the communication to contain purely legal analysis or advice to be privileged. Instead, if a communication between a lawyer and client would facilitate the rendition of legal services or advice, the communication is privileged.
We hold that the attorney-client privilege protected the documents Mrs. Dunn sought. The privilege extends to all communications between State Farm and the attorneys it retained for the purpose of ascertaining its legal obligations to the Dunns. The privilege is not waived if the attorneys perform investigative tasks provided that these investigative tasks are related to the rendition of legal services. In addition, the district court found that Mrs. Dunn had already discovered all facts to which she was entitled.
Mrs. Dunn argues second that the work-product doctrine does not apply because the documents were prepared before any reasonable anticipation of litigation. The applicable work product doctrine is embodied in Federal Rule of Civil Procedure 26(b)(3). Like the attorney-client privilege, the work product doctrine insulates a lawyer’s research, analysis of legal theories, mental impressions, notes, and memoranda of witnesses’ statements from an opposing counsel’s inquiries. Upjohn Co. v. United States, 449 U.S. 383, 400, 101 S.Ct. 677, 688, 66 L.Ed.2d 584 (1981); United States v. El Paso Co., 682 F.2d 530, 543 (5th Cir.1982), cert. denied, 466 U.S. 944, 104 S.Ct. 1927, 80 L.Ed.2d 473 (1984). Work product only protects documents produced by or for an attorney preparing for litigation.
State Farm received notice of the Dunns’ fire loss on February 4, 1986. The next day, Mr. Dunn signed a confession admitting he intentionally set fire to the house. State Farm’s adjuster learned of the confession on February 10, 1986, and within a week State Farm retained outside counsel. When State Farm hired its attorneys, Mr. Dunn’s confession gave State Farm a solid basis to question the Dunns’ insurance claim. Thus, from the date they were hired, State Farm’s attorneys could anticipate litigation. As a result, the work product doctrine properly applied.
VI.CONCLUSION.
In sum, we affirm the district court. It properly awarded summary judgment in favor of State Farm on Mrs. Dunn’s claim for punitive damages and for conversion. We also affirm the granting of State Farm’s motion for a protective order.
AFFIRMED.
. Under the "lying exception,” the directed verdict rule does not apply when " 'the jury is asked to reject on grounds of deliberate falsehood or fabrication (or misrepresentation) the insurer’s defense to the underlying contract claim.’ ” Andrew Jackson Life Ins. Co. v. Williams, 566 So.2d 1172, 1183-86 (Miss.1990) (quoting Campbell, 466 So.2d at 852 (Robertson, J., concurring)) (emphasis by Campbell court). Thus, the rule does not apply if the only evidence precluding a directed verdict on the policy claim in favor of the plaintiff is contradicted testimony by the insurer’s agents. The exception does not apply to this case.
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_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.
Grover John MORAN, III., Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary, Respondent-Appellee.
No. 85-3083
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Jan. 28, 1986.
Rehearing Denied Feb. 26, 1986.
Charles J. Yeager, Arlington, Mass., for petitioner-appellant.
Tom W. Thornhill, Asst. Dist. Atty., Sli-dell, La., for respondent-appellee.
Before CLARK, Chief Judge, WILLIAMS and HIGGINBOTHAM, Circuit Judges.
CLARK, Chief Judge:
Appellant Grover Moran challenges the district court’s dismissal of his petition for habeas corpus relief. Because the record supports the district judge’s finding that Moran’s confession was voluntary, we affirm.
Moran was arrested on March 31, 1977, and charged with multiple counts of crime against nature. His attorney retained a psychiatrist, Dr. Malcolm Latour, to examine him. The attorney instructed Moran to cooperate with Dr. Latour, but not to speak to anyone else.
After Dr. Latour’s examination on April 8, two agents of the Federal Bureau of Investigation (F.B.I.) questioned Moran about a murder unrelated to the charges on which he was arrested. The agents first advised Moran of his Miranda rights, both orally and on a written form which he read and signed. Moran “broke” and confessed to the murder an hour into the interview after the agents told him that the victim’s son blamed his father for his mother’s death.
Local police officers advised Moran of his Miranda rights and interviewed him the next day. Moran agreed to show the officers where he disposed of the murder weapon and the victim’s clothes. Extensive searches for these items proved fruitless. At the end of the day, Moran signed a written statement detailing the facts he had revealed to the F.B.I. agents the day before.
Moran repudiated this confession at his subsequent suppression hearing and trial. He testified that he talked to the F.B.I. agents despite his attorney’s warning because he was afraid, confused, and didn’t know what to do. He also stated that he confessed in order to get out of the interview and away from the agents. Dr. Lat-our testified at both proceedings that Moran did not have the mental capacity to understand the Miranda rights nor to voluntarily waive them. A jury convicted Moran of first degree murder and he was sentenced to life imprisonment.
After exhausting state avenues for relief, Moran filed a petition for writ of habe-as corpus in the United States District Court for the Eastern District of Louisiana. The district judge summarily denied his petition. This court reversed and remanded for an evidentiary hearing on the issue of whether Moran’s confession was voluntary. This hearing was held on July 6, 1984.
Dr. Latour’s deposition was admitted into evidence at the hearing. Dr. Latour testified that his examination revealed that Moran’s intelligence was below normal, although Moran was not mentally retarded. Dr. Latour stated that Moran was gaunt, tremulous, submissive, and suffering from great anguish or pain on the day of the examination and F.B.I. interrogation. Dr. Latour diagnosed Moran’s condition as severe prepsychotic depression. He concluded that at the time of Moran’s interrogation and confession, Moran knew the difference between right and wrong, but did not have mental capacity to understand and intelligently waive constitutional rights or the normal mental defensive mechanisms necessary for a voluntary confession in an interrogative setting.
Dr. David Shraberg, whom the magistrate recognized as qualified to testify in the field of forensic psychiatry, testified on the basis of his review of Moran’s medical records, Moran’s statement, and transcripts of prior proceedings in the case. Dr. Shra-berg never personally examined Moran. Dr. Shraberg testified that Moran was legally sane and competent at the time of his confession, that Moran was probably suffering from a great deal of guilt and a need to confess rather than an incapacitating mental defect or illness at that time, and that this emotional distress would not have impaired Moran’s capacity to rationally waive his rights or freely confess.
The magistrate found the testimony of Dr. Shraberg to be the more credible, and recommended dismissal of Moran’s petition with prejudice. The district court adopted the magistrate’s findings of fact and conclusions of law, and dismissed the petition.
On review of a federal criminal conviction, we apply the clearly erroneous standard to a federal district court’s determination that a petitioner’s confession was voluntary. United States v. Gorel, 622 F.2d 100, 104-05 (5th Cir.1979), cert. denied, 445 U.S. 943, 100 S.Ct. 1340, 63 L.Ed.2d 777 (1980); United States v. Watson, 591 F.2d 1058, 1961 (5th Cir.), cert. denied, 441 U.S. 965, 99 S.Ct. 2414, 60 L.Ed.2d 1070 (1979); United States v. Kelly, 556 F.2d 257, 260 (5th Cir.1977), cert. denied, 434 U.S. 1017, 98 S.Ct. 737, 54 L.Ed.2d 763 (1978); United States v. Vasquez, 534 F.2d 1142, 1146 (5th Cir.), cert. denied, 429 U.S. 979, 97 S.Ct. 489, 50 L.Ed.2d 587 (1976). A state court finding of voluntariness, however, requires an independent federal determination of that issue. In Miller v. Fenton, - U.S. -, - ---, 106 S.Ct. 445, 449-53, 88 L.Ed.2d 405 (1985), reversing and remanding 741 F.2d 1456 (3d Cir.1984), the Supreme Court refused to apply the presumption of correctness provided for in 28 U.S.C. § 2254(d) to state court determinations of voluntariness. Rather, the Court held “that the ultimate question of the admissibility of a confession merits treatment as a legal inquiry requiring plenary federal review.” Id. at -, 106 S.Ct. at 452. The petitioner in this case was convicted in state court. In the present federal habeas corpus proceeding, a magistrate first made the determination that his confession was voluntary after an evidentiary hearing ordered by this court, and the district judge then adopted that determination. Since here a federal court, after an evidentiary hearing, has determined to uphold a state court’s finding of voluntariness, our appellate task is to review a federal determination of voluntariness, not such a court’s decision to apply the § 2254(d) presumption of correctness.
In addition, the magistrate and the district judge determined that Moran’s confession was voluntary because the magistrate found Dr. Shraberg’s testimony more credible than Dr. Latour’s. A factual issue which is dispositive of a constitutional question upon resolution is subject to review under the normal standard of review for other factual determinations. Miller, - U.S. at -, 106 S.Ct. at 452 (citing Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 534, 99 S.Ct. 2971, 2977, 61 L.Ed.2d 720 (1979)). A magistrate’s or district judge’s decision to credit the testimony of one witness over the contrary testimony of another is thus subject to review under the clearly erroneous standard. United States v. Pozos, 697 F.2d 1238, 1243 (5th Cir.1983) (“The credibility choices of the district court, based on live testimony at a suppression hearing, are subject to the normal ‘clearly erroneous’ standard of review.” (citations omitted)); see also Miller, - U.S. at -, 106 S.Ct. at 451 (deference to the trial court’s determination is appropriate when the issue concerns the credibility of witnesses).
The record here provides ample support for the magistrate’s decision to rely on Dr. Shraberg’s testimony rather than Dr. Latour’s. Both the F.B.I. agents and the local police advised Moran of his rights before questioning him. Moran indicated to Dr. Latour on the same day as his confession that he understood he was to cooperate with the doctor, but not to speak to anyone else. Dr. Latour stated in his deposition that Moran knew the difference between right and wrong and was in touch with reality on that day, yet concluded that Moran could not confess voluntarily because of emotional vulnerability due to severe depression.
Dr. Shraberg attributed that willingness to confess to natural feelings of guilt rather than mental illness or emotional vulnerability. He explained that Moran’s confession and subsequent repudiation fit the psychopathic personality which often confesses when caught and then feels discharged. He noted that Dr. Latour’s report contained personal, subjective opinions and terms which did not support a professional diagnosis of clinical depression so severe as to render Moran incapable of defending himself or being aware of his rights.
The record does not suggest that Moran was mistreated, held incommunicado, jailed for a substantial period of time, subjected to prolonged questioning, or denied access to his retained attorney before questioning. The appeal of the F.B.I. agents to Moran’s empathy and emotions was not an unacceptable interrogation tactic.
Moran has shown only that at the time he confessed he was of low intelligence, was feeling depressed, and was disturbed by some of the questions and statements of his interrogators. He has not shown that his will was usurped by them. The magistrate was entitled to conclude that Moran was not so lacking in his capacity to resist self-incrimination that his confession should be deemed involuntary. His finding that Dr. Shraberg’s testimony was more credible than Dr. Latour’s is not clearly erroneous. Moran has thus failed to establish that his confession was involuntary.
The judgment appealed from is
AFFIRMED.
We do not decide today whether we would apply the same standard in reviewing a federal habeas court’s decision to overturn a state court's determination of voluntariness. We leave to another day the decision whether, in such a case, Miller v. Fenton’s balancing of federalism, comity, and due process concerns might lead this court to make its own independent determination of vol-untariness without extending any presumption of correctness to the conclusions of the state court.
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.
CZARNECKI et al. v. UNITED STATES.
No. 6372.
Circuit Court of Appeals, Third Circuit.
Feb. 8, 1938.
C. Raymond Lyons, of New Brunswick, N. J. (Herman D. Ringle, of New Brunswick, N. J., of counsel), for appellants.
John J. Quinn, U. S. Atty., of Red Bank, N. J., and Thorn Lord, of Trenton, N. J.
Before THOMPSON and BIGGS, Circuit Judges, and DICKINSON, District Judge. •
BIGGS, Circuit Judge.
The appellants were tried to a jury upon an indictment of four counts. The jury returned a verdict of guilty as to both appellants upon both the second and fourth counts.
The second count charges a violation of the provisions of section 3258 of the Revised Statutes of the United States, 26 U. S.C.A. § 1162, modified as hereafter set out, in that the appellants had in their possession and custody and under their control a still set up and had failed to register it with the district supervisor of the Alcohol Tax Unit in the Bureau of Internal Revenue in the Fourth District of the United States. This count also charges that the still was intended by the appellants for the unlawful production of distilled spirits for beverage and commercial purposes. The fourth count of the indictment charges that the appellants concealed distilled spirits, upon which the tax had not been paid, theretofore removed to a place other than a bonded warehouse, with intent to defraud the’United States.
The circumstances of the case are as follows: Upon the evening of August 18, 1936, agents of the Alcohol Beverage Control Unit of the State of New Jersey located a still in a building in East Brunswick township, Middlesex county, N. J. This still was not in operation and no one was discovered upon the premises. The agents kept a continuous watch upon the building housing the still until the morning of August 23, 1936, when the appellants entered the building. The agents waited an half hour, entered the building, and placed the appellants under- arrest. At this time, Kulas was engaged in disconnecting the pipe between the pump and the cooker on the still; Czarnecki was upon the column itself, engaged in disconnecting it.
Eleven cans of alcohol, designated as “high wine,” were found within the building. There was also present a quantity of coke and material ordinarily used to operate a still. The still itself was not in operation. The appellants testified that they had come upon the premises to steal the still, with t-he intention of selling the material w-hich composed it as junk.
As to the Conviction of the Appellants upon the Second Count of the Indictment.
In order to set forth a brief history of section 3258 of the Revised Statutes, we state that this section was derived from the Act of July 20, 1868, c. 186, § 5, 15 Stat. 126, and from the Act of December 24, 1872, c. 13, §§ 1, 2, 17 Stat. 401, 402, was repealed by the National Prohibition Act, 27 U.S.C.A. § 1 et seq., and was re-enacted and revived by the Act of November 23, 1921, c. 134, § 5, 42 Stat. 222, the Willis-Campbell Act, 27 U.S.C.A. § 3, supplemental to the National Prohibition Act. United States v. Stafoff, 260 U.S. 477, 43 S.Ct. 197, 67 L.Ed. 358. By subsequent legislation the designation of that officer of the United States by whom and with whom a still set up should be registered has been changed from time to time. It is the contention of the appellants that section 3258 has been wholly superseded and repealed by implication by article 14 of Regulations 3, promulgated by Bureau of Prohibition, Treasury Decision No. 54, authorized by the Prohibition Reorganization Act of May 27, 1930, 46 Stat. 427, 27 U.S.C.A. §§ 101-108. They contend this because article 14 requires every person, including any proprietor of an industrial alcohol plant, having possession, custody, or control of a set up still to register it with the district supervisor, meaning the supervisor of permits in the Bureau of Industrial Alcohol; that therefore the second count of the indictment by its language does not charge an offense against the United States. The appellants further contend that, since article 14 contains exceptions to the requirement of registration (for example glass laboratory stills of small capacity), these exceptions must be negatived in the indictment. In the case at bar, since the count under discussion does not negative the exceptions, the appellants urge that it is insufficient in this respect as well. United States v. Carney, D.C., 228 F. 163; United States v. Wood, D.C., 159 F. 187.
The appellants take the position that article 14 of Regulations 3 is still in full force and effect and must be held to be itself unmodified because of the decision of this court in Helvering v. Druggists’ Specialties Co., 3 Cir., 76 F.2d 743.
We are unable to accept this conclusion. The decision of this court referred to held simply that title 3 of the National Prohibition Act, 27 U.S.C.A. § 71 et seq., was still in force despite the Twenty-First Amendment. The decision in Helvering v. Druggists’ Specialties Company cannot be construed to mean that the provisions of section 3258 of the Revised Statutes, 26 U.S.C.A. § 1162, modified by article 14 of Regulations 3, could not be further modified by regulations properly issued pursuant to the authority of subsequent statutes.
This is what in fact occurred. That provision of section 3258, requiring registration of a set up still with the collector of the district, first changed by article 14 of Regulations 3, was further modified. The designation of an officer of the United States to receive registrations was again changed pursuant to the authority of the Act of June 30, 1932, as amended by the Act of March 3, 1933, c.>’ 212, title 2, § 16, 47 Stat. 1517, 1518, 5 U.S.C.A. §§ 124 to 128. Executive Order No. 6639, effective March 10, 1934, 5 U.S.C.A. § 132 note, was issued by the President under the authority of the act referred to. By this Executive Order the Commissioner of Internal Revenue, subject to the approval of the Secretary of the Treasury, was empowered to prescribe regulations for the enforcement of the law under such provisions of the National Prohibition Act and amendments thereto which had not been rendered inoperative by the Twenty-First Amendment. Accordingly, the Commissioner of Internal Revenue issued Treasury Decision No. 4432, the third paragraph of which imposed upon the Deputy Commissioner in charge of the Alcohol Tax Unit and upon his assistants all the rights and duties conferred upon the Secretary of the Treasury and the Commissioner by Executive Order No. 6639, and section 4(a) of the Reorganization Act of March 3, 1927, c. 348, § 4(a), 44 Stat. 1382, 5 U. S.C.A. § 281c(a), 26 U.S.C.A. § 1340, in so far as these relate to duties to be performed under paragraph 2 of the Treasury Decision, The right and duty to receive the registration of set up stills thereupon passed to the Deputy Commissioner of Internal Revenue in charge of the Alcohol Tax Unit. Paragraph 4 of the Treasury Decision, however, provided that all regulations prescribed for the enforcement of the law, theretofore administered by the Commissioner of Industrial Alcohol and his assistants or by the Bureau of Industrial Alcohol, should continue in effect as Regulations of the Bureau of Internal Revenue. Paragraph 4 of the Treasury Decision also provided that the term “Supervisor or Supervisors of Permits,” whenever used in the regulations, should be held to mean “District Supervisor.”
The effect of the changes worked in respect to section 3258 consists of nothing more than a substitution of another officer for registration in lieu of the collector of the district as originally designated by the statute. The change so worked is binding upon the public and fulfills the requirement of law. We are therefore of the opinion that the right and duty to receive the registration of set up stills was vested in the district supervisor of the Alcohol Tax Unit as the agent and assistant of the Deputy Commissioner of Internal Revenue at the time referred to in the indictment. If the appellants had in their possession and custody or under their control a still set up and had not registered it with the officer designated, they committed a violation of the law.
The appellants also contend that, if we hold that section 3258 is. not repealed by article 14 of Regulations 3, we are then bound to conclude that section 3258 applies only to stills for the production of beverage liquors, and that article 14 of Regulations 3 applies to stills for the production of commercial alcohol. We can see no basis for such a contention. We are of the opinion that section 3258, modified as indicated, applies to all set .up stills and that no plausible argument can be advanced for an arbitrary distinction in requirements of registration dependent upon the purpose for which the still was set up.
We are of the opinion that the purpose for which the still is to be used is immaterial, and in so holding we do not follow the decision in the case of United States v. Knoblauch, D.C., 291 F. 407, in so far as it may be applicable to the case at bar. Section 3258, 26 U.S.C.A. § 1162, requires the registration of every set up still for the protection of the revenue. The possession of a still set up and not registered is made malum prohibitum by the terms of the statute. Since the statute itself requires the purpose for which the still is to be used to be set forth in the application for registration, any pertinency of the purpose for which the still is to be used is eliminated. Intent is not an ingredient of the offense.’ The statute must be construed literally.
The learned trial judge in his charge correctly enunciated the principle that possession or custody of a still set up and unregistered was in and of itself a violation of the law and that ’it was the intention of Congress to require the registration of every set up still. •
The appellants contend that the court below erred in refusing to allow them to testify as to their conviction in a state court for the attempted theft of the still. They urge that such conviction was part of the res gestae and that evidence of it was admissible in corroboration of their own statements of their intended theft. In rejecting such evidence the trial judge did not commit error. The appellants were upon their trial as charged in the indictment, and their conviction in a state court upon another charge was not evidence.
We,deem it unnecessary to comment extensively upon that conduct of the district attorney objected to by the appellants. We can discover nothing in his language, complained of by the appellants, which in the words of the opinion in Diggs v. United States, 9 Cir., 220 F. 545, 557, is “so offensive or inflammatory * * * as to require us on that ground to reverse the judgments.” Fitter v. United States, 2 Cir., 258 F. 567, 573; Dunlop v. United States, 165 U.S. 486, 498, 17 S.Ct. 375, 41 L.Ed. 799. Further, the trial judge expressly charged, “Conduct of counsel not consistent with the proofs and the proper procedure of the trial, should be discredited and in nowise considered in reaching your determination and verdict.” The rights of the appellants were adequately protected by this charge. ‘
In conclusion we state that there was ample evidence to send the case to the jury upon the second count of the indictment. In this connection it should be noted that the appellants, though alleging themselves to be thieves, drove directly to the premises and entered the building housing the still. They did this without hesitation, though they were the first persons to approach the still for five days. The sounds which they made inside the building were audible to the officers hidden at some distance from the building. Such conduct is not entirely compatible with thievery. But, be that as it may, when arrested the appellants had possession and custody of the still and plainly had exercised dominion and control over it. The appellants may have been agents of the owners in order to remove the still to a safer place; they may have been thieves as they contend; but the question of their possession, custody, or control was properly one for the jury.
As to the Conviction of the Appellants upon the Fourth Count of the Indictment.
In respect to the conviction of the appellants upon the fourth count of the indictment, we are of the opinion that there was no sufficient evidence that the appellants, or either of them, had removed or aided or abetted in the removal, concealed or aided in the concealment, of the distilled spirits or “high wine” found upon the premises housing the still.
Accordingly, the judgment of the court below as to both appellants is affirmed as to the second count and reversed as to the fourth count.
See Whitcombe v. United States, 3 Cir., 90 E.2d 290, 293; United States v. Dibella, 2 Cir., 28 E.2d 805; United States v. Lecato, 2 Cir., 29 F.2d 694; Silva v. United States, 9 Cir., 35 E.2d 598; Connley et al. v. United States, 9 Cir., 46 F.2d 53; Scott v. United States, 10 Cir., 78 F.2d 791; Benton v. United States, 4 Cir., 80 F.2d 162. We refer particularly to the note upon this subject by Judge Soper to the opinion in the last cited case. By analogy see, also, United States v. Minker, D.C., 19 F.Supp. 409.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
songer_numresp
|
4
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY, Plaintiff-Appellant, v. Mary Grace WILLENBRINK, Administratrix for the Estate of Paul J. Willenbrink, III; Charles T. Walz, Jr.; Larry D. Tincher; and Mary L. Lippert, Defendants-Appellees.
No. 90-5604.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 6, 1990.
Decided Jan. 22, 1991.
Wayne J. Carroll (argued), Edward H. Bartenstein, MacKenzie & Peden, Louisville, Ky., for plaintiff-appellant.
Brian K. Darling (argued), Louisville, Ky., Douglas E. Miller, Miller & Durham, Radcliff, Ky., George M. Streckfus (argued), Segal & Shanks, Louisville, Ky., for defendants-appellees.
Before MERRITT, Chief Judge, JONES, Circuit Judge and WELLFORD, Senior Circuit Judge.
The Honorable Harry W. Wellford assumed senior status on January 21, 1991.
MERRITT, Chief Judge.
Based on the concerns set out in our earlier decisions in Grand Trunk Western Railroad v. Consolidated Rail Corp., 746 F.2d 323 (6th Cir.1984), Allstate Insurance Co. v. Mercier, 913 F.2d 273 (6th Cir.1990), and Omaha Property and Casualty Co. v. Johnson, 923 F.2d 464 (6th Cir.1991), we remand this diversity insurance coverage case seeking declaratory judgment. The District Court decided the coverage question in favor of the insurance carrier. The District Court on remand should specifically consider whether its exercise of discretion in granting a declaratory judgment is appropriate in this case.
The Administratrix of the estate of Paul J. Willenbrink, III sued Mary L. Lippert, Charles Walz and Larry Tincher in a state court in Kentucky for damages resulting from personal injury and death. On September 14, 1989, the Kentucky state court dismissed Nationwide, defendant Lippert’s insuror, as a defendant in the state court negligence action; but the state court's decision that Nationwide was not a proper defendant in the tort action was not a refusal to hear the serious coverage question presented under the policy issued by Nationwide to Lippert. The order dismissing Nationwide “pass[ed] all issues of coverage to the case on its merits, to be litigated after the liability action is tried.” The parties have now supplied the state court order which we may notice judicially. See Advisory Notes, Rule 201, Fed.R.Evid.
Rather than wait for the state court to hear the coverage question in the order which the state judge determined to be appropriate, Nationwide filed a declaratory judgment action in U.S. District Court on September 25, 1989, naming all parties in the state court action as defendants. The coverage question presented in both the state and the federal courts is one of first impression under Kentucky law.
The Declaratory Judgment Act grants the district courts a discretion to entertain cases such as this one; however, this discretion is guided by certain principles. Omaha Property and Casualty Insurance Co. v. Johnson, 923 F.2d 464 (6th Cir.1991); Allstate Insurance Co. v. Mercier, 913 F.2d 273 (6th Cir.1990); Grand Trunk Western Railroad v. Consolidated Rail Corporation, 746 F.2d 323 (6th Cir. 1984); American Home Assurance Co. v. Evans, 791 F.2d 61 (6th Cir.1986); Manley, Bennett, McDonald & Co. v. St. Paul Fire & Marine Insurance Co., 791 F.2d 460 (6th Cir.1986). This Court reviews the exercise of such discretion de novo, applying a general standard involving five considerations. The general standard is whether “the judgment will serve a useful purpose in clarifying and settling the legal relations in issue,” and whether “it will terminate and afford relief from the uncertainty, insecurity, and controversy giving rise to the proceeding.” Allstate, 913 F.2d at 277; Grand Trunk, 746 F.2d at 326. Five factors are applied to determine whether such a result can be achieved:
(1) whether the judgment would settle the controversy;
(2) whether the declaratory judgment would serve a useful purpose in clarifying the legal relations at issue;
(3) whether the declaratory remedy is being used merely for the purpose of “procedural fencing” or “to provide an arena for a race for res judicata
(4) whether the use of a declaratory action would increase friction between our federal and state courts and improperly encroach on state jurisdiction, and
(5) whether there is an alternative remedy that is better or more effective.
Allstate, 913 F.2d at 277; Grand Trunk, 746 F.2d at 326. These considerations follow the approach of the Supreme Court in similar cases. In Green v. Mansour, 474 U.S. 64, 106 S.Ct. 423, 88 L.Ed.2d 371 (1985), the Court noted that whether a federal court should entertain such cases is a matter of discretion based on considerations of “equity, comity and federalism,” the uncertain effect of res judicata and the tendency of such decisions to be a “partial end run” around the authority of state courts to adjudicate claims falling within their jurisdiction. Id. at 72-73, 106 S.Ct. at 427-28.
In this case, neither party brought to the attention of the District Court the above-discussed line of authority from this Court and the Supreme Court, nor is it apparent from the record that the District Court was informed that the state court had expressly reserved the coverage question to a later date. In light of these omissions and the duty of comity owed by federal courts to the state courts in our federalist system of independent courts of equal dignity, the District Court should specifically address the question of the exercise of its discretion under the Declaratory Judgment Act, 28 U.S.C. § 2201.
Accordingly, we remand this matter to the District Court for reconsideration.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_r_fed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
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 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_appel1_7_5
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
James Edward CARTER, Appellant, v. Marvin MANDEL, Governor, Robert J. Lally, Secretary of Public Safety and Correctional Service, J. Brown Hardy, Acting Director of Patuxent Institution and etc., Appellees. James Edward CARTER, Appellant, v. J. Brown HARDY, Acting Director, Patuxent, Appellee. Charles Anegus ALLEN, James Edward Carter, Inmates, Patuxent Institution, on behalf of themselves and all others similarly situated, and Robert T. Morgan, Appellants, v. Robert J. LALLY, Secretary, Maryland Department of Public Safety and Correctional Services, Mark A. Levine, Commissioner, Maryland Division of Correction, J. Brown Hardy, Acting Director, Patuxent Institution, Franklin Goldstein, Chairman, Board of Patuxent Institution, Jonas Rappeport, M. D., Associate Member, Board of Patuxent Institution, Rev. Marcus G. Wood, Associate Member, Board of Patuxent Institution, and Peter Lejins, M. D., Associate Member, Board of Patuxent Institution, Jerome D. Fran, Robert A. Gordon, Edward A. Tomlinson, Monor B. Crager, Robert B. Levinson, Olive Quinn, John M. Pettibone, Leonard A. Briscoe, Jasper R. Clay, Jr., Russell J. White, and Robert Cahill, Members of Patuxent’s Board of Directors, Appellees.
No. 77-1530.
United States Court of Appeals, Fourth Circuit.
Argued Feb. 6, 1978.
Decided March 21, 1978.
Charles F. Morgan, Baltimore, Md. (Michael A. Millemann, The Legal Service Clinic; Richard G. Fishman, Baltimore Legal Aid Bureau, Inc., Baltimore, Md., on brief), for appellants.
Henry J. Frankel, Asst. Atty. Gen., Baltimore, Md. (Francis B. Burch, Atty. Gen. of Md., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, Md., on brief), for appellees.
Before HAYNSWORTH, Chief Judge, and BUTZNER and HALL, Circuit Judges.
PER CURIAM:
This action was brought to challenge the adequacy of the legal assistance available to Maryland prisoners. The state has not established prison law libraries, but it operates a public defender program. The district court’s opinion carefully analyzes the prisoners’ needs and the public and private assistance that is available. See, Hall v. State of Maryland, 433 F.Supp. 756 (D.Md. 1977).
Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), decided after this case was tried, holds that failure to provide prisoners with adequate law libraries or assistance from legally trained persons violates their constitutional right of access to the courts. With one exception, the district court correctly anticipated the Supreme Court’s ruling. Bounds indicates that the constitutional right of access to the courts extends to federal civil rights claims. 430 U.S. at 827, 828, n.17, 97 S.Ct. 1491. Because the district court concluded that Maryland has no constitutional obligation to provide assistance in federal civil rights cases, 433 F.Supp. at 779-80, that aspect of the case must be remanded for reconsideration in light of Bounds.
The district court found that the legal assistance provided for all other types of litigation was constitutionally sufficient. With respect to these, we affirm. Although litigation is not static and the future may require changes, the record establishes that Maryland has commendably recognized its constitutional obligation to provide legal assistance for its prisoners.
Affirmed in part.
Vacated in part and Remanded.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
songer_usc2
|
18
|
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 18. 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 v. Anthony SALERNO et al. Appeal of Howard SILVERMAN, in No. 73-1195. Appeal of William SILVERMAN, in No. 73-1196. Appeal of Angelo ROSSI, Jr., in No. 73-1197.
Nos. 73-1195 to 73-1197.
United States Court of Appeals, Third Circuit.
Argued Sept. 5,1973.
Decided Sept. 25, 1973.
Daniel H. Greenberg, New York City, for appellants in Nos. 73-1195 and 73-1196.
Morris M. Goldings, and Robert A. Saggese, Mahoney, Atwood & Goldings, Boston, Mass., for appellant in No. 73-1197.
Herbert J. Stern, U. S. Atty., and Richard S. Zackin, Asst. U. S. Atty., Newark, N. J., for appellee.
Before HASTIE, VAN DUSEN and GIBBONS, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
These appeals challenge judgment and commitment orders of the district court entered after jury verdicts had been returned finding the defendants-appellants Rossi, H. Silverman and W. Silverman guilty on Count 1 of the indictment, charging conspiracy to transport stolen securities in interstate commerce in violation of 18 U.S.C. § 371, and defendant-appellant Rossi guilty on various substantive counts (Counts 3, 6, 7, 8 and 9), charging the transportation of stolen securities in interstate commerce in violation of 18 U.S.C. §§ 2 and 2314. After careful consideration of the contentions of defendants-appellants, we have con-eluded that the record requires the affirmance of the judgments and commitments of the district court.
Appellants contend, inter alia, that the evidence at trial was insufficient to prove that they were members of the overall, single conspiracy charged in the indictment in that the evidence established at most that they participated in separate, multiple conspiracies. In analyzing this contention, this court must view the evidence “in the light most favorable to the prosecution in order to sustain the convictions.” United States v. DeCavalcante, 440 F.2d 1264, 1273 (3d Cir. 1971). The evidence at trial established that co-defendants Zelmanowitz, Green, Beckley and Salerno (all severed from the trial for various reasons) were at the core of a conspiracy formed to procure stolen securities of various types for subsequent sale to unsuspecting brokerage houses. Each of these individuals performed a specialized function in furtherance of the conspiracy. Green and Beckley were continuously pursuing stolen securities which, when found, were purchased and turned over to Zelmanowitz for resale after Salerno had checked out the reliability of the seller. The evidence further e$tablished, largely through the testimony of eoeonspirator Zelmanowitz, the Government’s main witness, that defendant Rossi supplied the core group with stolen securities on two occasions and that appellants Silverman supplied the core group with counterfeit securities on one occasion.
Appellants Rossi and Silverman argue that they were not members of the overall conspiracy because they merely sold to a pre-existing conspiracy without knowledge of the members or scope of this conspiracy. The appellants rely upon the case of United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940), in which the Supreme Court held that mere selling of materials to a conspiracy, even where the seller has knowledge that the materials sold would be used illegally, does not render the seller a participant in the conspiracy absent knowledge of the conspiracy itself. Subsequently, however, in Direct Sales Co. v. United States, 319 U.S. 703, 63 S.Ct. 1265, 87 L.Ed. 1674 (1943), the Supreme Court rejected the argument that one who sells articles used by a conspiracy cannot be found guilty of that conspiracy. The Court indicated that one who does sell to a conspirator with knowledge of the conspiracy can become a party to the conspiracy by aiding and abetting it. Id. at 709, 63 S.Ct. 1265. The district court properly charged on this permissible basis of guilt.
In the present case, there is ample evidence in the record to establish that appellant Rossi knowingly participated in the overall conspiracy. Rossi met with Zelmanowitz and Beckley on numerous occasions to discuss the sale of stolen securities, made two such sales to Zelmanowitz and Beckley, was expressly told that the securities would be resold by Zelmanowitz, and supplied Zelmanowitz with false identification in order to facilitate the resale. Similarly, there is ample evidence in the record indicating that appellants Silverman aided and abetted the conspiracy by selling to conspirators with full knowledge that they were dealing with a conspiracy. First, in negotiating and consummating the sale, they dealt directly with two members of the conspiracy, Zelmanowitz and Green. Second, they were clearly informed that Zelmanowitz and Green would deal only in securities which were not on any lists of stolen securities and that Zelmanowitz intended resale through a brokerage firm. Moreover, although they were paid immediately upon delivery of the securities to Zelmanowitz and Green, there was testimony indicating that their receipts would be a certain percentage of the proceeds realized upon resale by the core conspirators, thus linking the success of their venture to the success of the conspiracy’s ultimate resale. The above was sufficient evidence upon which the jury could find that the Silvermans were members of the overall conspiracy.
Appellants also contend that the trial judge erred in refusing to instruct the jury that they should acquit appellants if they found separate conspiracies, rather than a single, overall conspiracy. An examination of the court’s charge satisfies us that this claim is without merit. The court stressed in its charge that the Government alleged a single conspiracy and that the Government must show that each defendant was a “knowing part” of this conspiracy. Moreover, the trial judge carefully instructed the jury that in determining whether a particular defendant was a member of the alleged conspiracy, they should consider only his acts and statements for he could not be bound by the acts or declarations of other participants until, it was established that a conspiracy existed and that he was a participant in it. The risk of guilt transference was thus properly minimized. See United States v. Morado, 454 F.2d 167, 172 (5th Cir.), cert. denied, 406 U.S. 917, 92 S.Ct. 1767, 32 L.Ed.2d 116 (1972); United States v. Calabro, 449 F.2d 885, 894 (2d Cir. 1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 728, 30 L.Ed.2d 735, cert. denied, 405 U.S. 928, 92 S.Ct. 978, 30 L.Ed.2d 801 (1972); United States v. Aiken, 373 F.2d 294, 299 (2d Cir.), cert. denied, 389 U.S. 833, 88 S.Ct. 32, 19 L.Ed.2d 93 (1967).
Since we have found appellants’ other contentions to be without merit, the district court judgment and commitment orders will be affirmed.
. The court has considered and rejected the contentions of defendant Rossi (appellant in No. 73-1197) that:
(a) he was prejudiced by the joinder of offenses and defendants for trial together, and the trial judge erred in denying the numerous motions for severance of the defendants made prior to trial ;
(b) the trial judge erred in denying defendants’ application for mistrial subsequent to the severance of Anthony Salerno from the trial;
(c) subsequent to the severance of Anthony Salerno, there was a change of the elements of the crime charged, which constituted an improper amendment to the indictment ;
id) the trial judge erred in denying defendant’s motion for an order setting aside the verdict of the jury as to Count 1 and for entry of a judgment of acquittal, as the evidence established, at best, that the defendant merely sold to a conspiracy, and was insufficient to warrant his conviction on the conspiracy count;
(e) the trial judge erred in denying defendant’s motion for an order setting aside the verdict and for entry of a judgment of acquittal as there was a variance between the indictment, which charged a single, overall conspiracy, and the proof, which, at best, established several separate and distinct conspiracies ; and
(f) the trial judge should have instructed the jury on multiple conspiracies.
The court has also considered and rejected the contentions of defendants Howard and William Silverman (appellants in Nos. 73-1195 and 73-1196) that:
(a) the totality of the circumstances of the case denied appellants substantial due process of law and a fair and impartial speedy trial, as mandated by the Fifth and Sixth Amendments to the Constitution;
(b) it was prejudicial error for the trial judge to fail to instruct the jury, as requested by appellants, that the scope of the conspiracy count, as establishing one conspiracy or several, was for their determination;
(c) the proof established as a matter of law that the appellants Silverman were not members of the conspiracy alleged in the indictment;
(d) there was a material variance between the allegations of the conspiracy count and the proof submitted in support thereof, insofar as appellants Silverman are concerned ; and
(e) the failure to afford appellants a speedy trial violated their constitutional rights guaranteed by the Sixth Amendment to the Constitution.
Each appellant also expressly adopted the arguments of his co-appellants. The court has considered and rejected each of the above arguments insofar as it relates to each appellant.
. While the appeal in the present case was pending, the appellants filed a motion for remand to the district court so that the district court might pass upon a motion for a new trial based upon newly discovered evidence. This motion will be denied, since it is well-settled procedure that remand is proper only after the district court has ruled on such motion for a new trial. See United States v. Scott, 460 F.2d 45, 48 at n. 3 (3d Cir. 1972); United States v. Conway, 415 F.2d 158, 166 (3d Cir. 1969), cert. denied, 397 U.S. 994, 90 S.Ct. 1131, 25 L.Ed.2d 401 (1970); United States v. Frame, 454 F.2d 1136 (9th Cir.), cert. denied, 406 U.S. 925, 92 S.Ct. 1794, 32 L.Ed.2d 126 (1972).
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 18. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
sc_lcdispositiondirection
|
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
GROH v. RAMIREZ et al.
No. 02-811.
Argued November 4, 2003
Decided February 24, 2004
Stevens, J., delivered the opinion of the Court, in which O’Connor, Souter, Ginsburg, and Breyer, JJ., joined. Kennedy, J., filed a dissenting opinion, in which Rehnquist, C. J., joined, post, p. 566. Thomas, J., filed a dissenting opinion, in which Scalia, J., joined, and in which Rehnquist, C. J., joined as to Part III, post, p. 571.
Richard A. Cordray argued the cause for petitioner. With him on the briefs was Harry Litman.
Austin C. Schlick argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Olson, Assistant Attorney General McCallum, Deputy Solicitor General Clement, Barbara L. Herwig, and Howard S. Scher.
Vincent J. Kozakiewicz argued the cause for respondents. With him on the brief was W. G. Gilbert III.
A brief of amici curiae urging reversal was filed for the State of Texas et al. by Greg Abbott, Attorney General of Texas, R. Ted Cruz, Solicitor General, Barry R. McBee, First Assistant Attorney General, Jay Kim-brough, Deputy Attorney General, and Ryan D. Clinton, Assistant Solicitor General, and by the Attorneys General for their respective States as follows: Gregg D. Renkes of Alaska, M. Jane Brady of Delaware, Charles J. Crist, Jr., of Florida, Mark J. Bennett of Hawaii, Steve Carter of Indiana, J. Joseph Curran, Jr., of Maryland, Mike Hatch of Minnesota, Mike Moore of Mississippi, Brian Sandoval of Nevada, IV A. Drew Edmondson of Oklahoma, D. Michael Fisher of Pennsylvania, Lawrence E. Long of South Dakota, William H. Sorrell of Vermont, Jerry IV Kilgore of Virginia, Christine O. Gregoire of Washington, and Peggy A Lautenschlager of Wisconsin.
Justice Stevens
delivered the opinion of the Court.
Petitioner conducted a search of respondents’ home pursuant to a warrant that failed to describe the “persons or things to be seized.” U. S. Const., Amdt. 4. The questions presented are (1) whether the search violated the Fourth Amendment, and (2) if so, whether petitioner nevertheless is entitled to qualified immunity, given that a Magistrate Judge (Magistrate), relying on an affidavit that particularly described the items in question, found probable cause to conduct the search.
I
Respondents, Joseph Ramirez and members of his family, live on a large ranch in Butte-Silver Bow County, Montana. Petitioner, Jeff Groh, has been a Special Agent for the Bureau of Alcohol, Tobacco and Firearms (ATF) since 1989. In February 1997, a concerned citizen informed petitioner that on a number of visits to respondents’ ranch the visitor had seen a large stock of weaponry, including an automatic rifle, grenades, a grenade launcher, and a rocket launcher. Based on that information, petitioner prepared and signed an application for a warrant to search the ranch. The application stated that the search was for “any automatic firearms or parts to automatic weapons, destructive devices to include but not limited to grenades, grenade launchers, rocket launchers, and any and all receipts pertaining to the purchase or manufacture of automatic weapons or explosive devices or launchers.” App. to Pet. for Cert. 28a. Petitioner supported the application with a detailed affidavit, which he also prepared and executed, that set forth the basis for his belief that the listed items were concealed on the ranch. Petitioner then presented these documents to a Magistrate, along with a warrant form that petitioner also had completed. The Magistrate signed the warrant form.
Although the application particularly described the place to be searched and the contraband petitioner expected to find, the warrant itself was less specific; it failed to identify any of the items that petitioner intended to seize. In the portion of the form that called for a description of the “person or property” to be seized, petitioner typed a description of respondents’ two-story blue house rather than the alleged stockpile of-firearms. The warrant did not incorporate by reference the itemized list contained in the application. It did, however, recite that the Magistrate was satisfied the affidavit established probable cause to believe that contraband was concealed on the premises, and that sufficient grounds existed for the warrant’s issuance.
The day after the Magistrate issued the warrant, petitioner led a team of law enforcement officers, including both federal agents and members of the local sheriff’s department, in the search of respondents’ premises. Although respondent Joseph Ramirez was not home, his wife and children were. Petitioner states that he orally described the objects of the search to Mrs. Ramirez in person and to Mr. Ramirez by telephone. According to Mrs. Ramirez, however, petitioner explained only that he was searching for “‘an explosive device in a box.’” Ramirez v. Butte-Silver. Bow County, 298 F. 3d 1022, 1026 (CA9 2002). At any rate, the officers’ search uncovered no illegal weapons or explosives. When the officers left, petitioner gave Mrs. Ramirez a copy of the search warrant, but not a copy of the application, which had been sealed. The following day, in response to a request from respondents’ attorney, petitioner faxed the attorney a copy of the page of the application that listed the items to be seized. No charges were filed against the Ramirezes.
Respondents sued petitioner and the other officers under Bivens v. Six Unknown Fed. Narcotics Agents; 403 U. S. 388 (1971), and Rev. Stat. § 1979, 42 U. S. C. § 1983, raising eight claims, including violation of the Fourth Amendment. App. 17-27. The District Court entered summary judgment for all defendants. The court found no Fourth Amendment violation, because it considered the case comparable to one in which the warrant contained an inaccurate address, and in such a case, the court reasoned, the warrant is sufficiently detailed if the executing officers can locate the correct house. App. to Pet. for Cert. 20a-22a. The court added that even if a constitutional violation occurred, the defendants were entitled to qualified immunity because the failure of the warrant to describe the objects of the search amounted to a mere “typographical error.” Id., at 22a-24a.
The Court of Appeals affirmed the judgment with respect to all defendants and all claims, with the exception of respondents’ Fourth Amendment claim against petitioner. 298 F. 3d, at 1029-1030. On that claim, the court held that the warrant was invalid because it did not “describe with particularity the place to be searched and the items to be seized,” and that oral statements by petitioner during or after the search could not cure the omission. Id., at 1025-1026. The court observed that the warrant’s facial defect “increased the likelihood and degree of confrontation between the Ramirezes and the police” and deprived respondents of the means “to challenge officers who might have exceeded the limits imposed by the magistrate.” Id., at 1027. The court also expressed concern that “permitting officers to expand the scope of the warrant by oral statements would broaden the area of dispute between the parties in subsequent litigation.” Ibid. The court nevertheless concluded that all of the officers except petitioner were protected by qualified immunity. With respect to petitioner, the court read our opinion in United States v. Leon, 468 U. S. 897 (1984), as precluding qualified immunity for the leader of a search who fails to “read the warrant and satisfy [himself] that [he] understand^] its scope and limitations, and that it is not defective in some obvious way.” 298 F. 3d, at 1027. The court added that “[t]he leaders of the search team must also make sure that a copy of the warrant is available to give to the person whose property is being searched at the commencement of the search, and that such copy has no missing pages or other obvious defects.” Ibid, (footnote omitted). We granted certiorari. 537 U. S. 1231 (2003).
II
The warrant was plainly invalid. The Fourth Amendment states unambiguously that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” (Emphasis added.) • The warrant in this case complied with the first three of these requirements: It was based on probable cause and supported by a sworn affidavit, and it described particularly the place of the search. On the fourth requirement, however," the warrant failed altogether. Indeed, petitioner , concedes that “the warrant . . . was deficient in particularity because it provided no description of the type of evidence sought.” Brief for Petitioner 10.
The fact that the application adequately described the “things to be seized” does not save the warrant from its facial invalidity. The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents. See Massachusetts v. Sheppard, 468 U. S. 981, 988, n. 5 (1984) (“[A] warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional”); see also United States v. Stefonek, 179 F. 3d 1030, 1033 (CA7 1999) (“The Fourth Amendment requires that the warrant particularly describe the things to be seized, not the papers presented to the judicial officer . . . asked to issue the warrant” (emphasis in original)). And for good reason: “The presence of a search warrant serves a high function,” McDonald v. United States, 335 U. S. 451, 455 (1948), and that high function is not necessarily vindicated when some other document, somewhere, says something about the objects of the search, but the contents of that document are neither known to the person whose home is being searched nor available for her inspection. We do not say that the Fourth Amendment prohibits a warrant from cross-referencing other documents. Indeed, most Courts of Appeals have held that a‘court may construe a warrant with reference to a supporting application or affidavit if the warrant uses appropriate words of incorporation, and if the supporting document accompanies the warrant. See, e. g., United States v. McGrew, 122 F. 3d 847, 849-850 (CA9 1997); United States v. Williamson, 1 F. 3d 1134, 1136, n. 1 (CA10 1993); United States v. Blakeney, 942 F. 2d 1001, 1025-1026 (CA6 1991); United States v. Maxwell, 920 F. 2d 1028, 1031 (CADC 1990); United States v. Curry, 911 F. 2d 72, 76-77 (CA8 1990); United States v. Roche, 614 F. 2d 6, 8 (CA1 1980). But in this case the warrant did not incorporate other documents by reference, nor did either the affidavit or the application (which had been placed under seal) accompany the v warrant. Hence, we need not further explore the matter of incorporation.
Petitioner argues that even though the warrant was invalid, the search nevertheless was “reasonable” within the meaning of the Fourth Amendment. He notes that a Magistrate authorized the search on the basis of adequate evidence of probable cause, that petitioner orally described to respondents the items to be seized, and that the search did not exceed the limits intended by the Magistrate and described by petitioner. Thus, petitioner maintains, his search of respondents’ ranch was functionally equivalent to a search authorized by a valid warrant.
We disagree. This warrant did not simply omit a few items from a list of many to be seized, or misdescribe a few of several items. Nor did it make what fairly could be characterized as a mere technical mistake or typographical error. Rather, in the space set aside for a description of the items to be seized, the warrant stated that the items consisted of a “single dwelling residence . . . blue in color.” In other words, the warrant did not describe the items to be seized at all. In this respect the warrant was so obviously deficient that we must regard the search as “warrantless” within the meaning of our case law. See Leon, 468 U. S., at 923; cf. Maryland v. Garrison, 480 U. S. 79, 85 (1987); Steele v. United States, 267 U. S. 498, 503-504 (1925). “We are not dealing with formalities.” McDonald, 335 U. S., at 455. •Because “‘the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion’” stands ‘“[a]t the very core’ of the Fourth Amendment,” Kyllo v. United States, 533 U. S. 27, 31 (2001) (quoting Silverman v. United States, 365 U. S. 505, 511 (1961)), our cases have firmly established the “ ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable,” Payton v. New York, 445 U. S. 573, 586 (1980) (footnote omitted). Thus, “absent exigent circumstances, a warrantless entry to search for weapons or contraband is unconstitutional even when a felony has been committed and there is probable cause to believe that incriminating evidence will be found within.” Id., at 587-588 (footnote omitted). See Kyllo, 533 U. S., at 29; Illinois v. Rodriguez, 497 U. S. 177, 181 (1990); Chimel v. California, 395 U. S. 752, 761-763 (1969); McDonald, 335 U. S., at 454; Johnson v. United States, 333 U. S. 10 (1948).
We have clearly stated that the presumptive rule against warrantless searches applies with equal force to searches whose only defect is a lack of particularity in the warrant. In Sheppard, for instance, the petitioner argued that even though the warrant was invalid for lack of particularity, “the search was constitutional because it was reasonable within the meaning of the Fourth Amendment.” 468 U. S., at 988, n. 5. In squarely rejecting that position, we explained:
“The uniformly applied rule is that a search conducted pursuant to a warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional. Stanford v. Texas, 379 U. S. 476 (1965); United States v. Cardwell, 680 F. 2d 75, 77-78 (CA9 1982); United States v. Crozier, 674 F. 2d 1293, 1299 (CA9 1982); United States v. Klein, 565 F. 2d 183, 185 (CAI 1977); United States v. Gardner, 537 F. 2d 861, 862 (CA6 1976); United States v. Marti, 421 F. 2d 1263, 1268-1269 (CA2 1970). That rule is in keeping with the well-established principle that ‘except in certain carefully defined classes of cases, a search of private property without proper consent is “unreasonable” unless it has been authorized by a valid search warrant.’ Camara v. Municipal Court, 387 U. S. 523, 528-529 (1967). See Steagald v. United States, 451 U. S. 204, 211-212 (1981); Jones v. United States, 357 U. S. 493, 499 (1958).” Ibid.
Petitioner asks us to hold that a search conducted pursuant to a warrant lacking particularity should be exempt from the presumption of unreasonableness if the goals served by the particularity requirement are otherwise satisfied. He maintains that the search in this case satisfied those goals — which he says are “to prevent general searches, to prevent the seizure of one thing under a warrant describing another, and to prevent warrants from being issued on vague or dubious information,” Brief for Petitioner 16 — because the scope of the search did not exceed the limits set forth in the application. But unless the particular items described in the affidavit are also set forth in the warrant itself (or at least incorporated by reference, and the affidavit present at the search), there can be no written assurance that the Magistrate actually found probable cause to search for, and to seize, every item mentioned in the affidavit. See McDonald, 335 U. S., at 455 (“Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done ... so that an objective mind might weigh the need to invade [the citizen’s] privacy in order to enforce the law”). In this case, for example, it is at least theoretically possible that the Magistrate was satisfied that the search for weapons and explosives was justified by the showing in the affidavit, but not convinced that any evi-dentiary basis existed for rummaging through respondents’ files and papers for receipts pertaining to the purchase or manufacture of such items. Cf. Stanford v. Texas, 379 U. S. 476, 485-486 (1965). Or, conceivably, the Magistrate might have believed that some of the weapons mentioned in the affidavit could have been lawfully possessed and therefore should not be seized. See 26 U. S. C. §5861 (requiring registration, but not banning possession of, certain firearms). The mere fact that the Magistrate issued a warrant does not necessarily establish that he agreed that the scope of the search should be as broad as the affiant’s request. Even though petitioner acted with restraint in conducting the search, “the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer.” Katz v. United States, 389 U. S. 347, 356 (1967).
We have long held, moreover, that the purpose of the particularity requirement is not limited to the prevention of general searches. See Garrison, 480 U. S., at 84. A particular warrant also “assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.” United States v. Chadwick, 433 U. S. 1, 9 (1977) (citing Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523, 532 (1967)), abrogated on other grounds, California v. Acevedo, 500 U. S. 565 (1991). See also Illinois v. Gates, 462 U. S. 213, 236 (1983) (“[Possession of a warrant by officers conducting an arrest or search greatly reduces the perception of unlawful or intrusive police conduct”).
Petitioner argues that even if the goals of the particularity requirement are broader than he acknowledges, those goals nevertheless were served because he orally described to respondents the items for which he was searching. Thus, he submits, respondents had all of the notice that a proper warrant, would have accorded. But this case presents no occasion even to reach this argument, since respondents, as noted above, dispute petitioner’s account. According to Mrs. Ramirez, petitioner stated only that he was looking for an “'explosive device in a box.’” 298 F. 3d, at 1026. Because this dispute is before us on petitioner’s motion for summary judgment, App. to Pet. for Cert. 13a, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in [her] favor,” Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 255 (1986) (citation omitted). The posture of the case therefore obliges us to credit Mrs. Ramirez’s account, and we find that petitioner’s description of “ ‘an explosive device in a box’ ” was little better than no guidance at all. See Stefonek, 179 F. 3d, at 1032-1033 (holding that a search warrant for “‘evidence of crime’” was “[s]o open-ended” in its description that it could “only be described as a general warrant”).
It is incumbent on the officer executing a search warrant to ensure the search is lawfully authorized and lawfully conducted. Because petitioner did not have in his possession a warrant particularly describing the things he intended to seize, proceeding with the search was clearly “unreasonable” under the Fourth Amendment. The Court of Appeals correctly held that the search was unconstitutional.
III
Having concluded that a constitutional violation occurred, we turn to the question whether petitioner is entitled to qualified immunity despite that violation. See Wilson v. Layne, 526 U. S. 603, 609 (1999). The answer depends on whether the right that was transgressed was “ ‘clearly established’ ” — that is, “whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U. S. 194, 202 (2001).
Given that the particularity requirement is set forth in the text of the Constitution, no reasonable officer could believe that a warrant that plainly did not comply with that requirement was valid. See Harlow v. Fitzgerald, 457 U. S. 800, 818-819 (1982) (“If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct”). Moreover, because petitioner himself prepared the invalid warrant, he may not argue that he reasonably •relied on the Magistrate’s assurance that the warrant contained an adequate description of the things to be seized and was therefore valid. Cf. Sheppard, 468 U. S., at 989-990. In fact, the guidelines of petitioner’s own department placed him on notice that he might be liable for executing a manifestly invalid warrant. An ATF directive in force at the time of this search warned: “Special agents are liable if they exceed their authority while executing a search warrant and must be sure that a search warrant is sufficient on its face even when issued by a magistrate.” Searches and Examinations, ATF Order O 3220.1(7)(d) (Feb. 13, 1997). See also id., at 3220.1(23)(b) (“If any error or deficiency is discovered and there is a reasonable probability that it will invalidate the warrant, such warrant shall not be executed. The search shall be postponed until a satisfactory warrant has been obtained”). And even a cursory reading of the warrant in this case — perhaps just a simple glance — would have revealed a glaring deficiency that any reasonable police officer would have known was constitutionally fatal.
No reasonable officer could claim to be unaware of the basic rule, well established by our cases, that, absent consent or exigency, a warrantless search of the home is presumptively unconstitutional. See Payton, 445 U. S., at 586-588. Indeed, as we noted nearly 20 years ago in Sheppard: “The uniformly applied rule is that a search conducted pursuant to a-warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional.” 468 U. S., at 988, n. 5. Because not a word in any of our cases would suggest to a reasonable officer that this case fits within any exception to that fundamental tenet, petitioner is asking us, in effect, to craft a new exception. Absent any support for such an exception in our cases, he cannot reasonably have relied on an expectation that we would do so.
Petitioner contends that the search in this case was the product, at worst, of a lack of due care, and that our case law requires more than negligent behavior before depriving an official of qualified immunity. See Malley v. Briggs, 475 U. S. 335, 341 (1986). But as we observed in the companion cáse to Sheppard, “a warrant may be so facially deficient— i. e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid.” Leon, 468 U. S., at 923. This is such a case.
Accordingly, the judgment of the Court of Appeals is affirmed.
• It is so ordered.
Possession of these items, if unregistered, would violate 18 U. S. C. § 922(o)(l) and 26 U. S. C. §5861.
The warrant stated: “[Tlhere is now ises] a certain person or property, namely [a] single dwelling residence two story in height which is blue in color and has two additions attached to the east. The front entrance to the residence faces in a southerly direction.” App. to Pet. for Cert. 26a.
The affidavit was sealed. Its sufficiency is not disputed.
For this reason petitioner’s argument that any constitutional error was committed by the Magistrate, not petitioner, is misplaced. In Massachusetts v. Sheppard, 468 U. S. 981 (1984), we suggested that “the judge, not the police officers,” may have committed “(a]n error of constitutional dimension,” id., at 990, because the judge had assured the officers requesting the warrant that he would take the steps necessary to conform the warrant to constitutional requirements, id., at 986. Thus, “it was not unreasonable for the police in [that] case to rely on the judge’s assurances that the warrant authorized the search they had requested.” Id., at 989, n. 6. In this case, by contrast, petitioner did not alert the Magistrate to the defect in the warrant that petitioner had drafted, and we therefore cannot know whether the Magistrate was aware of the scope of the search he was authorizing. Nor would it have been reasonable for petitioner to rely on a warrant that was so patently defective, even if the Magistrate was aware of the deficiency. See United States v. Leon, 468 U. S. 897, 915, 922, n. 23 (1984).
It is true, as petitioner points out, that neither the Fourth Amendment nor Rule 41 of the Federal Rules of Criminal Procedure requires the executing officer to serve the warrant on the owner before commencing the search. Rule 41(f)(3) provides that “ [t]he officer executing the warrant must: (A) give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken; or (B) leave a copy of the warrant and receipt at the place where the officer took the property.” Quite obviously, in some circumstances— a surreptitious search by means of a wiretap, for example, or the search of empty or abandoned premises — it will be impracticable or imprudent for the officers to show the warrant in advance. See Katz v. United States, 389 U. S. 347, 355, n. 16 (1967); Ker v. California, 374 U. S. 23, 37-41 (1963). Whether it would be unreasonable to refuse a request to furnish the warrant at the outset of the search when, as in this case, an occupant of the premises is present and poses no threat to the officers’ safe and effective performance of their mission, is a question that this case does not present.
The Court of Appeals’ decision is consistent with this principle. Petitioner mischaracterizes the court’s decision when he contends that it imposed a novel proofreading requirement on officers executing warrants. The court held that officers leading a' search team must “mak[e] sure that they have a proper warrant that in fact authorizes the search and seizure they are about to conduct.” 298 F. 3d 1022, 1027 (CA9 2002). That is not a duty to proofread; it is, rather, a duty to ensure that the warrant conforms to constitutional requirements.
We do not suggest that an official is deprived of qualified immunity whenever he violates an internal guideline. We refer to the ATF Order only to underscore that petitioner should have known that he should not execute a patently defective warrant.
Although both Sheppard and Leon involved the application of the “good faith” exception to the Fourth Amendment’s general exclusionary rule, we have explained that “the same standard of objective reasonableness that we applied in the context of a suppression hearing in Leon defines the qualified immunity accorded an officer.” Malley v. Briggs, 475 U. S. 335, 344 (1986) (citation omitted).
Justice Kennedy argues in dissent that we have not allowed “ ‘ample room for mistaken judgments,’” post, at 571 (quoting Malley, 475 U. S., at 343), because “difficult and important tasks demand the officer’s full attention in the heat of an ongoing and often dangerous criminal investigation,” post, at 568. In this case, however, petitioner does not contend that any sort of exigency existed when he drafted the affidavit, the warrant application, and the warrant, or when he conducted the search. This is not the situation, therefore, in which we have recognized that “officers in the dangerous and difficult process of making arrests and executing search warrants” require “some latitude.” Maryland v. Garrison, 480 U. S. 79, 87 (1987).
Nor are we according “the correctness of paper forms” a higher status than “substantive rights.” Post, at 571. As we have explained, the Fourth Amendment’s particularity requirement assures the subject of the search that a magistrate has duly authorized the officer to conduct a search of limited scope. This substantive right is not protected when the officer fails to take the time to glance at the authorizing document and detect a glaring defect that Justice Kennedy agrees is of constitutional magnitude, post this page.
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_usc2sect
|
501
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 11. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
NATIONAL LABOR RELATIONS BOARD v. KILLOREN.
Nos. 11839, 11875.
Circuit Court of Appeals, Eighth Circuit.
Sept. 3. 1941.
Rehearing Denied Oct. 11, 1941.
VAN VALKENBURGH, Circuit Judge, dissenting.
A. Norman Somers, of Washington, D. C. (Robert B. Watts, Gen. Counsel, and Malcolm F. Halliday, Asst. Gen. Counsel, both of Washington, D. C., on the brief), for appellant.
Harry S. Gleick, of St. Louis, Mo. (Jones, Hocker, Gladney & Grand, and Gleick & Strauss, all of St. Louis, Mo., on the brief), for appellee.
Before WOODROUGH, JOHNSEN, and VAN VALKENBURGH, Circuit Judges.
JOHNSEN, Circuit Judge.
The controlling questions are (1) wheth. er a back pay allowance in an order of the National Labor Relations Board, whose enforcement has been directed by the Circuit Court of Appeals, is a provable debt in a subsequent bankruptcy proceeding; (2) if so, whether it is a debt owing to the Board in the sense that the Board is entitled to file and assert a proof of claim therefor; and (3), if it is such a provable debt, owing to the Board, whether it is entitled to a priority under section 64 of the Bankruptcy Act, 52 Stat. 874, 11 U.S.C.A. § 104.
The Hamilton-Brown Shoe Company, on complaint and hearing, was found to have engaged in unfair labor practices under the National Labor Relations Act, 29 U.S. C.A. § 151 et seq., and was ordered by the National Labor Relations Board, among other things, to make whole the employees who had been discriminated against, “by payment to each of them, respectively, of a sum equal to that which each would normally have earned as wages during the period from the date of the discrimination against him to the date of the offer of reinstatement or placement upon the preferential (rehiring) list * * *, less his net earnings during said period.” On a petition for review, we affirmed this portion of the Board’s order and directed its enforcement. See Hamilton-Brown Shoe Co. v. National Labor Relations Board, 8 Cir., 104 F.2d 49.
After entry of the Board’s order, and while the petition for review was pending before this Court, the Company instituted a proceeding for corporate reorganization under Chapter X of the Chandler Act, 11 U.S.C.A. § 501 et seq. Following our af-firmance of the Board’s order as to reinstatement of employees and back pay allowances, the Company was adjudicated a bankrupt. The Board then filed a proof of claim with the Referee, in the name of the Board, for the back pay allowances, total-ling $161,160.17, due 168 employees discriminated against under its order, setting out the name of each and the amount which he was entitled to receive.
On motion of the trustee, the Referee expunged the proof of claim from the record, upon the ground that a back pay allowance under the National Labor Relations Act did not constitute a provable debt or claim in bankruptcy, capable of being asserted by the Board or any one else. His memorandum opinion indicates that he conceived that the sole purpose of the Board’s order and its only power under the Act were to prevent the Company “as a going concern from obstructing or again obstructing the flow of interstate commerce”, and that, since the Company had gone into bankruptcy, “there is no reason for affirmative remedial action to carry out the purposes of the Act”, and “the payment of so-called back pay * * * is not now required by the Act”.
On the Board’s petition for review, the District Court approved and confirmed the Referee’s order, and the Board has appealed.
We think the Referee and the District Court erred.
The validity of the Board’s allowance of back pay and the enforcibi'lity thereof were conclusively settled by our order affirming it and directing its enforcement. Such a valid allowance was, under the provisions of the Act, not a punitive but a remedial action. Its purpose was, not by way of penalty against the particular employer, but in furtherance of the policies of the Act, to restore as nearly as possible the status quo which would have existed, if the discriminating wrong had not been committed. National Labor Relations Board v. Remington Rand Co., 2 Cir., 94 F.2d 862, 872, “Making the workers whole for losses suffered on account of an unfair labor practice is part of the vindication of the public policy which the Board enforces.” Phelps Dodge Corporation v. National Labor Relations Board, 313 U.S. 177, 197, 61 S.Ct. 845, 854, 85 L.Ed. 1271, 133 A.L.R. 1217. It is self-evident, we think, that it would materially aid in effectuating the policies of the Act, for the workmen in industry generally to feel assured that they would be protected, as fully as soundly possible, not merely in the exercise of their right of self-organization and designation of representatives of their own choosing, but against the economic consequences of a legitimate assertion of those rights. The experience of the Board, as reflected in its decisions, demonstrates the need for this assurance.
There could be no real force in such an assurance, however, if the Board’s order awarding back pay in a particular case would not actually be made effectual. An unvindicated or paper decree would hardly tend to encourage self-organization efforts and peaceful industrial relations. And so, public policy cannot permit such a valid order of the Board to be thwarted or escaped, if there is any sound way to prevent it. The mere fact that an employer may cease to do business certainly does not end the public interest involved in seeing that a back pay award under the Act is satisfied. The public wrong that has been done cannot be regarded as being righted by the simple expedient of the employer’s resort to bankruptcy, so that it can be judicially declared that payment of the back pay award will no longer serve any useful purpose in effectuating the policies of the Act, as was assumed by the Referee and the District Court.
The order of this Court, affirming and directing payment of the back pay award, stamj ed it with finality as a definite and enforcible obligation against the employer. 29 U.S.C.A. § 160(e); Myers v. Bethlehem Shipbuilding Corporation, 303 U.S. 41, 48, 49, 58 S.Ct. 459, 82 L.Ed. 638; In re National Labor Relations Board, 304 U.S. 486, 495, 58 S.Ct. 1001, 82 L.Ed. 1482. From that time on at least, it became for all applicable legal purposes, a retroactive and accumulating “indebtedness due to the [Board] for and on behalf of the * * * employees.” National Labor Relations Board v. Carlisle Lumber Co., 9 Cir., 108 F.2d 188, 189.
It was an indebtedness arising out of an obligation imposed by statute; hence was quasi contractual in nature; constituted therefore a claim on an implied contract under section 63, sub. a (4) of the Bankruptcy Act, 11 U.S.C.A. 103, sub. a (4) ; and so was a provable debt in bankruptcy. United States v. Bernstein, 8 Cir., 16 F.2d 233, 235; Brown v. O’Keefe, 300 U.S. 598, 606, 57 S.Ct. 543, 81 L.Ed. 827; National Labor Relations Board v. Piqua Munising Wood Products Co., 6 Cir., 109 F.2d 552, 556.
It was an obligation or indebtedness of a public character, which the Board alone was authorized to enforce. Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 265, 266, 60 S.Ct. 561, 84 L.Ed. 738; National Labor Relations Board v. Hearst, 9 Cir., 102 F.2d 658, 664; Agwilines, Inc., v. National Labor Relations Board, 5 Cir., 87 F.2d 146, 150. “The Board acts in a public capacity to give effect to the declared public policy of the Act * * National Licorice Co. v. National Labor Relations Board, 309 U.S. 350, 362, 60 S.Ct. 569, 576, 84 L.Ed. 799. The Board’s status with respect to the back pay allowances was, as to the employees entitled to the benefits of the order, in the nature of a plenary trusteeship. Since the Act constituted it the only party entitled to seek enforcement, it could properly be said to hold the full legal title to the obligations which the order created, within any technical concept that might be necessary in the situation. The Board was therefore a creditor under the Bankruptcy Act, within the definition of § 1(11), 11 U.S.C.A. § 1(11), providing that " ‘Creditor’ shall include anyone who owns a debt, demand, or claim provable in bankruptcy, and may include his duly authorized agent, attorney, or proxy”. Such a recognition is not in conflict, but in harmony, with the provisions of the National Labor Relations Act and its public purposes. The jfact that under the terms of the Board’s order, the employer might have discharged his legal obligation, by making payment to the employees direct, does not, as the trustee in bankruptcy attempts to argue, affect the Board’s right to seek enforcement in its own name, where no such satisfaction has in fact occurred.
Nor is there any merit in the trustee’s contention that the amount of the claim was undeterminable, for provable purposes in bankruptcy, because no offer of reinstatement ever had-been or could now be made to the employees. The claim was a cumulating one, up to the time of bankruptcy at least, and, if the effect of that proceeding was to nullify, or render incapable of enforcement, the reinstatement obligation, it certainly did not wipe out or make undeterminable the amount of back pay, payable to that date. The right to back pay, under a valid order of the Board, obviously does not depend upon whether the reinstatement obligation is satisfied. If reinstatement becomes impossible, the back pay obligation is nevertheless enforcible for the period, during which the right to reinstatement existed. Under 11 U.S.C.A. § 638, the adjudication in bankruptcy in this case was effective from the date the reorganization proceedings had been instituted, and the Board clearly had the right to compute and file a claim, as it did, for the back pay that had accumulated to that date.
The Board urges that its claim should be given priority under § 64, sub. a (5) of the Bankruptcy Act, 11 U.S.C.A. § 104, sub. a (5), as a debt owing to the United States, and so entitled to preference under R.S. § 3466, 3-1 U.S.C.A. § 191. It relies upon Bramwell v. United States Fidelity & Guaranty Co., 269 U.S. 483, 46 S.Ct. 176, 70 L.Ed. 368, where monies intended for the benefit of Indian wards, which had been deposited by the Superintendent of the Indian Reservation in a bank that subsequently became insolvent, were held to be entitled to priority as a debt owing to the United States.
The purpose of a back pay allowance under the National Labor Relations Act, when awarded by the Board to effectuate the policies of the Act, is, as has been indicated above, to leave an employee, as nearly as possible, in the same situation that he would have occupied, if there had been no discrimination against him. As to the employee at least, it is, in a practical and sound legal sense, nothing more or less than wages. It is. compensation to which he is entitled, by reason of his continued status under the Act as an employee, and which the Act and the order of the Board regard him as having constructively earned. The language of the Act specifically denominates it “back pay”. It ought not therefore, equitably or in the spirit of the Act, to be given either a superior or a subordinate legal position to the wages of other regular employees, if there is any sound way to avoid doing so. To elevate it, for any purpose, above the corresponding rights of other employees would hardly tend to further industrial peace, which is the fundamental aim of the National Labor Relations Act. Similarly, to place it on a level in any degree lower than that of regular wage rights would deny it the position to which its denomination in the Act entitles it, and would dilute the equalizing purpose for which it was intended.
Any sound consideration of the question of priorities must therefore have regard for the position and rights of all employees in the bankruptcy situation. Under § 64 of the Bankruptcy Act, 11 U.S.C.A. § 104, wage claims “not to exceed $600 to each claimant, which have been earned within three months before the date of the commencement of the proceeding”, are placed in the class of second priority. Debts owing to the United States, in their full amount, are placed in the class of fifth priority. If a back pay allowance is not to have the advantage, with other wage claims, of the second priority, it necessarily. is in an unequal position as to the amount for which this high preference is allowed by the Bankruptcy Act. On the other hand, if there are unpaid wage claims beyond the amount of such a preference, other employees, with the status of mere general creditors as to their remaining balances, would be prejudiced by having back pay allowances paid in full as debts due the United States in the fifth priority.
The record does not indicate anything as to the amount of wage claims that have been filed in the present proceeding, or as to the value of the estate. In searching for the sound general principle, however, that should govern such a situation, we necessarily are not so much concerned with the facts of an individual case, as with the realities and probabilities of the field as a whole. We are of the opinion that a back pay allowance should accordingly be treated the same as any regular wage claim, for bankruptcy purposes, unless we are prevented from doing so by the provisions of the Bankruptcy Act.
We have declared above that a back pay allowance, under the provisions of the National Labor Relations Act, is intended as, and constitutes, wages which a workman has constructively earned by reason of his continued status as an employee. This view clearly brings it within the operation of § 64, sub. a(2), 11 U.S.C.A. § 104, sub. a (2), governing wage priorities. If the Act had authorized such an allowance to be made in the nature of damages, a different situation would perhaps be presented. Congress has, however, specifically made it “back pay” in a continued employment status, and this sufficiently constitutes it “wages earned” to eliminate legal shadows.
Nor is any difficulty presented by the language of the Bankruptcy Act, “not to exceed $600 to each claimant (Italics supplied.) The Board is, in a sufficient sense, a separate trustee and claimant as to each employee involved, and it has duly itemized the amount to which each individual is entitled. Whether correct computations have been made and credits given is, of course, a proper question for the Referee, when the claim is ultimately considered. '
Under the position here taken, we deem it unnecessary to determine whether an award of back pay may, for any other purpose, be regarded as a debt due to the United States.
The constitutional questions suggested are, under the interpretation made of the Act, sufficiently answered by National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352 and Agwi-lines, Inc., v. National Labor Relations Board, 5 Cir., 87 F.2d 146, and require no further discussion here.
The order of the District Court is reversed, and the cause is remanded for further proceedings in accordance with this opinion.
Reversed and remanded.
Compare National Labor Relations Board v. Colten, 6 Cir., 105 F.2d 179, where the death of a partner and the resulting dissolution of the partnership were held not to nullify the Board’s order of reinstatement and back pay.
Thus, it has been held that only the Board has the right to institute proceedings to punish for contempt of the court decree enforcing the Board’s order (Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 265, 266, 60 S.Ct. 561, 84 L.Ed. 738), and to compromise an award of back pay to a wrongfully discharged employee (National Labor Relations Board v. American Potash & Chemical Corp., 9 Cir., 113 F.2d 232, 129 A.L.R. 874).
The Board’s brief states that its present practice is for the Board or one of its agents to receive back pay payments, and to make distribution of the money to the entitled employees.
In National Labor Relations Board v. Hearst, 9 Cir., 102 F.2d 658, 664, the estate of a deceased employee, who bad been ordered reinstated with back pay, was held entitled to the back pay that bad. accumulated up to the time of bis death.
It appears also from the opinion in Phelps Dodge Corporation v. National Labor Relations Board, supra, that the Board in that case ordered one of the strikers “made whole for loss in wages up to the time he became unemployable.”
Section 64, sub. a in part provides: “a. The debts to have priority, in ad-vanee of the payment of dividends to creditors, and to be paid in full out of bankrupt estates, and the order of payment, shall be * * * (2) wages, not to exceed $600 to each claimant, which have .been earned within three months before the date of the commencement of the proceeding, due to workmen, servants, clerks, or traveling or city salesmen on salary or commission basis, whole or part time, whether or not selling exclusively for the bankrupt; * * * (5) debts owing to any person, including the United States, who by the laws of the United States is entitled to priority * *
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 11? Answer with a number.
Answer:
|
songer_casetyp1_2-2
|
C
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "civil rights".
Joseph T. WATKINS, on behalf of himself and others similarly situated, Appellant, v. Walter E. WASHINGTON, Mayor for the District of Columbia, et al.
No. 74-1316.
United States Court of Appeals, District of Columbia Circuit.
Argued Dec. 4, 1974.
Decided Feb. 6, 1975.
Rehearing Denied March 10, 1975.
Donald V. Watkins, Montgomery, Ala., for appellant.
David P. Sutton, Asst. Corp. Counsel for the District of Columbia, with whom C. Francis Murphy, Corp. Counsel, Louis P. Robbins, Principal Asst. Corp. Counsel and Richard W. Barton, Asst. Corp. Counsel were on the brief for appellees.
Before BASTIAN, Senior Circuit Judge, and ROBB and WILKEY, Circuit Judges.
PER CURIAM:
The appellant Watkins originally brought this action in the District Court alleging racial discrimination in the employment and personnel policies of the Housing Division of the Department of Licenses and Inspections, now the Department of Economic Development, of the District of Columbia, and seeking an award of back pay and declaratory and injunctive relief. The district judge entered judgment awarding back pay and denying all other requested relief. On appeal this court directed the District Court (1) to remand the case for further administrative proceedings on Watkins’ promotional status and (2) to enter an order enjoining further racial discrimination by the Housing Division and ordering that steps be taken to eliminate the effects of past discrimination. Watkins v. Washington, 153 U.S.App.D.C. 298, 472 F.2d 1373 (1972).
On remand the district judge on February 28, 1973 entered an order as directed. On August 24, 1973 a hearing committee appointed pursuant to the court’s order determined
that Mr. Watkins is entitled to a GS-12 position in the Housing Division at this time and should be considered for nothing less unless he personally is willing to accept a grade 11.
The panel respectfully requests that this offer of a GS-12 position be offered him, not only because he is qualified for such a position, but because had he not been the object of such discrimination which the court found to be practiced against him, he would have no doubt attained an even higher grade just on his initiative and merit.
Although the committee’s recommendation was subject to review by the Commissioner of the District of Columbia, the Director of the District of Columbia Office of Human Rights, Department of Economic Development, voluntarily offered Watkins a GS-11 position on October 15, 1973, which Watkins declined.
On November 26, 1973 Watkins filed a pro se motion for enforcement of the order entered by the District Court on remand from this court. Ruling on the motion, the District Court enjoined the government from offering any position from GS-12 through GS — 15 to any person other than Watkins while the hearing committee’s recommendation was pending final action. However, the judge denied Watkins’ motions for enforcement and discovery in aid of enforcement. Watkins appealed.
During the pendency of the appeal in this court the Commissioner of the District of Columbia on June 13, 1974 issued his final decision approving the hearing committee recommendations and ordering that the Department of Economic Development
1. Promote Mr. Watkins to the position of GS — 11 Housing Improvement Specialist, now available in the Housing Division.
2. Offer Mr. Watkins the next available GS-12 position in the Housing Division.
On July 19, 1974 Watkins was appointed to the GS — 12 position of Supervisory Housing Improvement Specialist.
Watkins suggests that the government has delayed in complying with the District Court’s order remanding the case for further administrative proceedings regarding his promotional status. The government answers that Watkins is himself responsible for the delay. Our examination of the record indicates that the government is correct. The order entered February 28, 1973 required that a hearing panel be convened within thirty days. Such a panel was convened, the membership being designated jointly by the government and Watkins through his attorney. Watkins, however, was dissatisfied with the panel, and on April 4, 1973 informed the government counsel that he had dismissed his counsel and wished a new panel appointed. There is no indication that the government delayed in appointing a new panel suitable to Watkins, that the panel delayed in making its recommendations, or that the Commissioner delayed in issuing his final decision.
Watkins charges for the first time on this appeal that a GS — 12 position was vacant both at the time the hearing committee issued its recommendation and at the time he brought his motion for enforcement, and that the government did not disclose the existence of the vacancy. In support of this contention Watkins filed in this court an affidavit by one Victor Brown who was designated by Watkins to sit on the hearing committee. On the other hand the record contains an affidavit by George Stover, Personnel Officer for the Department of Economic Development, stating that no such position was vacant at the time the hearing committee issued its recommendations, or at any time since. This factual dispute cannot be resolved in this court.
Watkins argues that even if no positions higher than the GS — 11 position he refused were vacant at the time he brought his motion for enforcement, positions could have been made available by reclassification under 5 U.S.C. § 5107, by an ad hoc adjustment of pay and other benefits, or by a supplemental stipend to be paid out of funds received from philanthropic sources. We think none of these suggestions is feasible. In any case the argument has been mooted by Watkins’ appointment to a GS — 12 position.
Watkins argues that his promotion should be retroactive to the time he filed his original action and that he should be awarded back pay from that date. We think this is not required, either by our previous decision, or by the District Court’s order of February 28, 1973, or by the recommendations of the hearing committee as approved by the Commissioner. Under the District Court’s original judgment entered in this case Watkins has received back pay for the time during which the Housing Division discriminated against him. He has been promoted to the first vacant GS — 12 position, as recommended by the hearing committee and Commissioner. He has accordingly received all the relief to which he is entitled under his original action and the judgment entered therein which he now seeks to have enforced.
In summary, Watkins argues that the district judge abused his discretion by his ruling on the motion to enforce judgment. We do not agree.
The judgment is affirmed.
Question: What is the specific issue in the case within the general category of "civil rights"?
A. civil rights claims by prisoners and those accused of crimes
B. voting rights, race discrimination, sex discrimination
C. other civil rights
Answer:
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sc_issue_8
|
17
|
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.
THOMAS, ADMINISTRATOR, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY v. UNION CARBIDE AGRICULTURAL PRODUCTS CO. et al.
No. 84-497.
Argued March 26, 1985
Decided July 1, 1985
O’Connor, J., delivered the opinion of the Court, in which Burger, C. J., and White, Powell, and Rehnquist, JJ., joined. Brennan, J., filed an opinion concurring in the judgment, in which Marshall and Blackmun, JJ., joined, post, p. 594. Stevens, J., filed an opinion concurring in the judgment, post, p. 602.
Deputy Solicitor General Wallace argued the cause for appellant. With him on the briefs were Solicitor General Lee, Acting Assistant Attorney General Flint, Jerrold J. Ganzfried, Anne S. Almy, Jacques B. Gelin, John A. Bryson, and Gerald H. Yantada.
Kenneth W. Weinstein argued the cause for appellees. With him on the brief were Lawrence S. Ebner and Stanley W. Landfair.
David B. Weinberg and William R. Weissman filed a brief for Griffin Corp. et al. as amici curiae urging reversal.
Wilkes C. Robinson filed a brief for Gulf and Great Plains Legal Foundation as amicus curiae urging affirmance.
Thomas H. Truitt, David R. Berz, and Jeffrey F. Liss filed a brief for PPG Industries, Inc., as amicus curiae.
Justice O’Connor
delivered the opinion of the Court.
This case requires the Court to revisit the data-consideration provision of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 61 Stat. 163, as amended, 7 U. S. C. §136 et seq., which was considered last Term in Ruckelshaus v. Monsanto Co., 467 U. S. 986 (1984). Monsanto examined whether FIFRA’s data-consideration provision effects an uncompensated taking in violation of the Fifth Amendment. In this case we address whether Article III of the Constitution prohibits Congress from selecting binding arbitration with only limited judicial review as the mechanism for resolving disputes among participants in FIFRA’s pesticide registration scheme. We conclude it does not and reverse the judgment below.
H-i
The Court’s opinion in Monsanto details the development of FIFRA from the licensing and labeling statute enacted in 1947 to the comprehensive regulatory statute of the present. This case, like Monsanto, concerns the most recent amendment to FIFRA, the Federal Pesticide Act of 1978, 92 Stat. 819 (1978 Act), which sought to correct problems created by the Federal Environmental Pesticide Control Act of 1972, 86 Stat. 973 (1972 Act), itself a major revision of prior law. See Ruckelshaus v. Monsanto Co., supra, at 991-992.
A
As a precondition for registration of a pesticide, manufacturers must submit research data to the Environmental Protection Agency (EPA) concerning the product’s health, safety, and environmental effects. The 1972 Act established data-sharing provisions intended to streamline pesticide registration procedures, increase competition, and avoid unnecessary duplication of data-generation costs. S. Rep. No. 92-838, pp. 72-73 (1972) (1972 S. Rep.). Some evidence suggests that before 1972 data submitted by one registrant had “as a matter of practice but without statutory authority, been considered by the Administrator to support the registration of the same or a similar product by another registrant.” Ruckelshaus v. Monsanto Co., supra, at 1009, n. 14. Such registrations were colloquially known as “me too” or “follow-on” registrations. Section 3(c)(1)(D) of the 1972 Act provided statutory authority for the use of previously submitted data as well as a scheme for sharing the costs of data generation.
“In effect, the provision instituted a mandatory data-licensing scheme. The amount of compensation was to be negotiated by the parties, or, in the event negotiations failed, was to be determined by the EPA, subject to judicial review upon instigation of the original data submitter. The scope of the 1972 data-consideration provision, however, was limited, for any data designated as ‘trade secrets or commercial or financial information’... could not be considered at all by EPA to support another registration unless the original submitter consented.” Ruckelshaus v. Monsanto Co., supra, at 992-993.
Congress enacted the original data-compensation provision in 1972 because it believed “recognizing a limited proprietary interest” in data submitted to support pesticide registrations would provide an added incentive beyond statutory patent protection for research and development of new pesticides. H. R. Rep. No. 95-663, pp. 17-18 (1977); S. Rep. No. 95-334, pp. 7, 34-40 (1977) (1977 S. Rep.). The data submitters, however, contended that basic health, safety, and environmental data essential to registration of a competing pesticide qualified for protection as a trade secret. With EPA bogged down in cataloging data and the pesticide industry embroiled in litigation over what types of data could legitimately be designated “trade secrets,’’ new pesticide registrations “ground to a virtual halt.” Id., at 3.
The 1978 amendments were a response to the “logjam of litigation that resulted from controversies over data compensation and trade secret protection.” Ibid. Congress viewed data-sharing as essential to the registration scheme, id., at 7, but concluded EPA must be relieved of the task of valuation because disputes regarding the compensation scheme had “for all practical purposes, tied up their registration process” and “[EPA] lacked the expertise necessary to establish the proper amount of compensation.” 123 Cong. Rec. 25709 (1977) (statement of Sen. Leahy, floor manager of S. 1678). Legislators and the Agency agreed that “[dieter-mining the amount and terms of such compensation are matters that do not require active government involvement [and] compensation payable should be determined to the fullest extent practicable, within the private sector.” Id., at 25710.
Against this background, Congress in 1978 amended § 3(c)(1)(D) and § 10(b) to clarify that the trade secret exemption from the data-consideration provision did not extend to health, safety, and environmental data. In addition, the 1978 amendments granted data submitters a 10-year period of exclusive use for data submitted after September 30,1978, during which time the data may not be cited without the original submitter’s permission. § 3(c)(l)(D)(i).
Regarding compensation for use of data not protected by the 10-year exclusive use provision, the amendment substituted for the EPA Administrator’s determination of the appropriate compensation a system of negotiation and binding arbitration to resolve compensation disputes among registrants. Section 3(c)(l)(D)(ii) authorizes EPA to consider data already in its files in support of a new registration, permit, or new use, but “only if the applicant has made an offer to compensate the original data submitter.” If the applicant and data submitter fail to agree, either may invoke binding arbitration. The arbitrator’s decision is subject to judicial review only for “fraud, misrepresentation, or other misconduct.” Ibid,. The statute contains its own sanctions. Should an applicant or data submitter fail to comply with the scheme, the Administrator is required to cancel the new registration or to consider the data without compensation to the original submitter. The Administrator may also issue orders regarding sale or use of existing pesticide stocks. Ibid.
The concept of retaining statutory compensation but substituting binding arbitration for valuation of data by EPA emerged as a compromise. This approach was developed by representatives of the major chemical manufacturers, who sought to retain the controversial compensation provision, in discussions with industry groups representing follow-on registrants, whose attempts to register pesticides had been roadblocked by litigation since 1972. Hearings on Extending and Amending FIFRA before the Subcommittee on Department Investigations, Oversight, and Research of the House Committee on Agriculture, 95th Cong., 1st Sess., 522-523 (1977) (testimony of Robert Alikonis, General Counsel to Pesticide Formulators Association).
B
Appellees are 13 large firms engaged in the development and marketing of chemicals used to manufacture pesticides. Each has in the past submitted data to EPA in support of registrations of various pesticides. When the 1978 amendments went into effect, these firms were engaged in litigation in the Southern District of New York challenging the constitutionality under Article I and the Fifth Amendment of the provisions authorizing data-sharing and disclosure of data to the public. In response to this Court’s decision in Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U. S. 50 (1982), appellees amended their complaint to allege that the statutory mechanism of binding arbitration for determining the amount of compensation due them violates Article III of the Constitution. Article III, §1, provides that “[t]he judicial Power of the United States, shall be vested” in courts whose judges enjoy tenure “during good Behaviour” and compensation that “shall not be diminished during their Continuance in Office.” Appellees allege Congress in FIFRA transgressed this limitation by allocating to arbitrators the functions of judicial officers and severely limiting review by an Article III court.
The District Court granted appellees’ motion for summary judgment on their Article III claims. It found the issues ripe because the “statutory compulsion to seek relief through arbitration” raised a constitutionally sufficient case or controversy. Although troubled by what appeared a “standardless delegation of powers,” the District Court did not reach the Article I issue because it held that Article III barred FIFRA’s “absolute assignment of [judicial] power” to arbitrators with only limited review by Article III judges. Union Carbide Agricultural Products Co. v. Ruckelshaus, 571 F. Supp. 117, 124 (1983). The District Court, rather than striking down the statutory limitation on judicial review, enjoined the entire FIFRA data use and compensation scheme. App. to Juris. Statement 25a.
Appellant took a direct appeal to this Court pursuant to 28 U. S. C. § 1252. We vacated the judgment of the District Court and remanded for reconsideration in light of our supervening decision in Ruckelshaus v. Monsanto Co., 467 U. S. 986 (1984). Ruckelshaus v. Union Carbide Agricultural Products Co., 468 U. S. 1201 (1984). In Monsanto, we ruled that FIFRA’s data-consideration provisions may be deemed a “public use” even though the most direct beneficiaries of the regulatory scheme will be the later applicants. 467 U. S., at 1014. Insofar as FIFRA authorizes the Administrator to consider trade secrets submitted during the period between 1972 and 1978, a period during which the registrant entertained a reasonable, investment-backed expectation that its trade secret data would be held confidential, we held it effects a taking. But the data originator must complete arbitration and, in the event of a shortfall, exhaust its Tucker Act remedies against the United States before it can be ascertained whether it has been deprived of just compensation. The Court distinguished between the “ability to vindicate [the] constitutional right to just compensation” and the “ability to vindicate [the] statutory right to obtain compensation from a subsequent applicant.” Id., at 1019. But we declined to reach Monsanto’s Article III claim, explaining:
“Monsanto did not allege or establish that it had been injured by actual arbitration under the statute. While the District Court acknowledged that Monsanto had received several offers of compensation from applicants for registration, it did not find that EPA had considered Monsanto’s data in considering another application. Further, Monsanto and any subsequent applicant may negotiate and reach agreement concerning an outstanding offer. If they do not reach agreement, then the controversy must go to arbitration. Only after EPA has considered data submitted by Monsanto in evaluating another application and an arbitrator has made an award will Monsanto’s claims with respect to the constitutionality of the arbitration scheme become ripe.” Ibid, (citation omitted).
On remand in this case, appellees amended their complaint to reflect that EPA had, in fact, considered their data in support of other registration applications. The amended complaint also alleged that data submitted by appellee Stauffer Chemical Company (Stauffer), originator of the chemicals butylate and EPTC, had been used in connection with registrations by PPG Industries, Inc. (PPG), and Drexel Chemical Company of pesticides containing butylate and EPTC as active ingredients. App. 23. The complaint further alleged Stauffer had invoked the arbitration provisions of § 3(c)(l)(D)(ii) against PPG, and appellees entered in evidence the award of the arbitration panel, handed down on June 28, 1983. Id., at 42. Stauffer claimed the arbitrators’ award fell far short of the compensation to which it was entitled.
In view of these developments, the District Court concluded that “[t]he claims presented by Stauffer challenging the constitutionality of FIFRA § 3(c)(1)(D) are ripe for resolution under the criteria established by the Supreme Court” in Ruckelshaus v. Monsanto Co., supra. The remaining plaintiffs, the District Court held, were aggrieved by the clear threat of compulsion to resort to unconstitutional arbitration. App. to Juris. Statement la-4a. The District Court reinstated its prior judgment enjoining the operation of the data-consideration provisions as violative of Article III. EPA again took a direct appeal and we noted probable jurisdiction. 469 U. S. 1032 (1984). This Court stayed the judgment pending disposition of the appeal.
II
As a threshold matter, we must determine whether appel-lees’ Article III claims demonstrate sufficient ripeness to establish a concrete case or controversy. Regional Rail Reorganization Act Cases, 419 U. S. 102, 138-139 (1974). Appellant contends that the District Court erred in addressing these claims because the criteria established in Monsanto for ripeness remained unsatisfied. Appellant argues that only one firm, Stauffer, engaged in arbitration and it seeks to enforce rather than challenge the award. Appellees counter that they are aggrieved by the threat of an unconstitutional arbitration procedure which assigns the valuation of their data to civil arbitrators and prohibits judicial review of the amount of compensation. Stauffer in particular argues that it was doubly injured by the arbitration. Although it claimed a shortfall of some $50 million, it was precluded by § 3(c)(l)(D)(ii) from seeking judicial review of the award against PPG. While seeking to enforce the award should its Article III claim fail, Stauffer has consistently challenged the validity of the entire FIFRA data-consideration scheme both here and in litigation initiated by PPG. See n. 3, supra.
We agree that Stauffer has an independent right to adjudication in a constitutionally proper forum. See Glidden Co. v. Zdanok, 370 U. S. 530, 533 (1962). Although appellees contend and the District Court found that they were injured by the shortfall in the award, it is sufficient for purposes of a claim under Article III challenging a tribunal’s jurisdiction that the claimant demonstrate it has been or inevitably will be subjected to an exercise of such unconstitutional jurisdiction. See Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U. S., at 56-57, aff’g 12 B. R. 946 (Minn. 1981) (reversing Bankruptcy Court’s denial of pretrial motion to dismiss contract claim). “[A party] may object to proceeding further with [a] lawsuit on the grounds that if it is to be resolved by an agency of the United States, it may be resolved only by an agency which exercises ‘[t]he judicial power of the United States’ described by Art. Ill of the Constitution.” 458 U. S., at 89 (opinion concurring in judgment). In contrast to the Taking Clause claim in Monsanto, appellees’ Article III injury is not a function of whether the tribunal awards reasonable compensation but of the tribunal’s authority to adjudicate the dispute. Northern Pipeline Construction Co. v. Marathon Pipe Line Co., supra; Glidden Co. v. Zdanok, supra. Thus appellees state an independent claim under Article III, apart from any monetary injury sustained as a result of the arbitration.
“[Rjipeness is peculiarly a question of timing.” Regional Rail Reorganization Act Cases, supra, at 140. “[I]ts basic rationale is to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements.” Abbott Laboratories v. Gardner, 387 U. S. 136, 148 (1967). The Article III challenge in Monsanto was, in this sense, premature. Monsanto had not alleged that its data had ever been considered in support of other registrations, much less that Monsanto had failed to reach a negotiated settlement or been forced to resort to an unconstitutional arbitration. In fact, no FIFRA arbitrations had as yet taken place when Monsanto brought its claim. Monsanto’s claim thus involved “contingent future events that may not occur as anticipated, or indeed may not occur at all.” 13A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3532 (1984). By contrast, the FIFRA data-consideration procedures are now in place and numerous follow-on registrations have been issued. See Brief for Appellees 3, n. 3 (citing Docket Entry No. 132, p. 2). Each of the appellees in this action has alleged as yet uncompensated use of its data. App. 23. Stauffer has engaged in an arbitration lasting many months and consuming 2,700 pages of transcript. There is no doubt that the “effects [of the arbitration scheme] have [been felt by Stauffer] in a concrete way.” Abbott Laboratories v. Gardner, 387 U. S., at 148-149.
In addition, “the fitness of the issues for judicial decision” and “the hardship to the parties of withholding court consideration” must inform any analysis of ripeness. Id., at 149. The issue presented in this case is purely legal, and will not be clarified by further factual development. Cf. Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comm’n, 461 U. S. 190, 201 (1983). Doubts about the validity of FIFRA’s data-consideration and compensation schemes have plagued the pesticide industry and seriously hampered the effectiveness of FIFRA’s reforms of the registration process. “To require the industry to proceed without knowing whether the [arbitration scheme] is valid would impose a palpable and considerable hardship.” Id., at 201-202. At a minimum Stauffer, and arguably each appellee whose data have been used pursuant to the challenged scheme, suffers the continuing uncertainty and expense of depending for compensation on a process whose authority is undermined because its constitutionality is in question. See ibid. “‘One does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is enough.’ ” Regional Rail Reorganization Act Cases, 419 U. S., at 143, quoting Pennsylvania v. West Virginia, 262 U. S. 553, 593 (1923). Nothing would be gained by postponing a decision, and the public interest would be well served by a prompt resolution of the constitutionality of FIFRA’s arbitration scheme. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 82 (1978).
Finally, appellees clearly have standing to contest EPA’s issuance of follow-on registrations pursuant to what they contend is an unconstitutional statutory provision. They allege an injury from EPA’s unlawful conduct — the injury of being forced to choose between relinquishing any right to compensation from a follow-on registrant or engaging in an unconstitutional adjudication. Allen v. Wright, 468 U. S. 737 (1984). Appellees also allege injury which is likely to be redressed by the relief they request. Ibid. The use, registration, and compensation scheme is integrated in a single subsection that explicitly ties the follow-on registration to the arbitration. See § 3(c)(l)(D)(ii) (EPA “shall deny” or “cancel” follow-on registration if arbitration section is not complied with). It is evident that Congress linked EPA’s authority to issue follow-on registrations to the original data submitter’s ability to obtain compensation. A decision against the provision’s constitutionality, therefore, would support remedies such as striking down the statutory restrictions on judicial review or enjoining EPA from issuing or retaining in force follow-on registrations pursuant to § 3(c)(l)(D)(ii).
Ill
Appellees contend that Article III bars Congress from requiring arbitration of disputes among registrants concerning compensation under FIFRA without also affording substantial review by tenured judges of the arbitrator’s decision. Article III, § 1, establishes a broad policy that federal judicial power shall be vested in courts whose judges enjoy life tenure and fixed compensation. These requirements protect the role of the independent judiciary within the constitutional scheme of tripartite government and assure impartial adjudication in federal courts. United States v. Will, 449 U. S. 200, 217-218 (1980); Buckley v. Valeo, 424 U. S. 1, 122 (1976) (per curiam).
An absolute construction of Article III is not possible in this area of “frequently arcane distinctions and confusing precedents.” Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U. S., at 90 (opinion concurring in judgment). “[NJeither this Court nor Congress has read the Constitution as requiring every federal question arising under the federal law... to be tried in an Art. Ill court before a judge enjoying life tenure and protection against salary reduction.” Palmore v. United States, 411 U. S. 389, 407 (1973). Instead, the Court has long recognized that Congress is not barred from acting pursuant to its powers under Article I to vest decisionmaking authority in tribunals that lack the attributes of Article III courts. See, e. g., Walters v. National Assn. of Radiation Survivors, ante, p. 305 (Board of Veterans’ Appeals); Palmore v. United States, supra (District of Columbia courts); Crowell v. Benson, 285 U. S. 22 (1932) (Deputy Commissioner of Employees’ Compensation Commission); Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272 (1856) (Treasury accounting officers). Many matters that involve the application of legal standards to facts and affect private interests are routinely decided by agency action with limited or no review by Article III courts. See, e. g., 5 U. S. C. §§ 701(a)(1), 701(a)(2); Heckler v. Chaney, 470 U. S. 821, 837-838 (1985); United States v. Erika, Inc., 456 U. S. 201, 206 (1982) (no review of Medicare reimbursements); Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 18 (1983) (administrative agencies can conclusively adjudicate claims created by the administrative state, by and against private persons); Redish, Legislative Courts, Administrative Agencies, and the Northern Pipeline Decision, 1983 Duke L. J. 197 (same).
The Court’s most recent pronouncement on the meaning of Article III is Northern Pipeline. A divided Court was unable to agree on the precise scope and nature of Article Ill’s limitations. The Court’s holding in that case establishes only that Congress may not vest in a non-Article III court the power to adjudicate, render final judgment, and issue binding orders in a traditional contract action arising under state law, without consent of the litigants, and subject only to ordinary appellate review. 458 U. S., at 84 (plurality opinion); id., at 90-92 (opinion concurring in judgment); id., at 92 (Burger, C. J., dissenting).
A
Appellees contend that their claims to compensation under FIFRA are a matter of state law, and thus are encompassed by the holding of Northern Pipeline. We disagree. Any right to compensation from follow-on registrants under §3 (c)(l)(D)(ii) for EPA’s use of data results from FIFRA and does not depend on or replace a right to such compensation under state law. Cf. Northern Pipeline Construction Co., supra, at 84 (plurality opinion) (contract claims at issue were matter of state law); Crowell v. Benson, supra, at 39-40 (replacing traditional admiralty negligence action with administrative scheme of strict liability). As a matter of state law, property rights in a trade secret are extinguished when a company discloses its trade secret to persons not obligated to protect the confidentiality of the information. See Ruckelshaus v. Monsanto Co., 467 U. S., at 1002, citing R. Milgrim, Trade Secrets § 1.01[2] (1983). Therefore registrants who submit data with notice of the scheme established by the 1978 amendments, and its qualified protection of trade secrets as defined in §10, can claim no property interest under state law in data subject to § 3(c)(l)(D)(ii). Ruckelshaus v. Monsanto Co., supra, at 1005-1008. Cf. 21 U. S. C. §§ 348(a)(2), 376(a)(1); 21 CFR §71.15 (1985); 21 CFR § 171.1(b) (1984) (data submitted under Food, Drug, and Cosmetic Act is in public domain and follow-on registrants need not submit independent data). Nor do individuals who submitted data prior to 1978 have a right to compensation under FIFRA that depends on state law. To be sure, such users might have a claim that the new scheme results in a taking of property interests protected by state law. See 467 U. S., at 1013-1014. Compensation for any uncompensated taking is available under the Tucker Act. For purposes of compensation under FIFRA’s regulatory scheme, however, it is the “mandatory licensing provision” that creates the relationship between the data submitter and the follow-on registrant, and federal law supplies the rule of decision. Cf. Northern Pipeline Construction Co., supra, at 90 (opinion concurring in judgment).
Alternatively, appellees contend that FIFRA confers a. “private right” to compensation, requiring either Article III adjudication or review by an Article III court sufficient to retain “the essential attributes of the judicial power.” Northern Pipeline Construction Co., supra, at 77, 85-86 (plurality opinion). This “private right” argument rests on the distinction between public and private rights drawn by the plurality in Northern Pipeline. The Northern Pipeline plurality construed the Court’s prior opinions to permit only three clearly defined exceptions to the rule of Article III adjudication: military tribunals, territorial courts, and decisions involving “public” as opposed to “private” rights. Drawing upon language in Crowell v. Benson, supra, at 50, the plurality defined “public rights” as “matters arising between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments.” 458 U. S., at 67-68. It identified “private rights” as “ ‘the liability of one individual to another under the law as defined.’” Id., at 69-70, quoting Crowell v. Benson, 285 U. S., at 51.
This theory that the public rights/private rights dichotomy of Crowell and Murray’s Lessee v. Hoboken Land & Im provement Co., 18 How. 272 (1856), provides a bright-line test for determining the requirements of Article III did not command a majority of the Court in Northern Pipeline. Insofar as appellees interpret that case and Crowell as establishing that the right to an Article III forum is absolute unless the Federal Government is a party of record, we cannot agree. Cf. Northern Pipeline Construction Co., 458 U. S., at 71 (plurality opinion) (noting that discharge in bankruptcy, which adjusts liabilities between individuals, is arguably a public right). But see id., at 69, n. 23. Nor did a majority of the Court endorse the implication of the private right/public right dichotomy that Article III has no force simply because a dispute is between the Government and an individual. Compare id., at 68, n. 20, with id., at 70, n. 23.
B
Chief Justice Hughes, writing for the Court in Crowell, expressly rejected a formalistic or abstract Article III inquiry, stating:
“In deciding whether the Congress, in enacting the statute under review, has exceeded the limits of its authority to prescribe procedure..., regard must be had, as in other cases where constitutional limits are invoked, not to mere matters of form but to-the substance of what is required.” 285 U. S., at 53 (emphasis added).
Crowell held that Congress could replace a seaman’s traditional negligence action in admiralty with a statutory scheme of strict liability. In response to practical concerns, Congress rejected adjudication in Article III courts and instead provided that claims for compensation would be determined in an administrative proceeding by a deputy commissioner appointed by the United States Employees’ Compensation Commission. Id., at 43. “[T]he findings of the deputy commissioner, supported by evidence and within the scope of his authority” were final with respect to injuries to employees within the purview of the statute. Id., at 46. Although such findings clearly concern obligations among private parties, this fact did not make the scheme invalid under Article III. Instead, after finding that the administrative proceedings satisfied due process, id., at 45-48, Crowell concluded that the judicial review afforded by the statute, including review of matters of law, “provides for the appropriate exercise of the judicial function in this class of cases.” Id., at 54.
The enduring lesson of Crowell is that practical attention to substance rather than doctrinaire reliance on formal categories should inform application of Article III. Cf. Glidden Co. v. Zdanok, 370 U. S., at 547-548. The extent of judicial review afforded by the legislation reviewed in Crowell does not constitute a minimal requirement of Article III without regard to the origin of the right at issue or the concerns guiding the selection by Congress of a particular method for resolving disputes. In assessing the degree of judicial involvement required by Article III in this case, we note that the statute considered in Crowell is different from FIFRA in significant respects. Most importantly, the statute in Crowell displaced a traditional cause of action and affected a pre-existing relationship based on a common-law contract for hire. Thus it clearly fell within the range of matters reserved to Article III courts under the holding of Northern Pipeline. See 458 U. S., at 70-71, and n. 25 (plurality opinion) (noting that matters subject to a “suit at common law or in equity or admiralty” are at “protected core” of Article III judicial powers); id., at 90 (opinion concurring in judgment) (noting that state law contract actions are “the stuff of the traditional actions at common law tried by the courts at Westminster in 1789”).
If the identity of the parties alone determined the requirements of Article III, under appellees’ theory the constitutionality of many quasi-adjudicative activities carried on by administrative agencies involving claims between individuals would be thrown into doubt. See 5 K. Davis, Administrative Law §29:23, p. 443 (2d ed. 1984) (concept described as “revolutionary”); Note, A Literal Interpretation of Article III Ignores 150 Years of Article I Court History: Marathon Oil Pipeline Co. v. Northern Pipeline Construction Co., 19 New England L. Rev. 207, 231-232 (1983) (“public rights doctrine exalts form over substance”); Note, The Supreme Court, 1981 Term, 96 Harv. L. Rev. 62, 262, n. 39 (1982). For example, in' Switchmen v. National Mediation Board, 320 U.S. 297 (1943), cited with approval in South Carolina v. Katzenbach, 383 U. S. 301, 333 (1966), the Court upheld as constitutional a provision of the Railway Labor Act that established a “right” of a majority of a craft or class to choose its bargaining representative and vested the resolution of disputes concerning representation solely in the National Mediation Board, without judicial review. The Court concluded:
“The Act... writes into law the ‘right’ of the ‘majority of any craft or class of employees’ to ‘determine who shall be the representative of the craft or class for purposes of this Act.’ That ‘right’ is protected by [a provision] which gives the Mediation Board the power to resolve controversies concerning it.... A review by the federal district courts of the Board’s determination is not necessary to preserve or protect that ‘right.’ Congress for reasons of its own decided upon the method for protection of the ‘right’ which it created.” 320 U. S., at 300-301.
See also Union Pacific R. Co. v. Price, 360 U. S. 601, 608 (1959); NLRB v. Hearst Publications, Inc., 322 U. S. 111, 131, 135 (1944) (Board’s conclusions reviewable for rational basis and warrant in the record). Cf. Leedom v. Kyne, 358 U. S. 184, 199 (1958), (Brennan, J., dissenting) (discussing Switchmen).
The Court has treated as a matter of “public right” an essentially adversary proceeding to invoke tariff protections against a competitor, as well as an administrative proceeding to determine the rights of landlords and tenants. See Atlas Roofing Co. v. Occupational Safety and Health Review Comm’n, 430 U. S. 442, 454-455 (1977), citing as an example of “public rights” the federal landlord/tenant law discussed in Block v. Hirsh, 256 U. S. 135 (1921); Ex parte Bakelite Corp., 279 U. S. 438, 447 (1929) (tariff dispute). These proceedings surely determine liabilities of individuals. Such schemes would be beyond the power of Congress under appellees’ interpretation of Crowell. In essence, the public rights doctrine reflects simply a pragmatic understanding that when Congress selects a quasi-judicial method of resolving matters that “
Question: What is the issue of the decision?
01. antitrust (except in the context of mergers and union antitrust)
02. mergers
03. bankruptcy (except in the context of priority of federal fiscal claims)
04. sufficiency of evidence: typically in the context of a jury's determination of compensation for injury or death
05. election of remedies: legal remedies available to injured persons or things
06. liability, governmental: tort or contract actions by or against government or governmental officials other than defense of criminal actions brought under a civil rights action.
07. liability, other than as in sufficiency of evidence, election of remedies, punitive damages
08. liability, punitive damages
09. Employee Retirement Income Security Act (cf. union trust funds)
10. state or local government tax
11. state and territorial land claims
12. state or local government regulation, especially of business (cf. federal pre-emption of state court jurisdiction, federal pre-emption of state legislation or regulation)
13. federal or state regulation of securities
14. natural resources - environmental protection (cf. national supremacy: natural resources, national supremacy: pollution)
15. corruption, governmental or governmental regulation of other than as in campaign spending
16. zoning: constitutionality of such ordinances, or restrictions on owners' or lessors' use of real property
17. arbitration (other than as pertains to labor-management or employer-employee relations (cf. union arbitration)
18. federal or state consumer protection: typically under the Truth in Lending; Food, Drug and Cosmetic; and Consumer Protection Credit Acts
19. patents and copyrights: patent
20. patents and copyrights: copyright
21. patents and copyrights: trademark
22. patents and copyrights: patentability of computer processes
23. federal or state regulation of transportation regulation: railroad
24. federal and some few state regulations of transportation regulation: boat
25. federal and some few state regulation of transportation regulation:truck, or motor carrier
26. federal and some few state regulation of transportation regulation: pipeline (cf. federal public utilities regulation: gas pipeline)
27. federal and some few state regulation of transportation regulation: airline
28. federal and some few state regulation of public utilities regulation: electric power
29. federal and some few state regulation of public utilities regulation: nuclear power
30. federal and some few state regulation of public utilities regulation: oil producer
31. federal and some few state regulation of public utilities regulation: gas producer
32. federal and some few state regulation of public utilities regulation: gas pipeline (cf. federal transportation regulation: pipeline)
33. federal and some few state regulation of public utilities regulation: radio and television (cf. cable television)
34. federal and some few state regulation of public utilities regulation: cable television (cf. radio and television)
35. federal and some few state regulations of public utilities regulation: telephone or telegraph company
36. miscellaneous economic regulation
Answer:
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songer_district
|
G
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
In the Matter of Leamon Paul McWHORTER, Debtor. DIXIE NATIONAL LIFE INSURANCE COMPANY, etc., Plaintiff-Appellant, v. Leamon Paul McWHORTER, Debtor; Masie P. Killingsworth; Masie P. Killingsworth, as Administratrix, etc., et al., Defendants-Appellees.
No. 88-7561.
United States Court of Appeals, Eleventh Circuit.
Nov. 14, 1989.
William A. Robinson and R. Carlton Smyly, Cabaniss, Johnston, Gardner, Dumas & O’Neal, Birmingham, Ala., for plaintiff-appellant.
Terry McElheny. and J. Fred Wood, Dominick, Fletcher, Yeilding, Wood & Lloyd, P.A., Birmingham, Ala., for defendants-ap-pellees.
Before KRAVITCH, JOHNSON and ANDERSON, Circuit Judges.
PER CURIAM:
The issue in this case is whether the district court erred in granting summary judgment based on collateral estoppel on the question whether an insurance company was aware of and ratified the fraudulent actions of one of its agents. We hold that summary judgment was improper in this case and reverse the judgment of the district court.
I. BACKGROUND
...... L. Paul McWhorter, the defendant, persuaded many people to buy Dixie National Life Insurance Company (“Dixie”) annuities and policies and páy for them by cashing in their policies with other companies. Many of these purchasers sued McWhorter and Dixie for fraud and misrepresentation. Dominick v. Dixie National Life Insurance Co., 809 F.2d 1559 (11th Cir.1987), fully explains the factual background.
Between 1985 and 1987, eighteen claims of individual purchasers were tried before juries in the Northern District of Alabama. The claims against McWhorter personally were settled before these trials, so the issues before the juries were Dixie’s liability by' virtue of its approval of McWhorter’s actions, and McWhorter’s liability to Dixie on Dixie’s cross-claims. A special verdict form for each of the eighteen claims was submitted to the juries. One of the questions asked:' “Was any. such representation [of a material fact by McWhorter to each claimant] made by Paul McWhorter with the approval of Dixie National?” In each case, the jury answered “yes,” and found Dixie liable for McWhorter’s actions.
McWhorter filed for bankruptcy in April, 1983. Dixie then brought this adversarial proceeding in which it sought compensatory and punitive damages from McWhorter for losses it incurred in investigating, defending, and settling the claims of purchasers other than the eighteen who took their cases to trial. Although the individual purchasers were different, Dixie’s claims against McWhorter in the present case were the same as its losing claims against McWhorter, in the prior litigation. McWhorter answered Dixie’s complaint by denying all material allegations and asserting, inter alia, that Dixie’s claims were “barred by res judicata, collateral estoppel, and/or law of the case.” McWhorter based his argument on the jury findings in the eighteen prior cases that Dixie had “ratified, confirmed, or adopted” his conduct.
In an order and opinion dated August 12, 1988, the district court granted McWhorter’s motion for summary judgment, holding that Dixie was collaterally estopped to litigate the issue of Dixie’s “approval” of McWhorter’s actions by virtue of the verdicts in the other cases. Dixie now appeals.
II. DISCUSSION
The district court granted summary judgment in favor of McWhorter based solely on collateral estoppel. On appeal, Dixie challenges only the propriety of the application of collateral estoppel to prevent Dixie from denying that it ratified or approved McWhorter’s misrepresentations. To invoke collateral estoppel, a party must demonstrate four elements:
(1) the issue at stake must be identical to the one involved in the prior litigation; (2) the issue must have been actually litigated in the prior suit; (3) the determination of the issue in the prior litigation must have been a critical and necessary part of the judgment in that action; and (4) the party against whom the earlier decision is asserted must have had a full and fair opportunity to litigate the issue in the earlier proceeding.
LA. Durbin, Inc. v. Jefferson National Bank, 793 F.2d 1541, 1549 (11th Cir.1986).
“Whether collateral estoppel is available is a mixed question of law and fact in which the legal issues predominate. The question of its availability is subject to our de novo review.” Davis & Cox v. Summa Corp., 751 F.2d 1507, 1519 (9th Cir.1985); cited with approval in McDonald v. Hillsborough County School Board, 821 F.2d 1563, 1564 (11th Cir.1987). Therefore, we review the district court’s grant of summary judgment de novo.
McWhorter argues that the application of collateral estoppel is a matter committed to the trial court’s discretion. Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331, 99 S.Ct. 645, 651, 58 L.Ed.2d 552 (1979). The actual decision whether to apply collateral estoppel undoubtedly involves equitable considerations, Hercules Carriers v. Claimant State of Florida, 768 F.2d 1558, 1582 (11th Cir.1985), and is therefore subject to review under an abuse of discretion standard. Deweese v. Town of Palm Beach, 688 F.2d 731, 734 (11th Cir.1982). The initial question of whether collateral estoppel is available, however, is a legal question which this court must consider de novo. Davis & Cox, 751 F.2d at 1519.
The party seeking to invoke collateral estoppel bears the burden of proving that the necessary elements have been satisfied. Matter of Merrill, 594 F.2d 1064, 1067 (5th Cir.1979). The sole question in this case is whether the issue of Dixie’s approval of McWhorter’s actions in the eighteen litigated cases is identical to the issue in this case.
The district court concluded that “[wjhile each annuity sale constituted a separate transaction, the factual setting surrounding the sales raises identical issues as to whether Dixie National knew of McWhorter’s misrepresentations during those sales,” and thus Dixie was collaterally es-topped to litigate the issue of approval in the other cases. Dixie argues that its claims in this action are based on annuity sales not at issue in the prior litigation, that the misrepresentations in the instant case were made at different times and to different persons than the misrepresentations in the previous litigation, and that the prior juries found only that Dixie had ratified and approved the previous eighteen misrepresentations. Thus, Dixie contends, the issue of ratification of the different misrepresentations now before the court is a different issue.
Dixie argues that Rufenacht v. Iowa Beef Processors, 656 F.2d 198 (5th Cir.1981), cert. denied, 455 U.S. 921, 102 S.Ct. 1279, 71 L.Ed.2d 462 (1982), established that transactions which are similar in nature and close in time do not satisfy the identity of issues requirement for application of collateral estoppel. Rufenacht held that the identity of issues required to invoke collateral estoppel was lacking in a case where transactions at issue in prior cases were similar in nature and close in time to, but not precisely the same as, the case then before the court.
In Rufenacht, the plaintiffs sold cattle to James Heller, who in turn shipped the cattle to the defendant, Iowa Beef Processors. Heller did not pay the sellers for the cattle, so they sued Iowa Beef, claiming that Heller had acted as Iowa Beefs agent in purchasing the cattle from the plaintiffs. In two prior actions against Iowa Beef, other sellers of cattle to Heller also had alleged that Heller had acted as Iowa Beef’s agent when buying their cattle. The juries in those cases found against Iowa Beef, necessarily finding that Heller bought the cattle as Iowa Beef’s agent.
Based on these prior verdicts, the plaintiff sellers in Rufenacht contended that Heller’s agency relationship with Iowa Beef was established and that collateral estoppel barred Iowa Beef from litigating that issue. Our predecessor court rejected this argument, stating:
Collateral estoppel is appropriate only when the identical issue has been fully litigated in a prior case. In each of the lawsuits pertinent to our consideration, plaintiff made or makes the allegation that Heller had an agency relationship with IBP. However, each claim is referable to a separate and distinct cattle transaction. There is no doubt that the transactions involving [the prior plaintiffs and Iowa Beef and the current plaintiffs and Iowa Beef] were similar in nature and close in time. But they were not identical. The fact that Heller acted in a given manner with regard to any given seller does not necessarily dictate that he acted in the selfsame manner with another. Certainly the fact that Heller’s actions were such as to allow him to be deemed an agent of IBP in some cases may serve as the basis of argument in support of the conclusion that he so acted in others. However, the holdings in [the prior cases] are not dispositive of Heller’s status [as an agent of Iowa Beef in the transactions currently before the court]. The juries in [the prior cases] made no finding that during any given span of time Heller was acting exclusively as [an] agent of IBP. Those juries were asked to and did determine only Heller’s status with regard to the particular transaction before them.
656 F.2d at 202-04 (footnote omitted).
In the present case, the district court found Rufenacht inapplicable because it involved offensive use of collateral estoppel, while McWhorter seeks to invoke collateral estoppel defensively. In an offensive collateral estoppel case a court must take special care to ensure that the defendant had a full and fair opportunity to litigate the issue in the other proceeding. Johnson v. United States, 576 F.2d 606, 617 (5th Cir.1978). Nevertheless, the elements necessary to invoke collateral estop-pel are the same whether a party seeks to use it “offensively” or “defensively.” Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331 n. 16, 99 S.Ct. 645, 651 n. 16, 58 L.Ed.2d 552 (1979). Despite the fact that Rufenacht involved offensive use of collateral estoppel, we are persuaded by its treatment of whether issues are identical for collateral estoppel purposes. There is no indication in Rufenacht that the court addressed the identity of issues requirement differently because the case involved offensive rather than defensive use of collateral estoppel.
As in Rufenacht, this case arises from transactions that were not at issue in the prior litigation. It is true that juries have found that Dixie was aware of and did approve the misrepresentations to the particular purchasers in each of the previously litigated eighteen claims. Apparently, the misrepresentations at issue now are similar to those in the previous eighteen claims. From this we can conclude that Dixie may well be collaterally estopped from denying that it was aware of and approved similar misrepresentations in the past. However, one further inference of fact is required in order for McWhorter to prevail on the present appeal — i.e., the inference that based on the fact that Dixie knew and approved of similar misrepresentations in the past, it also was aware of and approved the misrepresentation in each particular claim now before the court. The previous litigation did not address this additional inference, and thus the issue now before the court is not identical to the previously litigated issue. The juries in the prior cases made no findings regarding Dixie’s approval of alleged misrepresentations by McWhorter in connection with sales other than those to the plaintiffs in each of those cases; the trial court instructed the juries to consider each sale to each plaintiff on an individual basis. Because the transactions, although “similar in nature and close in time,” did not involve the individual cases at issue here, application of collateral estoppel was improper in this case.
III. CONCLUSION
The transactions which form the basis of Dixie’s action against McWhorter in this case are distinct in time and involve different purchasers from those which resulted in the prior jury findings that Dixie approved McWhorter’s conduct. Therefore, the identity of issues requirement of collateral es-toppel has not been satisfied in this case. Accordingly, the judgment of the district court is reversed, and the case is remanded for further proceedings.
REVERSED and REMANDED.
. This adversary proceeding was transferred to the district court pursuant to order of the bankruptcy court.
. This case was decided prior to the close of business on September 30, 1981, and is binding precedent under Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981).
. The cases cited by McWhorter regarding offensive use of collateral estoppel deal with the full and fair opportunity requirement and not the identity of issues requirement. See Davis v. West Community Hospital, 786 F.2d 677, 682 (5th Cir.1986) ("Offensive collateral estoppel should be invoked to preclude litigation of an issue only if the party against whom collateral estoppel is urged has had a full and fair opportunity to litigate the identical issue in the earlier case.”).
. Dixie argues alternatively that the quantum of proof necessary to establish "approval" by Dixie of McWhorter’s actions in the prior proceedings by individual annuity purchasers was less than the standard that McWhorter must meet in this action. Because of our conclusion that the transactions at issue in this case do not present the same issue as in the prior cases for collateral estoppel purposes, we do not address Dixie’s alternative argument.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
sc_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. FOOD STORE EMPLOYEES UNION, LOCAL 347, AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO
No. 73-370.
Argued March 18-19, 1974
Decided May 20, 1974
BreNNAN, J., delivered the opinion for a unanimous Court.
Deputy Solicitor General Friedman argued the cause for petitioner. On the brief were Solicitor General Bork, Mark L. Evans, Peter G. Nash, John S. Irving, Patrick Hardin, Norton J. Come, and Linda Sher.
Mozart G. Ratner argued the cause for respondent. With him on the. brief were Bernard Ries, Joseph M. Jacobs, and Judith A. Lonnquist. Fred Holroyd and Jerry Kronenberg filed a brief for Heck’s Inc., intervenor below.
Mr. Justice Brennan
delivered the opinion of the Court.
The National Labor Relations Board refused to include, in a cease-and-desist order against Heck’s Inc., a provision sought by respondent union, as charging party, that Heck’s reimburse respondent’s litigation expenses and excess organizational costs incurred as a result of Heck’s unlawful conduct. The Board’s stated reason was that “it would not on balance effectuate the policies of the [National Labor Relations] Act to require reimbursement with respect to such costs in the circumstances here.” Heck’s Inc., 191 N. L. R. B. 886, 889 (1971). Respondent prevailed, however, in enforcement and review proceedings in the Court of Appeals for the District of Columbia Circuit. That court enlarged the Board’s order by adding provisions, paragraphs 2 (e) and (f), that Heck’s “[p]ay to the Union any extraordinary organizational costs which the Union incurred by reason of Heck’s policy of resisting organizational efforts and refusing to bargain, such costs to be determined at the compliance stage of these proceedings,” and “[p]ay to the Board and the Union the costs and expenses incurred by them in the investigation, preparation, presentation, and conduct of these cases before the National Labor Relations Board and the courts, such costs to be determined at the compliance stage of these proceedings.” 155 U. S. App. D. C. 101, 476 F. 2d 546 (1973). We granted certiorari to consider whether the enlargement of this order was a proper exercise of the authority of courts of appeals under §§ 10 (e) and (f) of the National Labor Relations Act, as amended, 61 Stat. 146,, 29 U. S. C. §§ 160 (e) and (f), to “make and enter a decree . . . modifying, and enforcing as so modified” the order of the Board, 414 U. S. 1062 (1973). We reverse.
Heck’s Inc. operates a chain of discount stores in the Southeast section of the country. Its resistance to union organization has resulted in some 11 proceedings before the National Labor Relations Board. This case grew out of its efforts to prevent organization by respondent union of Heck’s employees at its store in Clarksburg, West Virginia. The case was twice before the Board. In its first decision, the Board determined that Heck’s violated § 8 (a) (1) of the Act, 29 U. S. C. § 158 (a) (1), by threatening and coercively interrogating employees during respondent’s organizational campaign, and by conducting a nonsecret poll to ascertain employee support for the union. Further, the Board found that Heck’s “flagrant repetition” of similar unfair labor practices at its other stores and its “extensive violations of the Act” in the Clarksburg store justified an inference that Heck’s did not entertain any good-faith doubt concerning majority support for respondent union when the company refused to recognize and bargain with the union on the basis of authorization cards signed by a majority of employees. Accordingly, the Board found that Heck’s violated §§ 8 (a)(5) and (1) of the Act, 29 U. S. C. §§ 158 (a)(5) and (1). Finally, because Heck’s extensive violations were found to have made a free and fair election impossible, an order directing Heck’s to bargain with the union was entered. The Board rejected, however, the union’s argument that adequate relief required certain additional remedies, including reimbursement of litigation expenses and excess organizational costs incurred as a result of Heck’s unlawful behavior. Heck’s Inc., 172 N. L. R. B. 2231 n. 2 (1968).
The Court of Appeals for the District of Columbia Circuit enforced the Board’s order, but remanded to the Board for further consideration of additional remedies including reimbursement of litigation expenses and excess organizational costs. 139 U. S. App. D. C. 383, 433 F. 2d 541 (1970). On remand, the Board amended its original order to encompass certain supplemental remedies, but again refused to order reimbursement of litigation expenses and excess organizational costs. 191 N. L. R. B. 886. Although the Board found that Heck’s unfair labor practices were "aggravated and pervasive” and that its intransigence had probably caused the union to incur greater litigation expenses and organizational costs, the Board’s rationale, previously mentioned, was that the provision would not effectuate the policies of the Act. The Board reasoned that its “orders must be remedial, not punitive, and collateral losses are not considered in framing a reimbursement order.” Id., at 889 (footnotes omitted). Moreover, a charging party’s participation in the case is, the Board found, primarily for the purpose of protecting its private interests, whereas the Board has the primary responsibility for protecting the public interest. The Board therefore concluded that, although the public interest might also arguably be served “in allowing the Charging Party to recover the costs of its participation in this litigation,” that consideration did not “override the general and well-established principle that litigation expenses are ordinarily not recoverable.” Ibid. (Footnote omitted.)
Prior to review of its supplementary decision by the Court of Appeals, the Board issued its decision in Tiidee Products, Inc., 194 N. L. R. B. 1234 (1972), in which the Board ordered reimbursement of litigation expenses in the context of a finding that an employer had engaged in “frivolous litigations.” The Board’s opinion in Tiidee reasoned that industrial peace could be best achieved if “speedy access to uncrowded Board and court dockets [were] available” and therefore that an assessment of legal fees would serve the public interest by “discouraging] future frivolous litigation,” id., at 1236. The Board did not explain why those considerations had not led it to order similar relief in this case. The Court of Appeals therefore concluded in the present case that the Board had abandoned its policy against award of litigation expenses and excess organizational costs, stating:
“Although the Board in its Supplemental Decision in this case has nowhere characterized the litigation as frivolous, it has used the language of ‘clearly aggravated and pervasive’ misconduct; and in its original opinion it questioned Heck’s good faith because of its ‘flagrant repetition of conduct previously found unlawful’ at other Heck’s stores. It would appear that the Board has now recognized that employers who follow a pattern of resisting union organization, and who to that end unduly burden the processes of the Board and the courts, should be obliged, at the very least, to respond in terms of making good the legal expenses to which they have put the charging parties and the Board. We hold that the case before us is an appropriate one for according such relief.” 155 U. S. App. D. C., at 106, 476 F. 2d, at 551.
The Court of Appeals also viewed Tiidee as the signal of a shift in the Board’s attitude toward excess organizational costs. In Tiidee, the Board refused to order reimbursement of excess organizational costs because “ ‘no nexus between [the employer’s] unlawful conduct’ ” had been proved. Ibid. Since, in the instant case, the Board had indicated that Heck’s violations had probably caused respondent to incur excess organizational costs, a nexus' was proved and accordingly the court held that respondent was entitled to an order directing reimbursement of organizational costs.
In the circumstances of this case, the Court of Appeals, in our view, improperly exercised its authority under §§10 (e) and (f) to modify Board orders, and the case must therefore be returned to the Board. Congress has invested the Board, not the courts, with broad discretion to order a violator “to take such affirmative action ... as will effectuate the policies of [the Act].” 29 U. S. C. § 160 (c); see, e. g., Golden State Bottling Co. v. NLRB, 414 U. S. 168, 176 (1973). This case does not present the exceptional situation in which crystal-clear Board error renders a remand an unnecessary formality. See NLRB v. Express Publishing Co., 312 U. S. 426 (1941); Communications Workers v. NLRB, 362 U. S. 479 (1960). For it cannot be gainsaid that the finding here that Heck’s asserted at least “debatable” defenses to the unfair labor practice charges, whereas objections to the representation election in Tiidee were “patently frivolous,” might have been viewed by the Board as putting the question of remedy in a different light. We cannot say that the Board, in performing its appointed function of balancing conflicting interests, could not reasonably decide that where “debatable” defenses are asserted, the public and private interests in affording the employer a determination of his “debatable” defenses, unfettered by the prospect of bearing his adversary’s litigation costs, outweigh the public interest in uncrowded dockets.
There are, however, facial inconsistencies between the Board’s opinion in this case and the Tiidee decision, and the Court of Appeals therefore correctly declined to resolve those inconsistencies by substituting Board counsel’s rationale for that of the Board. 155 U. S. App. D. C., at 107 n. 8, 476 F. 2d, at 552 n. 8; see NLRB v. Metropolitan Life Ins. Co., 380 U. S. 438, 444 (1965); Burlington Truck Lines v. United States, 371 U. S. 156, 168-169 (1962). The integrity of the administrative process demands no less than that the Board, not its legal representative, exercise the discretionary judgment which Congress has entrusted to it. But since a plausible reconciliation by the Board of the seeming inconsistency was reasonably possible, it was “incompatible with the orderly function of the process of judicial review,” NLRB v. Metropolitan Life Ins. Co., supra, at 444, for the Court of Appeals to enlarge the Heck’s order without first affording the Board an opportunity to clarify the inconsistencies.
It is a guiding principle of administrative law, long recognized by this Court, that “an administrative determination in which is imbedded a legal question open to judicial review does not impliedly foreclose the administrative agency, after its error has been corrected, from enforcing the legislative policy committed to its charge.” FCC v. Pottsville Broadcasting Co., 309 U. S. 134, 145 (1940); see Fly v. Heitmeyer, 309 U. S. 146, 148 (1940); FTC v. Morton Salt Co., 334 U. S. 37, 55 (1948); FPC v. Idaho Power Co., 344 U. S. 17, 20 (1952); Konigs- berg v. State Bar, 366 U. S. 36, 43-44 (1961). Thus, when a reviewing court concludes that an agency invested with broad discretion to fashion remedies has apparently abused that discretion by omitting a remedy justified in the court’s view by the factual circumstances, remand to the agency for reconsideration, and not enlargement of the agency order, is ordinarily the reviewing court’s proper course. Application of that general principle in this case best respects the congressional scheme investing the Board and not the courts with broad powers to fashion remedies - that will effectuate national labor policy. It also affords the Board the opportunity, through additional evidence or findings, to reframe its order better to effectuate that policy. See FPC v. Idaho Power Co., supra, at 20; FTC v. Morton Salt Co., supra, at 55. Moreover, in this case, if the Court of Appeals correctly read Tiidee as having signaled a change of policy in respect of reimbursement, a remand was necessary, because the Board should be given the first opportunity to determine whether the new policy should be applied retroactively.
The judgment of the Court of Appeals is reversed insofar as paragraphs 2 (e) and (f) were added to the Board’s order, and the case is remanded to the Court of Appeals with direction that it be remanded to the Board for further proceedings.
It is so ordered.
The many proceedings are cited in the opinion of the Court of Appeals, 155 U. S. App. D. C. 101, 102 n. 1, 476 F. 2d 546, 547 n. 1.
The Board also rejected respondent’s requests for provisions directing the mailing of notices to employees; either a company-wide bargaining order or a shifting of the burden of proof in future cases to require Heck’s to demonstrate its good faith in rejecting authorization cards; injunctions under § 10 (j) of the Act, 29 U. S. C. §160(j); increased access to employees; and a “make-whole” provision directing compensation to employees for collective-bargaining benefits lost as a result of the employer’s unlawful conduct.
The remand was ordered in light of the Court of Appeals’ intervening decision in International Union of Elec., Radio & Mach. Workers v. NLRB, 138 U. S. App. D. C. 249, 426 F. 2d 1243 (1970), known as the Tiidee Products case, in which the court had remanded for further Board consideration a union’s submission that similar supplementary remedies were necessary where an employer’s refusal to bargain was found to be "a clear and flagrant violation of the law,” and its objections to a representation election were determined to be “patently frivolous.” Id., at 254, 426 F. 2d, at 1248.
The Board directed Heck’s to mail notices of the Board’s amended order to the homes of all employees at each of Heck’s store locations; to provide the union with reasonable access for a one-year period to bulletin boards and other places where union notices are normally posted; and to provide the union with a list of names and addresses of all employees at all locations, to be kept current for one year.
The Board also refused to order, as sought by respondent, that notices of the Board’s decision be read to assembled groups of employees; that a company wide bargaining order be issued; that the company be required to bargain whenever the union obtained an authorization card majority at other locations; that greater access to employees on company property be granted; and that a “make-whole” provision for reimbursement of dues and fees, and collective-bargaining benefits, lost as a result of the unlawful refusal to bargain, be ordered.
In support of this proposition, the Board relied upon Republic Steel Corp. v. NLRB, 311 U. S. 7, 11-12 (1940), and NLRB v. Gullett Gin Co., 340 U. S. 361, 364 (1951).
The Board’s decision in Tiidee was issued after supplementary proceedings following a remand from the Court of Appeals. See n. 3, supra. In an opinion filed April 25, 1974, the Court of Appeals, on review of the Board’s supplementary decision in Tiidee, enforced as modified the Board’s" amended order. International Union of Elec., Radio & Mach. Workers v. NLRB, 163 U. S. App. D. C. 347, 502 F. 2d 349.
The Court of Appeals made clear that the enlargement of the Board order was based squarely on the Board’s change of policy perceived to have been made by Tiidee. The court refused to decide the question argued by respondent union that, independently of Tiidee, an order of reimbursement should be directed. The Court of Appeals said:
“There are, it seems to us, obvious difficulties [in relying upon the subsidiary role of the charging party as a basis for denial of litigation expenses], certainly in the case of an employer who appears to look upon litigation as a convenient means of delaying — and thereby perhaps avoiding — the fatal day of union recognition and collective bargaining. We need not pursue those difficulties in detail, however, for the reason that the Board itself has subsequently departed from the rationale upon which its refusal of litigation expenses in this case is based.” 155 U. S. App. D. C., at 105, 476 F. 2d, at 550 (emphasis added).
We thus have no occasion at this time to address the question whether the Board’s broad powers under § 10 (c), 29 U. S. C. § 160 (c), to fashion remedies include power to order reimbursement of litigation expenses and excess organizational costs.
Appellate courts ordinarily apply the law in effect at the time of the appellate decision, see Bradley v. School Board, 416 U. S. 696, 711 (1974). However, a court reviewing an agency decision following an intervening change of policy by the agency should remand to permit the agency to decide in the first instance whether giving the change retrospective effect will best effectuate the policies underlying the agency’s governing act.
In its present posture the case does not, of course, present the question whether Board failure, on remand, to clarify the apparent inconsistency in its decisions would warrant reversal on review. Compare Barrett Line v. United States, 326 U. S. 179 (1945), with FCC v. WOKO, Inc., 329 U. S. 223, 227-228 (1946). See L. Jaffe, Judicial Control of Administrative Action 587-588 (1965); Shapiro, The Choice of Rulemaking or Adjudication in the Development of Administrative Policy, 78 Harv. L. Rev. 921, 947-950 (1965).
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_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.
Ross J. BOYERT, d/b/a The Ross Group, Plaintiff-Appellant, v. Laszlo N. TAUBER, Defendant-Appellee, and Julian D. Pars; Consolidated Financial Trust, Defendants.
No. 91-1428.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 1, 1991.
Decided Aug. 25, 1992.
Earl Landers Vickery, Vickery, Kilbride, Gilmore & Vickery, Houston, Tex., argued (Arnold Anderson Vickery, on brief), for plaintiff-appellant.
Roger Tehan Scully, II, Bethesda, Md., argued (William D. Quarles, Nancy A. Voi-sin, Venable, Baetjer, Howard & Civiletti, Washington, D.C., on brief), for defendant-appellee.
Before RUSSELL, Circuit Judge, BUTZNER, Senior Circuit Judge, and MICHAEL, United States District Judge for the Western District of Virginia, sitting by designation.
PER CURIAM:
In this diversity case governed by Texas law we certified to the Supreme Court of Texas the following questions:
(a) Whether the doctrine of partial performance permits a broker to maintain an action for a real estate commission where the memorandum evidencing the agreement refers to “outside brokers” but does not provide a complete listing of their names.
(b) Whether parol evidence may be admitted to identify the broker to whom a commission is owed in an action to recover a real estate commission based on a document signed by the purchaser acknowledging a debt to “outside brokers” but not providing a complete listing of their names.
The Supreme Court of Texas responded with an opinion that holds:
Neither parol evidence nor partial performance may be used to identify a broker when the reference in the writing required by the Real Estate Licensing Act, Tex.Rev.Civ.Stat.Ann. art. 6573a, § 20(b) (Vernon Supp.1992), is to outside brokers. Accordingly, both certified questions are answered in the negative.
Boyert v. Tauber, 834 S.W.2d 60 (S.Ct.Tex. 1992).
The opinion of the Supreme Court of Texas disposes of the issues in this case. Accordingly, the district court’s grant of summary judgment in favor of Laszlo N. Tauber is affirmed.
We express to the Supreme Court of Texas our appreciation for its acceptance of our certification and its prompt decision on the certified questions.
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_genapel1
|
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 is to determine the nature of the first listed appellant.
In re INTERNATIONAL MATCH CORPORATION.
No. 431.
Circuit Court of Appeals, Second Circuit.
Aug. 12, 1935.
Peaslee & Brigham, of New York City (Martin A. Meyer, Jr., of New York City, on the brief; Ralph G. Albrecht, of New York City, of counsel), for the State of Delaware.
Rosenberg, Goldmark & Colin, of New York City (George K. Hourwich, of New York City, of counsel), for appellee.
Before MANTON, SWAN, and CHASE, Circuit Judges.
Writ of certiorari denied State of Delaware v. Irving Trust Co., 56 S. Ct. 368, 80 L. Ed. —.
CHASE, Circuit Judge.
The bankrupt, a corporation organized under the laws of Delaware, was adjudicated a bankrupt in the District Court for the Southern District of New York on April 19, 1932. The appellee is its trustee. The appellant has filed its claim for franchise taxes for the year 1932, which were payable April 1, 1933, and for the year 1933, payable April 1, 1934. Although the claim was filed subsequent to the time limited in a bar order, the order was modified to permit filing and nothing now turns upon that. The claims were expunged upon the theory that they were not provable under section 64a of the Bankruptcy Act, as amended by Act May 27, 1926, 11 USCA § 104 (a).
It is undisputed that these taxes are laid upon the privilege of existing as a corporation. See State v. Surety Corporation, 19 Del. Ch. 17, 162 A. 852, 853. Also that they are to be computed on the basis of a report of the corporation’s authorized capital, required to be filed, in accordance with section 66 of the Delaware Franchise Tax Law (Rev. Code Del. 1915, § 103, as amended by 37 Del. Laws, c. 7, § 1), on January 1, 1933, showing the 1932 capital structure, and on January 1, 1934, showing the 1933- capital structure. Under section 67 of the same law (Rev. Code Del. 1915, § 104, as amended by 37 Del. Laws, c. 7, § 2), the tax is to be prorated, if a corporation ceases to exist during a year, for the portion of the year during which it continued in existence and “In case a corporation shall have changed during the taxable year the amount of its authorized capital stock, the total annual franchise tax payable at the foregoing rates shall be arrived at by adding together the franchise taxes calculated as above set forth as prorated for the several periods of the year during which each distinct authorized amount of capital was in effect.”
Considerable stress is placed by the appellant upon the words “changed during the taxable year,” which appear in section 67 of the Delaware statute above quoted in part. It is argued from this that the franchise tax payable April 1, 1933, is for the year 1932, a year which had already commenced to run when the corporation was adjudicated a bankrupt. With this conclusion we agree. It is obvious that changes in capital structure which can be given effect in computing the tax on April 1st in' any year are changes which are then known. Certainly no tax could be computed which was dependent in amount upon events which might subsequently take .place. As the changes which must necessarily be given effect in the computation are those which are knowable and are . “changes within the taxable year” as designated by the statute, it follows .inevitably that the tax computed on any April 1st is the tax for the previous calendar year or such part of it as the corporation was in existence.
The questions presented are (1) whether the tax for 1932, payable April 1, 1933, was provable within the meaning of section 64a of the Bankrúptcy Act; and (2) whether the tax for 1933, payable April 1, 1934, was likewise provable. The strongest argument in behalf of the appellant can be made for the first of these taxes and that will be considered first.
Section 64a of the Bankruptcy Act, as amended by Act May 27, 1926, 11 USCA § 104 (a), provides, in so far as now material, that “The court shall order the trustee to pay all taxes legally due and owing by the bankrupt to the United States, State, county, district, or municipality, in the order of priority as set forth in paragraph (b) hereof. * * * ” The time when such taxes must be due and owing to be so payable is not fixed by the section. As to property taxes, it is clearly established that those which accrue after petition filed and during administration are to be paid. Swarts v. Hammer, 194 U. S. 441, 24 S. Ct. 695, 48 L. Ed. 1060; Dayton v. Stanard, 241 U. S. 588, 36 S. Ct. 695, 60 L. Ed. 1190. In equity receiverships, franchise taxes upon the privilege of existing which accrue during the receivership are likewise to be paid by the receiver. Michigan v. Michigan Trust Co., 286 U. S. 334, 52 S. Ct. 512, 76 L. Ed. 1136; People v. Hopkins (C. C. A.) 18 F.(2d) 731. But in an equity receivership the title to the property remains in the corporation and is merely put into the custody of the receiver, who must of necessity use the owner’s franchise in administering it. In bankruptcy, however, the trustee acquires the title by operation of law, and continued existence of the bankrupt as a corporation is nonessential. In re Century Silk Mills, Inc. (D. C.) 12 F.(2d) 292. So the supposed analogy between the provability of a claim for franchise taxes in an equity receivership and in bankruptcy is not close.
When this bankrupt was adjudicated, ’it had been in existence as a corporation under its Delaware franchise during 1932 up to April 19th. From this it is argued that the 1932 tax was due and owing within the meaning of section 64a and so provable in accordance with the principles underlying the decisions in New Jersey v. Anderson, 203 U. S. 483, 27 S. Ct. 137, 51 L. Ed. 284, and New York v. Jersawit, 263 U. S. 493, 44 S. Ct. 167, 68 L. Ed; 405. In the second of these two cases, however, the tax held provable was a franchise tax to be paid annually by the corporation in advance on November 1st of each year to be computed “upon the basis of its entire net income for its fiscal or the calendar year next preceding.” The petition was filed on December 22d following the date when the tax was payable in advance. All the facts necessary to be known in order to compute the tax were knowable when the petition was filed. In the Anderson Case the tax for 1903 was based upon the amount of capital stock issued and outstanding on the 1st of January preceding the making of a return the corporation was required to make on or before May 1st. The adjudication was on April 23d. The return was not filed until May 2d, and the tax was not assessed until July 1st. The tax was held legally due and owing although not collectible until after adjudication. But before adjudication all the factors entering into the computation of the tax were knowable. Nothing remained to be done but the filing of a return and the assessment.
In the instant case the situation is different in a vital respect. The amount of the 1932 tax could not "possibly be determined by any one until January 1, 1933. Not until then could possible changes in the capital structure affecting the amount of the tax be known. The distinction is between the accrual of a liability before petition filed though that liability has not yet ripened into an obligation to pay and the present situation where there was no liability whatever for the taxes on April 19, 1932. The time of the accrual of the obligation to pay rather than the time when the obligation is to be discharged by payment is the controlling feature. New Jersey v. Anderson, supra. See, also, Manhattan Properties, Inc., v. Irving Trust Co., 291 U. S. 320, 54 S. Ct. 385, 78 L. Ed. 824. This corporation continued to exist throughout the' whole taxable year. The tax for that period was entire. New York v. Jersawit, supra. It could not and cannot be computed as of the date of the petition in bankruptcy. When it did become due and owing from the corporation, the title to the property the appellant now seeks to subject to its payment had long since ceased to be in the corporation, but was in the trustee in bankruptcy who had nothing to do with the corporate franchise. It was not an obligation of the bankrupt when the trustee took title to the property, nor did it later become an obligation incurred by the trustee. In re Centfiry Silk Mills, Inc., supra. We therefore conclude that the claim for the 1932 tax was properly expunged because not provable. A fortiori, the claim for the 1933 tax must be treated the same way, for no part of that taxable period had run before the petition in bankruptcy was filed and in othér respects it stands the same.
Orders affirmed.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_usc2sect
|
106
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 33. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
PACIFIC-ATLANTIC S. S. CO. et al. v. UNITED STATES. THE OREGON.
No. 5827.
United States Court of Appeals Fourth Circuit.
Argued April 5, 1949.
Decided June 9, 1949.
Robert S. Erskine, New York City (Baird, White & Lanning, Norfolk, Va., Kirlin, Campbell, Iiickox & Keating, New York City, George M. Lanning, Norfolk, Va. and Eugene F. Gilligan, New York City, on the brief), for appellant Pacific-Atlantic Steamship Co.
Leonard J. Matteson, New York, City (Vandeventer & Black, Norfolk, Va., Big-ham, Englar, Jones & Houston, New York City, and Barron F. Black, Norfolk, Va., and Julian S. Gravely, Jr., New York City, on the brief), for appellant E. J. Lavino & Co.
Alfred T. Cluff, Sp. Asst, to the Atty. Gen. (H. G. Morison, Asst. Atty. Gen., on the brief), for appellee.
Before PARKER, SOPER and DOBIE, Circuit Judges.
DOBIE, Circuit Judge.
The Pacific-Atlantic Steamship Company, as owner of the American motorship Oregon filed under the Public Vessels Act, 46 U.S.C.A. §§ 781-799, in the United States District Court for the Eastern District of Virginia, a libel in admiralty against the United States, in connection with the sinking of the Oregon after a collision between that vessel and the New Mexico, a battleship of the United States Navy. Intervening libels were filed by E. J. Lavino and Company and by Defense Supplies Corporation, owners of the Oregon’s cargo. The United States filed a cross-libel for the damage to the New Mexico. The intervening libel of Defense Supplies Corporation was withdrawn before trial.
The District Court adjudged that, the collision “was caused entirely by faults and errors in navigation on the part of the Oregon,” and decreed that the Pacific-Atlantic Steamship Company, as owner of the Oregon, is “entitled to limitation of its liability to the value of its interest in the Oregon and its pending freight.” Further, it was ordered by the District Court that the intervening libelants are not entitled to any recovery from the Pacific-Atlantic Steamship Company, that there could be no recovery by any party against the United States, and that the United States recover its damages by reason of the collision from the Pacific-Atlantic Steamship Company, subject to this Company’s right to limitation of liability. An appeal has been taken to us by the libelant, Pacific-Atlantic Steamship Company, and by the intervening li-belant, E. J. Lavino and Company.
The collision between the Oregon and the New Mexico occurred about 4:42 A.M. on December 10, 1941, in the Atlantic Ocean at a point approximately forty miles south of the Nantucket Shoals Lightship. The New Mexico was preceded by a screen of three destroyers, the Hughes, the Sims and the Russell. The three destroyers were on the arc of a circle, each about 2,000 yards distant from the New Mexico, with the Hughes almost dead ahead of the New Mexico, the Sims on the New Mexico’s port bow, about 20 degrees forward of the battleship’s- port beam, and the Russell on the New Mexico’s starboard bow, about 20 degrees forward of the battleship’s starboard beam.
Due to war conditions, all of the vessels here concerned were blacked out, running without lights. The four naval vessels, according to plan, were zigzagging. Their base course was 236 degrees true (about southwest by west); but, just before the collision, on a leg of the zigzag, they were on a course 216 degrees true, proceeding at a speed of 14 knots. The course of the Oregon was 340 degrees true (about north-northwest) and her speed was just over 13j/j> knots.
At the time of the collision, the sky was overcast; the moon was obscured by broken clouds of moderate density, with some diffusion of light through the clouds, and there was neither rain nor fog. The visibility was-described by some witnesses as “good,” by others as “fair.” Captain Gillette of the Oregon, placed the range of visibility at from 11/2 miles to 2 miles for such an unlighted object as a ship. According to the witnesses on the New Mexico, it was placed for the naked eye at 2 miles, with binoculars at from 2/¿ or 3 miles to 4 miles.
When the Oregon entered the arc of the destroyer screen, she was between the Hughes and the Sims, with the Hughes to the Oregon’s port and the Sims to the Oregon’s starboard. At this time, the Hughes was closer to the Oregon than the Sims, and the Russell was, of course, the most distant of the three destroyers.
As is quite usual in cases of this kind, there are grave discrepancies in the testimony of the various witnesses as to precisely what happened, and when and where and why, just before the collision. The elaborate and able opinion filed by the District Judge contains a searching analysis of the vital parts of the testimony, with extended findings of fact and conclusions of law appropriately based on these findings.
First, we review briefly the testimony given by the witnesses on the Oregon. Captain Gillette testified that he, the second officer and a lookout were on the starboard side of the bridge, keeping an alert watch, while able seaman Jackson was at the wheel. They observed a dark object (which was, of course, the New Mexico) bearing about 4 points on the starboard bow and about a mile or less distant. Immediately the running lights of the Oregon were turned on in pursuance of Captain Gillette’s order, and, about 15 or 20 seconds later, the New Mexico turned on her running lights-. According to Captain Gillette, he could not determine the course of the New Mexico until her lights came on and, accordingly, he could not until then perceive that the two ships were on intersecting courses.
Captain Gillette estimated the distance between the Oregon and the New Mexico, when the latter’s lights came on, to be about one-third of a mile. He immediately ordered the helm “left” and a second or so later “hard left,” in the belief that such conduct offered the best chance of avoiding an imminent collision, and he hoped the New Mexico would cooperate by turning to her right. He admitted that he gave no signal whatever to indicate his intention to make this turn, and that he made no effort to reduce his speed until the moment of impact, when he ordered full astern for the Oregon’s engines. He stated that the collision occurred about one minute, or less, after he gave the “left” order.
At the time of the collision, according to Captain Gillette, the Oregon had turned about 40 degrees and was approximately a ship’s length to the left of her original course; while the New Mexico, which just a few seconds before had veered to her right, had swung about 10 degrees. This resulted in the New Mexico’s bow striking the starboard side of the Oregon, forward of her bridge, at an angle of about 45 degrees. He fixed the time of the collision at 4:43 A.M.; and estimated the elapsed time between the first sighting by the Oregon of the dark loom of the New Mexico and the collision at about 1^4 minutes.
The evidence indicates that no one on the Oregon saw any of the destroyers until the Oregon started her left turn just before the collision. Then the lights on the Hughes were seen.
The second mate of the Oregon and the seaman, who were on the Oregon’s bridge with Captain Gillette, could not testify, as they were both drowned when the Oregon sank. The testimony of Jackson, who was at the wheel of the Oregon, followed, with some variations, the same general line as the evidence of Captain Gillette. His estimate of the elapsed time between the first sighting of the loom of the New Mexico by the Oregon and the collision was “not much over a minute,” and the time interval between the start of the Oregon’s turn to the left and the collision as “not more than half a minute.” Jackson admitted his inability to make any accurate estimate of the distance at any time between the Oregon and the New Mexico, beyond his statement that, when the New Mexico first showed her lights, the two vessels were then “very close.”
Next we comment upon the evidence on behalf of the New Mexico given by those on that vessel and those on the destroyers. Lieutenant (jg) Waliszewski was the New Mexico’s officer of the deck. Through his binoculars he picked up the loom of a vessel (which was the Oregon) bearing about 45 degrees off the port bow of the New Mexico at a distance which he estimated to be between 5,000 and 6,000 yards, and he testified that this vessel appeared to be at least 2,000 yards ahead of and beyond the Sims. He called the strange vessel to the attention of Lieutenant Krick, supervisor of the watch on the New Mexico. While Waliszewski and-Krick were discussing the strange vessel, the lights of the Oregon came on.
Thereupon, Krick ordered the lights of the New Mexico turned on and directed that Captain Brown, asleep in his sea cabin just a few -steps away, be called. There was testimony by the officers concerned as to the following intervals of time: from Wal-iszewski’s sighting of the loom of the Oregon until the latter showed her lights, 2 or 3 minutes; from the lighting of the Oregon until the lighting of the New Mexico, less than 20 seconds; from the time Waliszew-ski started for Captain Brown until the Captain appeared on the bridge, 20 or 30 seconds.
Krick estimated the distance between the New Mexico and the Oregon, at the time the latter’s lights came on, as about 3,000 yards. Captain Brown, when he first saw the Oregon with his naked eye, estimated her distance at from 2,000 to 2,500 yards1, and that when he procured his binoculars and observed the Oregon, she was about 2,000 yards away. There was further testimony by Captain Brown that, without changing the New Mexico’s course or speed, he kept the Oregon under close observation for 3 or 4 minutes and that the Oregon, during that period, made no change in course or speed.
Captain Brown testified that when the distance between the two vessels was about 700 yards, he realized “that the Oregon could not avoid a collision by her own efforts,” so he gave the order: “Right full, full speed astern,” hoping that by swinging the New Mexico to the right and slackening her advance, a collision might be avoided. A blast was blown on the New Mexico’s ■siren and a general alarm was sounded. The time between Captain Brown’s order and the collision was estimated at a minute or slightly more.
Witnesses on the New Mexico testified that after the New Mexico had begun her swing to the right, and just before the collision, the Oregon began her swing to her left; that the New Mexico had swung about 350 yards to the right of her original course; that the collision occurred at 4:42 A.M.; that the New Mexico’s bow struck the starboard side of the Oregon at an angle of from 20 to 30 degrees; that from the moment the course of the Oregon could be ascertained by those on the New Mexico, the two ships seemed to be on probable collision courses. One signalman on the New Mexico ventured an estimate of the distance between the New Mexico and the Oregon, when the' lights of the latter came on, at 1,500 yards.
Testimony was given by officers on all three of the destroyers. Lieutenant Farley, officer of the watch on the Sims, stated that at -about 4:35 A.M. he was notified by the port lookout that an unlighted vessel (the Oregon) had been sighted at approximately 355 degrees relative bearing. The then distance of the Oregon from the Sims was estimated at about 4,000 yards. The presence of this strange vessel was reported to the division commander of the destroyers, who was on the Hughes, and the signalman on the Sims was ordered, by means of the blinker tube, to challenge the strange vessel. The Oregon continued her course with no acknowledgment of, or response' to, this signal. -When the lights appeared on the Oregon, she was estimated to be about 1,500 yards. distant from the Sims. Lieutenant Farley could not, with any fair degree of accuracy, fix the time interval between the many occurrences just prior to the collision but contented himself with the estimate of “within 10 minutes or less” between the first sighting of the Oregon and the sounding of the siren on the New Mexico.
Evidence was given by Captain Ramsey and . signalman Dickinson of the' Hughes. The former testified that when he first saw the lights of the Oregon, she was about 2,200 yards from the New Mexico, and that, when the lights appeared on the New Mexico, the distance between the two vessels had been lessened to about 2,000 yards. Dickinson stated that he continuously challenged the Oregon with the blinker tube for one or two minutes, without receiving any response. His estimate of the distance between the Hughes and the Oregon when the two vessels passed each other was 1,500 yards and he stated that the Hughes was then on her station 2,000 yards from the New Mexico.
Lieutenant Hart, officer of the deck on the Russell, added little testimony that was-important. When he was informed by the Sims of the sighting of the Oregon, he located the Oregon through his binoculars,, and the Oregon, then unlighted, appeared to be bearing slightly more than 45 degrees-off the port bow, and to be beyond the destroyer screen.
It would unduly prolong this opinion if an attempt were made to analyze the testimony of many other witnesses who gave evidence in this tragedy of the sea. Libel-ants stress the expert testimony given by Admiral Ainsworth and attempt to make much of the discrepancies, variations and even contradictions shown in the entries in the log books of the New Mexico and the destroyers. As the District Judge pointed out, these might well “be attributable to the conditions under which the entries were made * * *. They were all made after the happenings and represent the different writers’ recollection of the time and sequence of the various events. Under such conditions, it is to be expected that differences in estimates óf time intervals would appear in the different logs.”
Counsel for libelants lay great stress on the failure of the United States to call as witnesses certain specifically named persons: Lieutenant Gentry and quartermaster’s striker Hoover of the New Mexico and Lieutenant Moyer of the Hughes. The District Court, recognizing the general principle that “when a litigant fails to offer witnesses who are available a court may draw the inference that their testimony .would not be helpful,” went on to hold: “But when there are a dozen witnesses to an event and two of them are not called to testify, I know of no authority which compels a court to discredit entirety the testimony of the other ten.” We must sustain that ruling under the circumstances of this case.
We think, too, the District Court did not err in denying the motion of appellants to require the production of the record of the trial before a Navy Court after the collision. The courts have often dealt with the privileged status of such records. And here the United States cooperated rather handsomely in enabling libelants to present their side of this case. The searching interrogations of libelants were all answered; the logs, ships’ records and voyage reports were produced, with the Navy’s permission sought and obtained. The United States disclosed the testimony before the Navy Court of each witness who was called. And there is even evidence, in the record that counsel for the Oregon expressed satisfaction with this arrangement.
Ample authority for this action of the District Court is found in the cases. See, The Wright and the Papoose, D.C.E.D.N.Y., 2 F.Supp. 43; The Australian Star, D.C.S.D.N.Y.1946, A.M.C. 542; Maryland ex rel. Kent v. United States, (D.Md.) 1947 A.M.C. 1338; Anglo-Saxon Petroleum Co. v. United States, D.C., 78 F.Supp. 62. Cf. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451; Admiralty Rule 32, 28 U.S.C.A.; 46 U.S.C.A. § 795; Newell v. Phillips Petroleum Co., 10 Cir., 144 F.2d 338, 340; Bank Line, Limited v. United States, 163 F.2d 133, on remand, 76 F.Supp. 801.
This brings us to the heart of the case: the District Court’s findings of fact and conclusions of law, which absolved the New Mexico and the three destroyers of negligence contributing to the collision and placed the blame and fault solely on the Oregon. Conclusion of law No. 1 held applicable the Starboard Hand Rule of the International Rules of Navigation; Conclusion No. 2 negatived the existence of any emergency or special circumstances (under Article 27, 33 U.S.C.A. § 112) which either rendered these rules inapplicable or justified a departure from them; Conclusion No. 3 imposed upon the Oregon, as the burdened vessel, the duty to keep out of the way of the New Mexico; while Conclusion No. 4 emphasized the duty of the New Mexico, the privileged vessel, “to maintain her course and speed until such time as it became apparent to her that a collision could not be averted by the action of the Oregon alone.”
Vital Conclusion of Law, No. 5 reads:
“5. The Oregon was in fault in the following respects, which were the direct and proximate, and sole causes of the collision :
(a) She failed to keep a proper lookout.
(b) She failed to take proper precautions when she first sighted the New Mexico on her starboard side.
(c) After the ships were lighted and it was disclosed that they were crossing courses, she continued her course and speed and failed to make any effort to keep out of the way of the New Mexico and to avoid crossing ahead while there was adequate time to have taken avoiding action.
(d) When turning to her left immediately before the collision, she failed to give any warning of her change of course.”
There is ample evidence to support the finding [(a) above] that the Oregon failed to keep a proper lookout. This is inescapable if we accept (as the District Judge did not) the testimony of those on the Oregon with respect to the distance at which the New Mexico was first, sighted. Even, however, if this evidence be disregarded, and ,if the Oregon and the New Mexico were much further apart when the Oregon first sighted the loom of the New Mexico, the evidence here points clearly to a lack of care on the part of the lookouts of the Oregon. By Captain Gillette’s admission, the range of visibility for an unlighted vessel was between one and one-half miles and two miles; other witnesses indicated an even longer range.
Though the New Mexico was larger than the Oregon, with the loom of the battleship more easily visible, the New Mexico sighted the Oregon an appreciable length of time before the Oregon saw the battleship. The New Mexico, the Sims and the Hughes sighted the Oregon at distances of from 3,000 to 5,000 yards. Although the Oregon passed into the screen between the destroyers Sims and Hughes at a distance necessarily not more than 1,300 yards from one of them (the evidence indicates that she passed closer than this to the Hughes), no one on the Oregon saw any of the destroyers until the Oregon started her left turn immediately before the collision. Witnesses on behalf of the Oregon, moreover, stated that she never saw the signals directed at her by blinker tube from the destroyer.
Probably the most important question in this case, and the one most strongly emphasized by counsel, is whether or not, under the circumstances here existing, the Starboard Hand Rule is applicable. “The International Rules for Navigation at Sea” provide:
Article 19, 33 U.S.C.A. § 104. “When two steam vessels are crossing, so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way of the other.”
Article 21, 33 U.S.C.A. § 106. “Where, by any of these rules, one of two vessels is to keep out of the way the other shall keep her course and speed.
“Note. — When, in consequence of thick weather or other causes, such vessel finds herself so close that collision can not be avoided by the action of the giving-way vessel alone, she also shall take such action as will best aid to avert collision.”
Article 22, 33 U.S.C.A. § 107. “Every vessel which is directed by these rules to keep out of the way of another vessel shall, if the circumstances of the case admit, avoid crossing ahead of the other.”
Article 23, 33 U.S.C.A. § 108. “Every steam vessel which is directed by these rules to keep out of the way of another vessel shall, on approaching her, if necessary, slacken her speed or stop or reverse.”
Article 27, 33 U.S.C.A. § 112. “In obeying and construing these rules due regard shall be had to all dangers of navigation and collision, and to any special circumstances which may render a departure from the above rules necessary in order to avoid immediate danger.”
Article 29, 33 U.S.C.A. § 121. “Nothing in these rules shall exonerate any vessel, or the owner or master of crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.”
The New Mexico contends that the Starboard Hand Rule applies, which would make her the privileged vessel (and the District Court so held); while the Oregon insists that here was a case of sudden circumstances or emergency falling under the Note, above set out. If the Starboard Hand Rule does control, it is, of course, quite clear that the New Mexico was the privileged vessel and the Oregon the burdened vessel.
In this connection, very important are the District Court’s Findings Of Fact Nos. 4, 5 and 6:
“4. The Oregon sighted the loom of the New Mexico when about one mile or a little more distant from the latter. On sighting the New Mexico the Oregon immediately turned on her lights and within 20 seconds thereafter the New Mexico became lighted. Both vessels became lighted when they were from 1500 to 2200 yards apart.
5. When both vessels became lighted it was apparent, or should have been apparent, to each of them that they were on crossing and probably collision courses. At all times the Oregon’s bearing from the New Mexico was well on the latter’s port bow and the New Mexico was bearing well on the Oregon’s starboard bow.
6. When both vessels had become lighted and it was apparent to both that they were on crossing courses, the Oregon had adequate time to avoid crossing ahead of the New Mexico by stopping or slackening her speed or by turning to her right. However, the Oregon, from the time of sighting the New Mexico and thereafter, continued her course and speed until approximately a minute before the collision when she turned to her left across the course of the New Mexico in an attempt to avoid collision. The Oregon at no time prior to the collision slackened her speed nor did she give any signal of her intentions or plan of conduct.” There is ample evidence in the record to sustain these findings, which we cannot hold to be clearly erroneous, and they furnish adequate basis for the District Court’s Conclusions of Law No. 5, (b), (c) and (d) set out above.
We think that the failure of the Oregon, under the Starboard Hand Rule, to take, as the burdened vessel, prompt and proper avoiding action (when there was time and opportunity for this) was the primary cause of the collision.
The Oregon, too, was (as the District Judge held) at fault when, immediately before the collision, she failed to give a warning signal of her course change to port. According to the captain of the Oregon, this desperate manoeuver was undertaken in the hope that the New Mexico might cooperate by turning to her (New Mexico’s) starboard; but the New Mexico’s captain could undertake no intelligent cooperation here so long as he was ignorant of what the Oregon would do.
The New Mexico was not at fault in holding her course and speed; for this was her duty under the Starboard Hand Rule. Many cases have set out the imperative nature of this duty and the importance of its observation by the privileged vessel. Thus, in The Norfolk, D.C., 297 F. 251, 255, modified on other grounds, Phillips v. Clyde S. S. Co., 4 Cir., 17 F.2d 250, District Judge (now Circuit Judge) Soper succinctly said: “This duty is as definite and precise as the duty of the burdened vessel to keep out of the way.” And District Judge Watkins, speaking for our Court in The Piankatank, 4 Cir., 87 F.2d 806, 810, crisply stated:
“Where two courses are open to a vessel, and particularly to the privileged vessel, one to follow the prescribed rules and the other to depart from them, the duty is imperative to observe the rules, and to assume that an approaching vessel will do likewise, until after the danger has become so manifest as to show that there is no proper choice of judgment other than that of departing from the rules. Any other course would lead to confusion and be a most prolific source of accidents. Indeed the rule is so imperative that it does not give a navigating officer any general latitude as to obeying the rules, and permits a departure only when necessary to avoid immediate, and not remote or problematical, danger, and then only to the extent required to accomplish that object.”
In Belden v. Chase, 150 U.S. 674, 699, 14 S.Ct. 264, 272, 37 L.Ed. 1218, it was said:
“Obedience to the rules is not a fault, even if a different course would have prevented the collision; and the necessity must be clear, and the emergency sudden and alarming before the act of disobedience can be excused. Masters are bound to obey the rules, and entitled to rely on the assumption that they will be obeyed, and should not be encouraged to treat the exceptions as subjects of solicitude, rather than the rules.”
To the same effect, see Marsden, Collisions at Sea, a standard English authority, 7th Ed., page 344; Farwell, The Rules of the Nautical Road, 2nd. Ed. 1944, page 214; Laboyteaux, The Rules of the Road at Sea, 170. And see, also, The Albert Dumois, 177 U.S. 240, 249, 20 S.Ct. 595, 44 L.Ed. 751; The Oregon, 158 U.S. 186, 15 S.Ct. 804, 39 L.Ed. 943; Matron Navigation Co. v. Pope & Talbot, Inc., 9 Cir., 149 F.2d 295, certiorari denied 326 U.S. 737, 66 S.Ct. 46, 90 L.Ed. 439; The Fred B. Dalzell, Jr., 2 Cir., 45 F.2d 580, 581; The Manaway, D.C., 257 F. 476, 477; Yang-Tsze Insurance Association v. Furness Withy & Co., 2 Cir., 215 F. 859, certiorari dimissed 242 U.S. 430, 37 S.Ct. 141, 61 L.Ed. 409.
There is no merit in the contention that merely because, at some time prior to the collision, the vessels were all blacked out the Starboard Hand Rule does not apply. See, The Jarrix, 1 Lloyd’s List L.R. 93, 95; The F. J. Wolfe, 79 Lloyd’s List L.R. 111. When the lights of the Oregon and the New Mexico came on, and the courses of the two vessels were thus ascertainable, the Oregon should have realized the situation as one governed by the Starboard Hand Rule and, as the burdened vessel, when there was ample time and opportunity, should have promptly taken proper avoiding action. There was then time for seamanly appraisal of the situation and seamanly action by the Oregon in the light thereof, which would have prevented the collision. As was said in Cuba Distilling Co. v. Grace Line, Inc., 2 Cir., 143 F.2d 499:
“But no emergency will excuse the absence of all clear thinking; after all, men, charged with responsibilities of command, must not be wholly incapacitated for sound judgment when suddenly thrust into peril. Part of their equipment for their duties is some ability to think, be the situation ever so sudden and so grave.”
There are cases suggesting that the Starboard Hand Rule is not to be strictly applied in blackout conditions but that this rule is grounded in what might be called the normal conditions of navigation. Any general statements in the opinions in those -cases must be read in connection with the inhibiting effect of the absence of lights in the special situations therein found to exist. And those situations were quite different from the facts ■ of the instant case before us. See, Publicover v. Alcoa Steam Ship Co., 2 Cir., 168 F.2d 672; Lind v. United States, 2 Cir., 156 F.2d 231; The Pierre Loti, 78 Lloyd’s List L.R. 193; The Dominion Monarch, 71 Lloyd’s List L.R. 110, affirmed 73 Lloyd’s List L.R. 229. Cf. Oriental Trading & Transport Co. v. Gulf Oil Corporation, 2 Cir., 173 F.2d 108.
Here, Captain Gillette testified that the bearing of the New Mexico remained constant from the time of sighting until her lights were seen. This indicated that, if the vessel was approaching, she was on a collision course, and, as she was on the starboard bow of the Oregon, it was the duty of the latter to stay out of her way. A prudent seaman would not have waited to ascertain whether a dark vessel to starboard was approaching or going away, but would have acted immediately to get off the possible collision course.
Nor did the District Judge err in absolving the New Mexico from fault in failing to show her lights earlier. Imperative wartime orders, for the blackout of vessels cannot be lightly ignored. And such orders would indeed be of little use, if a battleship, immediately upon sighting the loom of a vessel of unknown nature and nationality, ■ must turn on her running lights. See Petition of United States (The Friar Rock), D.C., 69 F.Supp. 538, 542. There must be a balancing of two perils, wartime attack and collision, to determine which is dominant. As was said by District Judge Goddard, in The Corozal, D.C., 62 F.Supp. 123, 126:
“When confronted with a situation of special circumstances, such as the imminent danger of collision, it is the duty of a vessel, even when proceeding without lights pursuant to orders of the Navy, to promptly 'tarn oii her running lights to warn the other vessel of her position and heading.” (Italics ours.)
And, as we have held, after the lights of both vessels, the Oregon and the New Mexico, came on, there was ample time and opportunity for effective avoiding action by the Oregon. ,
No just complaint can be made of the action of Captain Brown of the New Mexico immediately prior tp. the collision, which was taken only when it was apparent to him that it was too late for the Oregon to avert a collision by her own action. He then put the New Mexico under full right rudder, with full back on all her engines, and sounded one blast on her siren. It seems a fair assumption on his part, particularly in the absence of any signal from the Oregon, that the Oregon would steer right rather than left. And courts are rather unwilling to judge strictly the avoiding action taken by the privileged vessel, when, as here, this action must be taken in extremis due to the fault of the burdened vessel. See, Wilson v. Pacific Mail Steam Ship Co., 276 U.S. 454, 48 S.Ct. 369, 72 L.Ed. 651; The Piankatank, 4 Cir., 87 F.2d 806, 809-810; Matson Navigation Co. v. Pope & Talbot, Inc., 9 Cir., 149 F.2d 295; The Nordpol, 2 Cir., 84 F.2d 3, certiorari denied 299 U.S. 586, 57 S.Ct. 111, 81 L.Ed. 432.
This brings us to the charge, first made by appellants in their amended libels, of negligence, contributing to the collision, on the part of the destroyers. As the District Judge found, this charge, too, is without substance. When the Oregon was sighted, before her lights came on, she was challenged by the Sims on Oregon’s starboard and the Hughes on her port, by means of the blinker tube which is credited with an effective range of 4 miles. This challenging continued until after both the Oregon and New Mexico had shown their lights. Those on the Sims and the Hughes then had every reason to believe that the signals of the blinker tubes had been perceived by the Oregon, and that with the Oregon and New Mexico both lighted and still distant enough to avoid any collision, there was no hazard which called for further action from the destroyers. Indeed, any further signalling by the destroyers might well have harmed the Oregon by diverting the attention of her officers to the destroyers and away from the New Mexico.
Little need be said as to the conduct of the naval vessels after the collision. Indeed, appellants do not seem seriously to stress this point. The search-light of the New Mexico disclosed the damage to the Oregon. For about a,n hour, the naval vessels manoeuvered in the vicinity of the collision. The Sims was ordered to escort the Oregon as long as was necessary, when the Oregon decided to proceed on her way. And the Sims remained with the Oregon until about 10:30 A.M., when Captain Gillette of the Oregon informed the Sims that the assistance of the Sims was no longer needed. Whereupon, the Sims rejoined the formation of the other naval vessels.
We must sustain the District Judge’s conclusion that the Captain of the Oregon was free from negligence in either his decision to make for the port of Boston or his seamanship in attempting to carry out that decision. At about 10:30 A.M. the Oregon was off the Nantucket Shoals Lightship, she was making good speed, practically all water had been pumped from her holds and conditions of sea and weather were favorable. And Captain Gillette had no reason to anticipate the unfavorable change in the weather which began about an hour later, and steadily became worse until the sinking of the Oregon in the early afternoon.
For the reasons hitherto set out, the decree of the District Court is affirmed.
Affirmed.
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 33? Answer with a number.
Answer:
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songer_state
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54
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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".
Mohammad SAMI, Appellant, v. UNITED STATES of America et al.
No. 78-1975.
United States Court of Appeals, District of Columbia Circuit.
Argued Sept. 19, 1979.
Decided Dec. 28, 1979.
William W. Becker, Washington, D. C., with whom Virginia A. McArthur, Washington, D. C., was on the brief, for appellant.
E. Anne McKinsey, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Michael W. Farrell, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellees.
Before McGOWAN, LEVENTHAL and WALD, Circuit Judges.
Opinion for the Court filed by Circuit Judge WALD.
United States Attorney at the time the brief was filed.
Circuit Judge Leventhal was a member of the panel which considered this case but died before the opinion was issued.
WALD, Circuit Judge:
This case is a tragedy of errors. It represents an extension of and embroils the United States Government and its officials in what a Maryland appellate court has called “an almost incredible history of marital warfare, with skirmishes occurring up and down the eastern seaboard of this country, as well as abroad.” Sami v. Sami, 29 Md.App. 161, 163-64, 347 A.2d 888, 890 (1975).
I. FACTUAL BACKGROUND
For more than a year preceding the events which gave rise to this suit, plaintiff, a citizen of Afghanistan and an economist stationed at the International Monetary Fund in Washington, had been engaged in a custody dispute with his American wife over their two children. Each had secured in different states, he in Maryland, she in Florida, a court order granting custody over the offspring. At the time of this latest chapter, the children were physically in Florida. Their father had consulted with Washington, D. C. counsel concerning his children’s custody. He was advised to go to Florida and physically bring the children back to Maryland where he had legal custody. His District of Columbia counsel also told him to consult with Florida counsel about the legality of such action. Florida counsel warned him that he would technically be violating Florida law if he removed the children.
Plaintiff went to Florida, and together with a detective hired to assist him for this purpose, transported the children back to Maryland. Plaintiff and the children arrived in Maryland on May 10. Shortly after plaintiff’s arrival there, upon information supplied by Mrs. Sami and presented to a state judge in Broward County, Florida, two warrants were issued for plaintiff’s arrest for taking the children out of state in violation of a Florida court order. Upon the request of the Broward County Sheriff’s Department, and on the basis of the Florida warrants, a Maryland court on May 11 issued a warrant for plaintiff’s arrest. Plaintiff was arrested, appeared in court, and was released on posting a personal recognizance bond of $1000 pending a hearing set for June 19. A condition of the bond was that he not change “residence” in the meantime. The bond did not require that he or the children remain in Maryland, or in the country.
Suspecting plaintiff intended to leave the country with the children, Mrs. Sami, her father and her counsel sought intervention by the United States National Central Bureau (USNCB), of the Department of the Treasury, this country’s liaison with the International Criminal Police Organization (Interpol), to stop him. The first contact with the USNCB was made on May 9. On May 12, when Mrs. Sami informed defendant Sims, chief of the USNCB, of plaintiff’s and the children’s imminent departure from the country, she was told to contact the FBI, Dulles Airport Police and the State Department. Although detained for a few minutes (without the intervention of USNCB), the plane was permitted to leave.
Mrs. Sami had informed the USNCB the day before of the outstanding Florida warrant for plaintiff’s arrest. The warrant’s existence was not confirmed, however, until Sims contacted the Florida sheriff’s office after the plane’s departure. Shortly after verifying the Florida warrants Sims was advised by Mrs. Sami’s lawyer that a Maryland judge intended to issue a bench warrant for plaintiff’s arrest the next morning. Sims confirmed that intent by placing a telephone call to the judge.
Mrs. Sami’s father had earlier been coun-selled by defendant Holmes, Deputy Chief of the USNCB, that the USNCB could do nothing without a request from a law enforcement agency. In response to still another communication after the plane departed, Mrs. Sami’s lawyers were told by Sims that foreign police departments would not be notified of the outstanding Florida warrants until the Broward County Florida State’s Attorney replied to a USNCB inquiry regarding that Attorney’s desire to have the plaintiff arrested and that Attorney’s intention to seek extradition. Shortly after this conversation with Mrs. Sami’s attorneys, Sims was advised by the Bro-ward County Sheriff’s office that the State’s Attorney had authorized plaintiff’s arrest and the initiation of extradition proceedings. Sims knew at the time that only the State Department and not a state or any of its officers or instrumentalities could request extradition from a foreign jurisdiction.
Beginning that evening and continuing throughout the next two days, Sims dispatched a flurry of messages to Interpol liaisons at several points on the plaintiff’s expected route, including London, Rome and Wiesbaden. The first said that plaintiff was wanted on a Florida warrant, requested his immediate arrest, and stated that “Florida will extradite.” Among the reply communications received was one from Rome stating that Italian authorities could do nothing because the warrant was issued in a civil dispute which in their jurisprudence did not justify extradition. On May 13 Sims sent communiques to several Interpol liaisons, including Wiesbaden, which a) stated that the “United States [rather than Florida] will extradite,” b) stated that the Maryland custody order was good only in Maryland and had been superseded by an arrest warrant for plaintiff issued by a Maryland court, and c) characterized the Maryland arrest warrant as a felony warrant. Sims later admitted on deposition that a) when he said the “United States will extradite” he meant Florida would ask the United States to extradite, b) that he just assumed from his conversation with the Maryland judge that a bench warrant on the bond “superseded” the Maryland order granting custody and c) that he had no basis for saying that the Maryland warrant was for a felony. He also admitted that at no time in the unfortunate incident did he contact anyone in the State or Justice Departments to clarify any of this and that he had not read the German-American extradition treaty until after the incident was over.
On May 14 the German authorities arrested plaintiff at Frankfurt, gave the children over to their mother who had been following the plane, and detained plaintiff. The following morning they notified Sims of their action and requested in two communications that the formal extradition request quickly be forwarded through diplomatic channels. On May 16 the State Department determined that no extraditable offense was involved. German officials were so informed both by Sims and through diplomatic channels and were requested to release plaintiff. Although this message appears to have been conveyed on May 16, plaintiff was not in fact released until May 18, four days after his original detention.
The incident provoked the sending of a note from the Afghanistan Embassy to the State Department, and a reply from the State Department, referring to plaintiff’s detention as “improper.” A meeting held June 3,1975, between Departments of State and Justice and USNCB officials resulted in guidelines under which USNCB undertook to consult with the State Department before notifying other countries that a request for provisional arrest will be forwarded through diplomatic channels.
Plaintiff brought suit against Interpol, the United States Government and USNCB officials Sims and Holmes individually for false arrest and imprisonment, libel and slander, and deprivation of his fourth and fifth amendment constitutional rights. The case comes to us on appeal from dismissals of all claims. Summary judgment in favor of defendants United States and Holmes was granted on October 19, 1977. The claims against defendant Interpol were dismissed the same day. Summary judgment in favor of defendant Sims was granted on July 22, 1978. We now consider the claims against each defendant separately.
II. PLAINTIFF’S CLAIM AGAINST INTERPOL
Interpol is an organization whose aims, according to its constitution, are “(a) to ensure and promote the widest possible mutual assistance between all criminal police authorities within the limits of the law existing in the different countries and in the spirit of the ‘Universal Declaration of Human Rights’ and “(b) to establish and develop all institutions likely to contribute effectively to the prevention and suppression of ordinary law crimes.” Interpol Const, art. 2 (1968), Joint Appendix (J.A.) 243.
Interpol has linked offices designated by its various members and its own Paris headquarters with a worldwide radio network. Congress has been informed that “INTERPOL’S function is to provide the coordination and communications mechanism for law enforcement agencies (local, state or Federal) having a foreign investigative requirement and to transmit that requirement to other appropriate foreign law enforcement agencies.” Treasury, Postal Service and General Government Appropriations for Fiscal Year 1977: Hearings on H.R. 14261 before the Subcomm. on Treasury, Postal Service and General Government of the Senate Comm, on Appropriations, 94th Cong., 2d Sess. 169 (February 24, 1976) (statement of David R. Macdonald, Assistant Secretary of Treasury (Enforcement, Operations and Tariff Affairs)) [hereinafter cited as 1976 Senate Appropriations Hearings ].
The United States’ participation in Interpol has been authorized by statute. 22 U.S.C. § 263a (1976). The United States has designated the USNCB, formerly of the Department of Treasury, now of the Justice Department, to act as this country’s Interpol liaison. USNCB employs several full-time employees, including, at the time of these events, defendants Sims and Holmes.
Plaintiff attempted to obtain jurisdiction over Interpol by serving Sims and by serving Stuart Knight, the director of the United States Secret Service and a vice-president of Interpol. Interpol did not respond although the United States Attorney for the District of Columbia, in response to plaintiff’s motion for a default judgment against Interpol, moved for and was granted leave as amicus curiae to “suggest” lack of proper service. Plaintiff had made service under Rule 4(d)(7), Fed.R.Civ.P. invoking Section 13-334 of the District of Columbia Code, alleging that Interpol was a corporation “which does business... in Washington, D. C.,” and that Sims and Knight were its “agents.” The court concluded, however, that Interpol was not “doing business” in the District of Columbia, denied plaintiff’s motion for default and dismissed the action as against Interpol. We affirm the district court’s dismissal in this respect.
International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), remains the touchstone for analysis of the constitutional limitations on a court’s exercise of personal jurisdiction. International Shoe is perhaps best and most frequently remembered for its use of the words “minimum contacts,” id. at 316, 66 S.Ct. 154, but that phrase did not denote a mechanical or quantitative assessment of the defendant’s activities. Id. at 319, 66 S.Ct. 154. The Court clearly thought the relationship between a defendant’s contact with the state and the claim asserted against that defendant of considerable importance. Id. at 319, 320, 66 S.Ct. 154. The test is one which must look to the totality of the circumstances. Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 445-46, 72 S.Ct. 413, 96 L.Ed. 485 (1952).
Taken as a whole this record does not support plaintiff’s argument that in the sending or receiving of messages this country’s National Central Bureau designated in accordance with the Interpol constitution, USNCB, acts as an agent of Interpol. The record tends rather to suggest that the USNCB acted exclusively as an agent of the national government which created, staffed, financed and equipped it. For example, the parties have stipulated that the USNCB is a bureau of the U. S. Treasury, that it answers to the Assistant Secretary of the Treasury and to Congress, that it functions in an information liaison capacity, that it employs eleven persons full-time, that all USNCB employees’ salaries are paid by the U. S. government, and that USNCB has franking privileges and uses both Interpol telex equipment and telecommunications facilities owned and operated by the U. S. government. Nothing in the-record indicates that the USNCB employees take orders or receive binding instructions in the performance of their duties from Interpol. Thus the contacts which Interpol has with the forum do not, insofar as appears from this record, consist of the presence within the forum of “agents” for the exchange of law enforcement messages.
Nor does the record establish that the USNCB communications received in this forum from abroad were initiated by Interpol or agents of Interpol. From all that appears the officials sending the messages operated in a capacity strictly analogous to our own USNCB officials, i. e., as agents of their own states’ governments. Thus their communications, received here, cannot suffice as a predicate for personal jurisdiction. Other contacts with the forum supported or even suggested by the record do not themselves demonstrate substantial contact and are individually and collectively too remote from the wrongs alleged to warrant the exercise of personal jurisdiction in this case. See Data Disc, Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1287-88 (9th Cir. 1977). See also Traher v. De Havilland Aircraft of Canada, Ltd., 111 U.S.App.D.C. 33, 294 F.2d 229 (D.C.Cir. 1961) (per curiam) (construing “doing business” within the meaning of the D.C. statute); Mueller Brass Co. v. Alexander Milburn Co., 80 U.S.App.D.C. 274, 152 F.2d 142 (D.C.Cir. 1945) (same). Compare Perkins v. Benguet Consolidated Mining Co., supra.
III. PLAINTIFF’S CLAIM AGAINST THE UNITED STATES
A. The District Court’s Basis For Dismissal
Plaintiff sued the United States under the 1974 amendment to the Federal Tort Claims Act (hereinafter the “Act” or the “FTCA”), Pub.L. 93-253, § 2, 88 Stat. 50 (1974), codified at 28 U.S.C. § 2680(h) (1976), a special proviso to the specific prohibition under the Act of liability for claims “arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” The 1974 amendment permits claims with regard to the acts of “investigative or law enforcement officers of the United States Government” for “assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution.” Id.
The United States below argued against the applicability of the 1974 proviso on the ground that while Sims’ job classification brought him within the proviso’s definition of a “federal investigative or law enforcement officer” as one who “is empowered by law to execute searches, to seize evidence, or to make arrests for violation of the Federal law,” id., his duties as Chief of the USNCB did not involve such responsibilities and the 1974 amendment meant to cover only investigative and law enforcement officers while engaged in the performance of the duties described in the statutory definition. Since Sims in his role as Interpol liaison did not execute searches, seize evidence, or make arrests for violation of Federal law, the government argued, claims arising from his performance as Interpol liaison are not covered by the Act.
The district court, however, dismissed the United States as a defendant not on this ground but on a second ground argued by the government, viz., the FTCA’s exception for “claim[s] arising in a foreign country.” 28 U.S.C. § 2680(k) (1976). The court reasoned that plaintiff would have no case of false arrest or imprisonment if an arrest had not occurred and the arrest in this case occurred in Germany; hence the claim “arose” in a foreign country. Cf. Restatement of Conflict of Laws, § 377 (1934) (tort arises where last event necessary to liability occurs). The district court relied additionally on policy considerations it thought underlay the exception. Prosecution of the suit would require German witnesses and experts on German law to show on what basis plaintiff was actually arrested and detained; it was necessary to plaintiff’s case to show both that the arrest was without legal justification and that it was in fact caused by negligent or wrongful acts of the United States officials. The district judge thought that “[i]n accord with the intent of § 2680(k), the liability of the United States should not be dependent on these evidentiary difficulties and considerations of foreign law” and, accordingly, dismissed the claim against the United States.
B. The Foreign Country Exception, 28 U.S.C. § 2680(k) (1976)
We are not satisfied that if the act or omission complained of occurred in this country, the foreign country exception would apply under the decided cases or should apply given the language of the exception in the context of the Act, the overall approach of the Act to the analysis of liability for tort claims, the legislative intent which appears to underlie the exception, and the policy considerations which might inform our interpretation of the exception.
The entire scheme of the FTCA focuses on the place where the negligent or wrongful act or omission of the government employee occurred. 28 U.S.C. § 1346(b) (1976). Thus, if the negligent or wrongful act occurred in Oklahoma, but the only injury suffered occurred in Missouri, recovery may be had only if Oklahoma’s law (including its choice of law principles) renders a private individual liable under similar circumstances. Richards v. United States, 369 U.S. 1, 9-10, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962).
The district court concluded that under the foreign country exception the tort of false arrest cannot logically “arise” here when the arrest occurs abroad. Whatever its logic, however, the FTCA, for purposes of imposing liability, focuses on the place of the government employee’s act or omission. We think that the exception for claims arising in a foreign country should be read consonantly with the statutory scheme.
Decisions interpreting § 2680(k), the foreign country exception, are few. United States v. Spelar, 338 U.S. 217, 220-21, 70 S.Ct. 10, 94 L.Ed. 3 (1949), contains a discussion of what the Congress thought it was about when it made the exception. The discussion supports plaintiff’s argument that the exception does not apply if the wrongful acts or omissions complained of occur in the United States. Spelar quotes the following interchange during hearings on a predecessor bill (H.R. 6463, 77th Cong., 2d Sess. (1942)) in which “the [foreign] exemption provision assumed the form which was ultimately enacted into law.” 338 U.S. at 220, 70 S.Ct. at 12.
MR. SHEA [Assistant Attorney General, explaining the revised language suggested by the Attorney General]. Claims arising in a foreign country have been exempted from this bill, H.R. 6463, whether or not the claimant is an alien. Since liability is to be determined by the law of the situs of the wrongful act or omission it is wise to restrict the bill to claims arising in this country. This seems desirable because the law of the particular State is being applied. Otherwise, it will lead I think to a good deal of difficulty.
MR. ROBSION [Member of the House Committee on the Judiciary]. You mean by that any representative of the United States who committed a tort in England or some other country could not be reached under this?
MR. SHEA. That is right. That would have to come to the Committee on Claims in the Congress.
Id. at 221, 70 S.Ct. at 12, citing Tort Claims: Hearings on H.R. 5873 and H.R. 6463 before the House Comm, on the Judiciary, 77th Cong., 2d Sess. 35 (January 29, 1942).
No case to our knowledge has held the United States exempt from liability for acts or omissions occurring here which have their operative effect in another country. Indeed, to the extent the decided cases address the issue at all, they have come to a contrary conclusion. Leaf v. United States, 588 F.2d 733 (9th Cir. 1978) (section 2680(k) does not exempt U.S. from liability for negligence in this country which was alleged to have caused airplane damage in Mexico); In re Paris Air Crash of March 3, 1974, 399 F.Supp. 732, 737 (C.D.Cal.1975) (negligence in this country, personal injury in France). See also Roberts v. United States, 498 F.2d 520, 522 n.2 (9th Cir.), cert. denied, 419 U.S. 1070, 95 S.Ct. 656, 42 L.Ed.2d 665 (1974); Bryson v. United States, 463 F.Supp. 908 (E.D.Pa.1978).
It is entirely understandable that Congress should wish to avoid the risk of United States’ exposure to unreasonable liability under foreign law over which this country had no control. This we take to be the primary import of the exchange quoted in Spelar and set out above. It was not, we think, the difficulty of ascertaining foreign law but the prospect of unreasonably imposed liability which actuated the exemption. But this policy consideration has little bearing on a case where the acts or omissions complained of occurred in this country because in such cases liability will be determined under this country’s law. 28 U.S.C. § 1346(b) (1976).
It is true that the FTCA compels only application of this country’s choice of law principles, Richards, supra, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492, and not its substantive law of liability. Nevertheless prevailing conflicts principles in the District of Columbia and elsewhere (in the absence of countervailing statutory direction) permit application of an alternate substantive law when foreign law conflicts with a strong public policy of the forum. See generally Paulsen & Sovern, “Public Policy” in the Conflict of Laws, 56 Colum.L.Rev. 968 (1956). See also Restatement (Second) of Conflict of Laws § 6(2)(b) (1971) (relevant policies of the forum one of many factors in choice of law). Application of such principles will preserve the United States from unreasonably imposed liability.
The difficulties of obtaining evidence from abroad might have concerned Congress in enacting the foreign country exemption, but there is no evidence that it did so.
C. The Law Enforcement Officer Proviso, 28 U.S.C. § 2680(h) (1976)
Our conclusion that the claim is not exempt under § 2680(k) does not, however, end our inquiry. For, as already mentioned, the government argues that the newly broadened liability under § 2680(h) does not apply to officers who do not themselves make arrests, seize evidence, etc. Even if the § 2680(h) proviso does apply to such officers, the government continues, the “discretionary function” exception contained in § 2680(a) exempts the United States from liability for the actions complained of here. •
The application of § 2680(h) to persons like Sims who have been classified by the United States Civil Service as “criminal investigator [s]” even though their present duties do not involve frontline law enforcement work is a novel one, not solved by resort to the brief legislative history or to already decided cases. In this case the government stipulated that the USNCB was staffed professionally only by trained law enforcement personnel and Congress has been assured that requests for criminal information will be handled only by persons so trained. On the other hand, it is also admitted that the USNCB officers do not initiate or conduct investigations of their own but act primarily as conduits and screeners of information between foreign police departments and federal and state counterparts.
The Senate report on the amendment to § 2680(h) describes its purpose broadly:
The effect of this provision is to deprive the Federal Government of the defense of sovereign immunity in cases in which Federal law enforcement agents, acting within the scope of their employment, or under color of Federal law, commit any of the following torts: assault, battery, false imprisonment, false arrest, malicious prosecution or abuse of process. Furthermore, this provision should be viewed as a counterpart to the Bivens case and its progenty [sic], in that it waives the defense of sovereign immunity so as to make the Government independently liable in damages for the same type of conduct that is alleged to have occurred in Bivens (and for which that case imposes liability upon the individual Government officials involved).
This whole matter was brought to the attention of the Committee in the context of the Collinsville raids, where the law enforcement abuses involved Fourth Amendment constitutional torts. Therefore, the Committee amendment would submit the Government to liability whenever its agents act under color of law so as to injure the public through search and seizures that are conducted without warrants or with warrants issued without probable cause. However, the Committee’s amendment should not be viewed as limited to constitutional tort situations but would apply to any case in which a Federal law enforcement agent committed the tort while acting within the scope of his employment or under color of Federal law.
S.Rep. No. 588, 93rd Cong., 1st Sess. 3-4 (1973).
We deduce from this report an intent to “provid[e] a remedy against the Federal Government for innocent victims of Federal law enforcement abuses,” id. at 4, and we find no indication that it was not meant to cover the situation where law enforcement officers are assigned to duties that do not involve their actual participation in making arrests or conducting investigations. By defining “investigative or law enforcement officer” and by limiting the wrongs covered in the § 2680(h) exception to false arrest, false imprisonment, malicious prosecution or abuse of process, Congress set finite boundaries around the kind of law enforcement abuses for which it wished to make the government liable.
We are not inclined to read into the language which Congress used a narrower limitation on liability than that suggested by the plain meaning of the words. In our view Sims was an “investigative or law enforcement officer of the United States Government” within the meaning of the 1974 proviso. Whether the complaint otherwise states a claim for which the United States is not exempt from liability under § 2680(h) is a question we leave to the district court on remand.
D. The Discretionary Function Exemption, 28 U.S.C. § 2680(a) (1976)
The government asserts that the United States would have been immune from suit in any event pursuant to the statutory exception in § 2680(a) which provides that the United States shall not be liable for acts “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or any employee of the Government, whether or not the discretion involved, be abused.” 28 U.S.C. § 2680(a) (1976).
This “discretionary function exception” to the FTCA has spawned much litigation. After initial confusion following the Supreme Court’s broad construction of the exception in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), many courts, including our own, accepted a distinction based upon language in that case to the effect that “operational” duties as opposed to “planning” duties did not fall within the exception, even though the former inevitably required judgment and discretion. Thus in Eastern Airlines, Inc. v. Union Trust Co., 95 U.S.App.D.C. 189, 221 F.2d 62, aff’d mem. sub nom., United States v. Union Trust Co., 350 U.S. 907, 76 S.Ct. 192, 100 L.Ed. 799 (1955), we decided that negligent acts of airport control tower operators were not within the exception. “[Djiscretion was exercised when it was decided to operate the tower, but the tower personnel had no discretion to operate it negligently.” 95 U.S.App.D.C. at 204, 221 F.2d at 77. The Supreme Court’s decision in Indian Towing Co. v. United States, 350 U.S. 61, 69, 76 S.Ct. 122, 126-27, 100 L.Ed. 48 (1955), offers support for such a distinction. In that case the Court ruled the government could be held liable under the FTCA for negligent operation of a lighthouse.
The Coast Guard need not undertake the lighthouse service. But once it exercised its discretion to operate a light on Chan-deleur Island and engendered reliance on the guidance afforded by the light, it was obligated to use due care to make certain that the light was kept in good working order; and, if the light did become extinguished, then the Coast Guard was further obligated to use due care to discover this fact and to repair the light or give warning that it was not functioning. If the Coast Guard failed in its duty and damage was thereby caused to petitioners, the United States is liable under the Tort Claims Act.
See also Rayonier, Inc. v. United States, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957) (United States might be held liable for negligent firefighting by Forest Service employees). See generally Reynolds, The Discretionary Function Exception of the Federal Tort Claims Act, 57 Geo.L.J. 81 (1968). In our own circuit application of the planning-operational test has resulted in decisions holding the United States liable where it negligently denied a medical certificate to an eligible pilot, Duncan v. United States, 355 F.Supp. 1167, 1170 (D.D.C. 1973), but immune for allegedly negligent implementation of a riot control plan, Monarch Ins. Co. of Ohio v. District of Columbia, 353 F.Supp. 1249, 1256-59 (D.D.C.1973), aff’d mem., 162 U.S.App.D.C. 96, 98, 497 F.2d 683-85, cert. denied, 419 U.S. 1021, 95 S.Ct. 497, 42 L.Ed.2d 295 (1974) (“Policy considerations directly related to objectives which are, in the strictest sense of the term, governmental or political pervade every phase of planning and executing a riot control program,” 353 F.Supp. at 1258), and immune for an administrator’s decision not to distribute to federally funded clinics promulgated guidelines concerning sterilization, Relf v. United States, 433 F.Supp. 423 (D.D.C.1977), aff’d mem., 593 F.2d 1371 (1979).
The multitude of cases applying the exception to a variety of fact situations are conveniently catalogued in Blessing v. United States, 447 F.Supp. 1160 (E.D.Pa.1978). Although the cases create more of a “patchwork quilt” than a “seamless web,” id. at 1167, there are persistent themes, e. g., holding the government responsible for any negligent execution of admittedly discretionary policy judgments where the decisions required for the execution did not themselves involve the balancing of public policy factors. Id. at 1179-80 n.28. Cases construing the exception in the law enforcement context have held it to exempt NLRB delay due to shortage of personnel in filing specification of back pay in connection with reinstatement order, J. H. Rutter Rex Mfg. Co. v. United States, 515 F.2d 97, 99 (5th Cir. 1975), cert. denied, 424 U.S. 954, 96 S.Ct. 1428, 47 L.Ed.2d 359 (1976); failure of U. S. Attorney to prosecute a wrongdoer, Smith v. United States, 375 F.2d 243 (5th Cir.), cert. denied, 389 U.S. 841, 88 S.Ct. 76, 19 L.Ed.2d 106 (1967); a State Department official’s advice to Puerto Rican officials that the United States did not object to the release to Venezuelan officials of a privately owned plane, Four Star Aviation v. United States, 409 F.2d 292 (5th Cir. 1969); and management of a crowd and surrounding campus population during the integration of a southern university, United States v. Faneca, 332 F.2d 872 (5th Cir. 1964), cert. denied, 380 U.S. 971, 85 S.Ct. 1327, 14 L.Ed.2d 268 (1965). On the other hand, the exception has been rejected as applied to an FBI agent’s on-the-spot decision to fire at a hijacked plane, Downs v. United States, 522 F.2d 990 (6th Cir. 1975); and failure to provide police protection to an endangered informant, Swanner v. United States, 309 F.Supp. 1183 (M.D.Ala.1970).
The Blessing court concluded from its survey of the field that the policy of the exception was to “prevent[] tort actions from becoming a vehicle for judicial interference with decisionmaking that is properly exercised by other branches of the government,” and that the exception exempts the United States from liability only where “the question is not negligence but social wisdom, not due care but political practicability, not reasonableness but economic expediency. Tort law simply furnishes an inadequate crucible for testing the merits of social, political, or economic decisions.” Id. at 1170.
On the present record there is no clear indication that the decisions by this USNCB official concerning the nature of the information transmitted abroad, including the status of an extradition request, were essentially “political,” “social” or “economic” or necessarily involved any policy-making function at all. Indeed the scope of the USNCB official’s discretion is disputed on this record; it is of course partly a question of law but also partly a question of fact, on which we do not feel the evidence is sufficiently undisputed for us to make the initial decision here. See Carter v. Carlson, 144 U.S.App.D.C. 388, 394, 447 F.2d 358, 364 (D.C.Cir. 1971), rev’d on other grounds sub nom., District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973); David v. Cohen, 132 U.S.App.D.C. 333, 336, 407 F.2d 1268,1271 (D.C.Cir. 1969). In short, whether the acts for which liability is here claimed were so fraught with foreign relations or other public policy considerations as to render them “discretionary” within the meaning of the FTCA cannot be summarily determined on this record.
Our conclusion that there is no clear out for the government on this record under the “discretionary exception” is bolstered by some uncertainty as to whether in enacting the law enforcement proviso to the § 2680(h) exception Congress meant to preserve the discretionary exception at all for those enumerated torts contained in the proviso. See discussion in Boger, Gitenstein & Verkuil, The Federal Tort Claims Act Intentional Torts Amendment:
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_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
ROBINSON v. COMMISSIONER OF INTERNAL REVENUE.
No. 7386.
Circuit Court of Appeals, Ninth Circuit.
Nov. 19, 1934.
Robert T. Jacob, of Portland, Or., for petitioner.
Frank J. Wideman, Asst. Atty. Gen., and Sewall Key, M. II. Eustace, and Carlton Fox, Sp. Assts. to Atty. Gen., for respondent.
Before WILBUR, SAWTELLE, and GARRE CHT, Circuit Judges.
WILBUR, Circuit Judge.
Petitioner seeks a review of the decision of the Board of Tax Appeals approving the determination by the Commissioner of Internal Revenue of a deficiency of $3,597.28 in the income tax of petitioner for the year 1927.
Petitioner, a resident of Portland, Or., acquired in 1917 all of the capital stock of the Molalla Electric Company at a cost of $45,000 and sold the same to the Portland Electric Power Company in February, 1927. The selling price of the stock was $87,500, $17,500 of which was paid in cash. The deferred payments were evidenced by sixteen notes totaling $70,000, four of which, totaling $17,500, became duo on March 1st of each of the years 1928, 1929, 3930, and 1931. During the year 1927, petitioner purchased some real estate and gave the eight notes due March 1, 1928, and March 1, 1929, totaling $35,000, as part payment therefor and petitioner guaranteed payment of the same.
Petitioner claims that he is entitled to return the income from the sale of his stock in the Molalla Company upon the installment basis under section 212 (d) of the Revenue Act of 1926 (26 USCA § 953 (d) and assigns as error the holding of the Board of Tax Appeals that “the petitioner, having in said taxable period received in cash and property as initial payment more than one fourth the purchase price at which he sold his Molalla Electric Co. stock, is not entitled, in our opinion and we so determine, to have his tax on the profit computed on the installment basis, as contended by him.”
This holding of the Board of Tax Appeals is based upon the proposition that by giving the notes for $35,000 as part payment for the real estate during the same taxable year, the petitioner to that extent received an interest therein as part of the initial payment for his stock in the Molalla Company within the meaning of section 212 (d) of the Revenue Act of 1926, supra.
The question here involved has recently been decided by the Circuit Court of Appeals for the Second'Circuit in a similar case [Du-ram Building Corporation v. Commissioner of Internal Rev., 66 F.(2d) 253, 254] contrary to the conclusion reached by the Board of Tax Appeals. The Circuit Court of Appeals in Duram Building Corp. v. Commissioner, supra, stated:
“Therefore, as we interpret section 212 (d), the privilege of reporting upon the installment basis depends upon the transactions between the vendor and purchaser of the land during the taxable period; it is not made conditional upon what disposition the vendor may make of the purchaser’s evidences of indebtedness by transactions with third parties during the taxable period in which the land was sold. Such transactions are separate and independent and will themselves he the basis for a return of profit or loss.”
Respondent now concedes that petitioner is entitled under the provisions of section 212 (d), supra, to return the ineome from the sale of his stock on the installment basis as held in Duram Building Corp. v. Commissioner, supra. However, respondent contends that the transaction in 1927 whereby petitioner transferred eight of these notes maturing March 1, 1928, and. 1929, aggregating $35,-000, at their face value, as part payment for real estate, resulted in a gain or profit to petitioner and should be included in petitioner’s income tax return for 1927. This, respondent claims, is such a transaction as is referred to in the Duram Case as “separate and independent and will themselves be the basis for a return of profit or loss” and results in this case in a realization of the gain from the transaction to the extent that such gain was included in the installment notes transferred. This also is conceded by the petitioner as a correct application of the law where the exchange of the installment notes is made without recourse. But he contends that there was no gain or loss realized or determinable from this second transaction during 1927, the taxable year in question, because the petitioner guaranteed the payment of the notes so transferred and thus he did not realize upon these notes nor divest himself of liability for their payment.
In Shubin v. Comm’r of Int. Rev., 67 F. (2d) 199, the Circuit Court of Appeals for the Third Circuit held that the fact that the seller, who received the proceeds of a second mortgage put upon the property by the purchaser, remains secondarily liable on the mortgage indebtedness is not sufficient to prevent the proceeds received from being considered as a payment at the time of the.transaction. We agree with the conclusion reached in that ease and therefore hold that even though petitioner remained liable as guarantor on the notes transferred, the gain included in the installment notes (transferred) for the real estate at their face value should have been included in petitioner’s income tax return for the year 1927.
Petitioner also claims error in the amount fixed by the Commissioner and affirmed by the Board of Tax Appeals as the cost to him of the stock in the Molalla Electric Company. The amount fixed by the Commissioner and affirmed by the Board of Tax Appeals was the original purchase price of $45,000. Petitioner was president and general manager of the Molalla Company from 1917 to '1927 at a salary of $250 per month until 1921 when it was increased to $300 per month. During this period petitioner was entitled to $33,600 in salary and claims to have drawn only $24,297.20, leaving a balance of $9,302.80 which he claims was left with the company and invested in its business and therefore should be added to the cost of the Molalla Company stock to him. During the year 1923 petitioner sold certain real estate for $1,400, which amount he claims was turned over to and used by the Molalla Company as were the proceeds of certain life insurance owned by petitioner in the amount of $1,598.22. Petitioner contends that since these last two amounts were turned over to and used by the Molalla' Company and not returned to him in the form of dividends or otherwise, these amounts should also be added as part of the cost to him of the Molalla Company stock. The record does not contain any of the evidence on these matters and we cannot in view of that fact disturb the decision of the Board of Tax Appeals that the record before it did not justify the claims so made by the petitioner and that the cost of the stock was $45,000.
The order of the Board of Tax Appeals is reversed and the case remanded for further proceedings not inconsistent herewith.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_appel1_1_4
|
F
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. 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.
JORDAN MARSH CO. v. WOLFF et al.
No. 3051.
Circuit Court of Appeals, First Circuit.
Nov. 27, 1935.
George N. Goddard, of Boston, Mass., for appellant.
Herbert A. Baker, of Boston, Mass. (Alan B. Bagley, of Boston, Mass., on the brief), for appellees.
Before MORTON, Circuit Judge, and MORRIS and McLELLAN, District Judges.
Rehearing denied Feb. 14, 1936.
MORTON, Circuit Judge.
This is a suit for infringement of patent to Wolff No. 1,787,098, dated December 30, 1930, for union suits. The defenses are invalidity and noninfringement. Upon final hearing the District Judge decreed in favor of the plaintiffs that the patent was valid and infringed, with the usual provisions for an injunction and accounting. The defendants have appealed.
The patent relates to a kind of underclothing in which the body and leg portions are combined into a single garment, called a “union suit.” Such garments had been in common use for many years before the Wolff application was filed. They must be so fashioned that, for toilet purposes, the .seat portion can be let down or pushed aside. The Wolff patent deals with this part of the garment. In his construction the top of the seat portion is loose at the back of the waist and permanently fastened at the sides, and is given such fullness that it can be pulled down when the wearer goes to the toilet. It is retained in normal position by an elastic tape carried in a hem at the upper edge of it and fastened at the sides of the waist. The stretching of the elastic in connection with the fullness allows the seat portion to be pulled down and the pressure of the elastic returns it into position when the pull is removed. There are no buttons.
The evidence indicates that the Wolff suits at first were,not well received commercially, but they have recently achieved marked commercial success. The difficulty with them when they first came out was that the elastic tape then in use did not stand up well under washing. It was a serious objection. Two or three years after the patent was issued a new kind of elastic was developed which lasts much better. It overcame the objection mentioned, and sales of Wolff garments rapidly expanded. The plaintiff’s evidence indicates that they may dominate the market for children’s wear.
The first question is whether the patent shows invention over the prior art. There was little controversy as to the facts. The oral testimony about the prior art was for the most part uncontradicted, and the prior patents speak for themselves. In very early forms of these union suits, which go back more than a generation, there was a seat flap, held up by buttons at the sides and back of the waist. The buttons were difficult for small children —many persons will remember little folks backing up to them with a request to be “buttoned up” — and it is said gave trouble when the garments were washed. As early as 1914, Greenewald, in a patent on this sort of garment, said: “The center button and button hole may be omitted, if desired, and means provided for drawing the free edge of the flap tight about the waist so it will not gap, the bottom edge 181 of the back section extending a substantial distance below the edge 391 (of the seat portion).” Page 2, lines 54-60, Greenewald patent, May 19, 1914. This apparently refers to the use of an elastic, as something well known for such purposes. In 1916, Kline patented a union suit of which he said: “The object in view is the production of a seat construction which will remain snugly and smoothly closed, without the use of buttons or other fasteners,” etc. The Kline garment was made of knitted material, the elasticity of which allowed the seat to be pulled out of the way for toilet purposes and returned it to position when the wearer stood up. The top edge of the seat portion was permanently fastened at the sides and was loose across the back, like Wolff’s. The lower part, or “tail,” of the body portion extended down inside the seat portion and was fastened at its sides, so that it did not bunch up when the seat portion pulled back to normal position. In 1916 Kassap patented a union suit in which the top of the seat portion was fastened at the sides and loose across the back and so baggy that it could be pulled down for toilet purposes. There was an elastic tape in the top of it which took up the fullness and assisted in holding the seat in normal position. This tape did not, however, extend all the way from side to side of the top, but only across the middle portion thereof, and a button was used on each side of the back, between the ends of the elastic tape and its side fastenings, to assist in holding up the baggy seat. Kassap’s garment was made of unstretchable woven material like that shown in Wolff’s patent. The baggy seat portion, above described, made so full that it could be pulled out of the way and retained in normal position in part by an elastic tape, appears to have been new. In the Kline patent, resiliency of the material was relied on unaided by any elastic or buttons, and there was no looseness or bagginess.
Wolff took the loose baggy seat of Kassap’s patent and modified the support for it by running the elastic tape all the way across the top and doing away with the auxiliary buttons. The question is whether this constituted invention. At the argument there was some discussion whether the Kassap patent showed the tail of the body portion fastened at the sides, and as to the length of it under the seat. Kline had explicitly referred to this point in his patent saying that the tail was fastened laterally. Whether a shirttail should be longer or shorter does not involve patentable invention. Aside from the great commercial success of the Wolff garment, it would seem too clear for discussion that the change which he made did not involve invention. As the Patent Examiner said, “There would be no invention in merely increasing the length of the elastic band e of Kassap and securing the ends of same in seams s.” The weight to be given commercial success on questions of invention depends on the circumstances surrounding it. It is said here that Wolff took the final step which converted previous failures into success, and produced something which was a great improvement in a common garment over anything previously known; and the District Judge so found. According to Wolff’s testimony, however, he went to about half a dozen leading manufacturers of such garments shortly after receiving his patent; one or two of them tried the garment out; none of them cared to undertake the manufacture of it. One of them, a large concern, said bluntly that they would have nothing to do with any undergarment using elastic tape; that they had tried it out and it did not stand tip. The first license under the patent was not given until 1933, about the time the improved elastic tapes came into use.
The merit of the invention is to be judged as of the time when it was made. The evidence does not indicate that at that time it was an important, nor perhaps a practical, step forward. The recent commercial success of the Wolff garments appears to be due to the improvement in elastic tapes. The change which he made seems to us to have been obvious; not taken by others because owing to the poor quality of elastic then obtainable there was no practical merit in it. It is hard to believe, though there is no direct evidence on the point, that Kassap did not try an elastic tape extending all the way across the top of the seat portion of his garment before he adopted the combination of elastic in the middle and buttons at the sides which he patented. When it appears that a patent if established is likely to create a monopoly in a thing in common use, and when the question is whether the forward step taken by the patentee involved invention, it is but just to the public that the patentee establish the presence of invention with a degree of certainty bearing some reasonable relation to the extent and burden of the monopoly which he claims. We are therefore constrained to disregard the contrary finding of the District Judge and to hold the patent void for lack of invention.
It is unnecessary to decide whether the claim, in view of the proceedings in the Patent Office, would be entitled to a construction broad enough to cover a garment like the defendant’s made of knitted tubing and not having separate front and back sections. See Smith v. Magic City Club, 282 U.S. 784, 51 S.Ct. 291, 75 L.Ed. 707.
The decree appealed from must be reversed, and the cause remanded to the District Court, with instructions to dismiss the bill. Costs to defendant in both courts.
The decree of the District Court is reversed, and the case is remanded to that court, with instructions to dismiss the bill; the defendant recovers costs in both courts.
Question: This question concerns the first listed appellant. 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:
|
sc_caseoriginstate
|
27
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the court in which the case originated. Consider the District of Columbia as a state.
DAVIS v. MICHIGAN DEPARTMENT OF THE TREASURY
No. 87-1020.
Argued January 9, 1989
Decided March 28, 1989
Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, White, Marshall, Blackmun, O’Connor, and Scalia, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 818.
Paul S. Davis, pro se, argued the cause and filed briefs for appellant.
Michael K. Kellogg argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Rose, Deputy Solicitor General Merrill, David English Car-mack, and Steven W. Parks.
Thomas L. Casey, Assistant Solicitor General of Michigan, argued the cause for appellee. With him on the brief were Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Richard R. Roesch and Ross H. Bishop, Assistant Attorneys General.
Joseph B. Scott and Michael J. Kotor filed a brief for the National Association of Retired Federal Employees as amicus curiae urging reversal.
Justice Kennedy
delivered the opinion of the Court.
The State of Michigan exempts from taxation all retirement benefits paid by the State or its political subdivisions, but levies an income tax on retirement benefits paid by all other employers, including the Federal Government. The question presented by this case is whether Michigan’s tax scheme violates federal law.
I
Appellant Paul S. Davis, a Michigan resident, is a former employee of the United States Government. He receives retirement benefits pursuant to the Civil Service Retirement Act, 5 U. S. C. §8831 et seq. In each of the years 1979 through 1984, appellant paid Michigan state income tax on his federal retirement benefits in accordance with Mich. Comp. Laws Ann. §206.30(l)(f) (Supp. 1988). That statute defines taxable income in a manner that excludes all retirement benefits received from the State or its political subdivisions, but includes most other forms of retirement benefits. The effect of this definition is that the retirement benefits of retired state employees are exempt from state taxation while the benefits received by retired federal employees are not.
In 1984, appellant petitioned for refunds of state taxes paid on his federal retirement benefits between 1979 and 1983. After his request was denied, appellant filed suit in the Michigan Court of Claims. Appellant’s complaint, which was amended to include the 1984 tax year, averred that his federal retirement benefits were “not legally taxable under the Michigan Income Tax Law” and that the State’s inconsistent treatment of state and federal retirement benefits discriminated against federal retirees in violation of 4 U. S. C. § 111, which preserves federal employees’ immunity from discriminatory state taxation. See Public Salary Tax Act of 1939, ch. 59, §4, 53 Stat. 575, codified, as amended, at 4 U. S. C. § 111. The Court of Claims, however, denied relief. No. 84-9451 (Oct. 30, 1985), App. to Juris. Statement A10.
The Michigan Court of Appeals affirmed. 160 Mich. App. 98, 408 N. W. 2d 433 (1987). The court first rejected appellant’s claim that 4 U. S. C. § 111 invalidated the State’s tax on appellant’s federal benefits. Noting that §111 applies only to federal “employees,” the court determined that appellant’s status under federal law was that of an “annuitant” rather than an employee. As a consequence, the court concluded that § 111 “has no application to [Davis], since [he] cannot be considered an employee within the meaning of that act.” Id., at 104, 408 N. W. 2d, at 435.
The Michigan Court of Appeals next rejected appellant’s contention that the doctrine of intergovernmental tax immunity rendered the State’s tax treatment of federal retirement benefits unconstitutional. Conceding that “a tax may be held invalid ... if it operates to discriminate against the federal government and those with whom it deals,” id., at 104, 408 N. W. 2d, at 436, the court examined the State’s justifications for the discrimination under a rational-basis test. Ibid. The court determined that the State’s interest in “attracting and retaining . . . qualified employees” was a “legitimate state objective which is rationally achieved by a retirement plan offering economic inducements,” and it upheld the statute. Id., at 105, 408 N. W. 2d, at 436.
The Supreme Court of Michigan denied appellant’s application for leave to appeal. 429 Mich. 854 (1987). We noted probable jurisdiction. 487 U. S. 1217 (1988).
II
Appellant places principal reliance on 4 U. S. C. § 111. In relevant part, that section provides:
“The United States consents to the taxation' of pay or compensation for personal service as an officer or employee of the United States ... by a duly constituted taxing authority having jurisdiction, if the taxation does not discriminate against the officer or employee because of the source of the pay or compensation.”
As a threshold matter, the State argues that § 111 applies only to current employees of the Federal Government, not to retirees such as appellant. In our view, however, the plain language of the statute dictates the opposite conclusion. Section 111 by its terms applies to “the taxation of pay or compensation for personal services as an officer or employee of the United States.” (Emphasis added). While retirement pay is not actually disbursed during the time an individual is working for the Government, the amount of benefits to be received in retirement is based and computed upon the individual’s salary and years of service. 5 U. S. C. § 8339(a). We have no difficulty concluding that civil service retirement benefits are deferred compensation for past years of service rendered to the Government. See, e. g., Zucker v. United States, 758 F. 2d 637, 639 (CA Fed.), cert. denied, 474 U. S. 842 (1985); Kizas v. Webster, 227 U. S. App. D. C. 327, 339, 707 F. 2d 524, 536, (1983), cert. denied, 464 U. S. 1042 (1984); Clark v. United States, 691 F. 2d 837, 842 (CA7 1982). And because these benefits accrue to employees on account of their service to the Government, they fall squarely within the category of compensation for services rendered “as an officer or employee of the United States.” Appellant’s federal retirement benefits are deferred compensation earned “as” a federal employee, and so are subject to § 111.
The State points out, however, that the reference to “compensation for personal services as an officer or employee” occurs in the first part of § 111, which defines the extent of Congress’ consent to state taxation, and not in the latter part of the section, which provides that the consent does not extend to taxes that discriminate against federal employees. Instead, the nondiscrimination clause speaks only in terms of “discriminat[ion] against the officer or employee because of the source of the pay or compensation.” From this the State concludes that, whatever the scope of Congress’ consent to taxation in the first portion of § 111, the nondiscrimination clause applies only to current federal employees.
Although the State’s hypertechnical reading of the nondiscrimination clause is not inconsistent with the language of that provision examined in isolation, statutory language cannot be construed in a vacuum. It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme. See United States v. Morton, 467 U. S. 822, 828 (1984). When the first part of §111 is read together with the nondiscrimination clause, the operative words of the statute are as follows: “The United States consents to the taxation of pay or compensation ... if the taxation does not discriminate . . . because of the source of the pay or compensation.” The reference to “the pay or compensation” in the last clause of § 111 must, in context, mean the same “pay or compensation” defined in the first part of the section. Since that “pay or compensation” includes retirement benefits, the nondiscrimination clause must include them as well.
Any other interpretation of the nondiscrimination clause would be implausible at best. It is difficult to imagine that Congress consented to discriminatory taxation of the pensions of retired federal civil servants while refusing to permit such taxation of current employees, and nothing in the statutory language or even in the legislative history suggests this result. While Congress could perhaps have used more precise language, the overall meaning of § 111 is unmistakable: it waives whatever immunity past and present federal employees would otherwise enjoy from state taxation of salaries, retirement benefits, and other forms of compensation paid on account of their employment with the Federal Government, except to the extent that such taxation discriminates on account of the source of the compensation.
1 — 1 HH hH
Section 111 was enacted as part of the Public Salary Tax Act of 1939, the primary purpose of which was to impose federal income tax on the salaries of all state and local government employees. Prior to adoption of the Act, salaries of most government employees, both state and federal, generally were thought to be exempt from taxation by another sovereign under the doctrine of intergovernmental tax immunity. This doctrine had its genesis in McCulloch v. Maryland, 4 Wheat. 316 (1819), which held that the State of Maryland could not impose a discriminatory tax on the Bank of the United States. Chief Justice Marshall’s opinion for the Court reasoned that the Bank was an instrumentality of the Federal Government used to carry into effect the Government’s delegated powers, and taxation by the State would unconstitutionally interfere with the exercise of those powers. Id., at 425-437.
For a time, McCulloch was read broadly to bar most taxation by one sovereign of the employees of another. See Collector v. Day, 11 Wall. 113, 124-128 (1871) (invalidating federal income tax on salary of state judge); Dobbins v. Com missioners of Erie County, 16 Pet. 435 (1842) (invalidating state tax on federal officer). This rule “was based on the rationale that any tax on income a party received under a contract with the government was a tax on the contract and thus a tax ‘on’ the government because it burdened the government’s power to enter into the contract.” South Carolina v. Baker, 485 U. S. 505, 518 (1988).
In subsequent cases, however, the Court began to turn away from its more expansive applications of the immunity doctrine. Thus, in Helvering v. Gerhardt, 304 U. S. 405 (1938), the Court held that the Federal Government could levy nondiscriminatory taxes on the incomes of most state employees. The following year, Graves v. New York ex rel. O’Keefe, 306 U. S. 466, 486-487 (1939), overruled the Day-Dobbins line of cases that had exempted government employees from nondiscriminatory taxation. After Graves, therefore, intergovernmental tax immunity barred only those taxes that were imposed directly on one sovereign by the other or that discriminated against a sovereign or those with whom it dealt.
It was in the midst of this judicial revision of the immunity doctrine that Congress decided to extend the federal income tax to state and local government employees. The Public Salary Tax Act was enacted after Helvering v. Gerhardt, supra, had upheld the imposition of federal income taxes on state civil servants, and Congress relied on that decision as support for its broad assertion of federal taxing authority. S. Rep. No. 112, 76th Cong., 1st Sess., 5-9 (1939); H. R. Rep. No. 26, 76th Cong., 1st Sess., 2-3 (1939). However, the Act was drafted, considered in Committee, and passed by the House of Representatives before the announcement of the decision in Graves v. New York ex rel. O’Keefe, supra, which for the first time permitted state taxation of federal employees. As a result, during most of the legislative process leading to adoption of the Act it was unclear whether state taxation of federal employees was still barred by intergovernmental tax immunity despite the abrogation of state employees’ immunity from federal taxation. See H. R. Rep. No. 26, swpra, at 2 (“There are certain indications in the case of McCulloch v. Maryland, 4 Wheat. 316 (1819), . . . that . . . Federal officers and employees may not, without the consent of the United States, be subjected to income taxation under the authority of the various States”).
Dissatisfied with this uncertain state of affairs, and concerned that considerations of fairness demanded equal tax treatment for state and federal employees, Congress decided to ensure that federal employees would not remain immune from state taxation at the same time that state government employees were being required to pay federal income taxes. See S. Rep. No. 112, supra, at 4; H. R. Rep. No. 26, supra, at 2. Accordingly, §4 of the proposed Act (now §111) expressly waived whatever immunity would have otherwise shielded federal employees from nondiscriminatory state taxes.
By the time the statute was enacted, of course, the decision in Graves had been announced, so the constitutional immunity doctrine no longer proscribed nondiscriminatory state taxation of federal employees. In effect, § 111 simply codified the result in Graves and foreclosed the possibility that subsequent judicial reconsideration of that case might reestablish the broader interpretation of the immunity doctrine.
Section 111 did not waive all aspects of intergovernmental tax immunity, however. The final clause of the section contains an exception for state taxes that discriminate against federal employees on the basis of the source of their compensation. This nondiscrimination clause closely parallels the nondiscrimination component of the constitutional immunity doctrine which has, from the time of McCulloch v. Maryland, barred taxes that “operat[e] so as to discriminate against the Government or those with whom it deals.” United States v. City of Detroit, 355 U. S. 466, 473 (1958). See also McCulloch v. Maryland, supra, at 436-437; Miller v. Milwaukee, 272 U. S. 713, 714-715 (1927); Helvering v. Gerhardt, supra, at 413; Phillips Chemical Co. v. Dumas Independent School Dist., 361 U. S. 376, 385 (1960); Memphis Bank & Trust Co. v. Gamer, 459 U. S. 392, 397, and n. 7 (1983).
In view of the similarity of language and purpose between the constitutional principle of nondiscrimination and the statutory nondiscrimination clause, and given that § 111 was consciously drafted against the background of the Court’s tax immunity cases, it is reasonable to conclude that Congress drew upon the constitutional doctrine in defining the scope of the immunity retained in § 111. When Congress codifies a judicially defined concept, it is presumed, absent an express statement to the contrary, that Congress intended to adopt the interpretation placed on that concept by the courts. See Midlantic National Bank v. New Jersey Dept. of Environmental Protection, 474 U. S. 494, 501 (1986); Morissette v. United States, 342 U. S. 246, 263 (1952). Hence, we conclude that the retention of immunity in § 111 is coextensive with the prohibition against discriminatory taxes embodied in the modern constitutional doctrine of intergovernmental tax immunity. Cf. Memphis Bank & Trust, supra, at 396-397 (construing 31 U. S. C. §742, which permits only ‘“nondiscriminatory’” state taxation of interest on federal obligations, as “principally a restatement of the constitutional rule”).
On its face, § 111 purports to be nothing more than a partial congressional consent to nondiscriminatory state taxation of federal employees. It can be argued, however, that by negative implication §111 also constitutes an affirmative statutory grant of immunity from discriminatory state taxation in addition to, and coextensive with, the pre-existing protection afforded by the constitutional doctrine. Regardless of whether § 111 provides an independent basis for finding immunity or merely preserves the traditional constitutional prohibition against discriminatory taxes, however, the inquiry is the same. In either case, the scope of the immunity granted or retained by the nondiscrimination clause is to be determined by reference to the constitutional doctrine. Thus, the dispositive question in this case is whether the tax imposed on appellant is barred by the doctrine of intergovernmental tax immunity.
IV
It is undisputed that Michigan’s tax system discriminates in favor of retired state employees and against retired federal employees. The State argues, however, that appellant is not entitled to claim the protection of the immunity doctrine, and that in any event the State’s inconsistent treatment of Federal and State Government retirees is justified by meaningful differences between the two classes.
A
In support of its first contention, the State points out that the purpose of the immunity doctrine is to protect governments and not private entities or individuals. As a result, so long as the challenged tax does not interfere with the Federal Government’s ability to perform its governmental functions, the constitutional doctrine has not been violated.
It is true that intergovernmental tax immunity is based on the need to protect each sovereign’s governmental operations from undue interference by the other. Graves, 306 U. S., at 481; McCulloch v. Maryland, 4 Wheat., at 435-436. But it does not follow that private entities or individuals who are subjected to discriminatory taxation on account of their dealings with a sovereign cannot themselves receive the protection of the constitutional doctrine. Indeed, all precedent is to the contrary. In Phillips Chemical Co., supra, for example, we considered a private corporation’s claim that a state tax discriminated against private lessees of federal land. We concluded that the tax “discriminate[d] unconstitutionally against the United States and its lessee,” and accordingly held that the tax could not be exacted. Id., at 387 (emphasis added). See also Memphis Bank & Trust, supra; Moses Lake Homes, Inc. v. Grant County, 365 U. S. 744 (1961); Collector v. Day, 11 Wall. 113 (1871); Dobbins v. Commissioners of Erie County, 16 Pet. 435 (1842). The State offers no reasons for departing from this settled rule, and we decline to do so.
B
Under our precedents, “[t]he imposition of a heavier tax burden on [those who deal with one sovereign] than is imposed on [those who deal with the other] must be justified by significant differences between the two classes.” Phillips Chemical Co. v. Dumas Independent School Dist., 361 U. S., at 383. In determining whether this standard of justification has been met, it is inappropriate to rely solely on the mode of analysis developed in our equal protection cases. We have previously observed that “our decisions in [the equal protection] field are not necessarily controlling where problems of intergovernmental tax immunity are involved,” because “the Government’s interests must be weighed in the balance.” Id., at 385. Instead, the relevant inquiry is whether the inconsistent tax treatment is directly related to, and justified by, “significant differences between the two classes.” Id., at 383-385.
The State points to two allegedly significant differences between federal and state retirees. First, the State suggests that its interest in hiring and retaining qualified civil servants through the inducement of a tax exemption for retirement benefits is sufficient to justify the preferential treatment of its retired employees. This argument is wholly beside the point, however, for it does nothing to demonstrate that there are “significant differences between the two classes” themselves; rather, it merely demonstrates that the State has a rational reason for discriminating between two similar groups of retirees. The State’s interest in adopting the discriminatory tax, no matter how substantial, is simply irrelevant to an inquiry into the nature of the two classes receiving inconsistent treatment. See id., at 384.
Second, the State argues that its retirement benefits are significantly less munificent than those offered by the Federal Government, in terms of vesting requirements, rate of accrual, and computation of benefit amounts. The substantial differences in the value of the retirement benefits paid the two classes should, in the State’s view, justify the inconsistent tax treatment.
Even assuming the State’s estimate of the relative value of state and federal retirement benefits is generally correct, we do not believe this difference suffices to justify the type of blanket exemption at issue in this case. While the average retired federal civil servant receives a larger pension than his state counterpart, there are undoubtedly many individual instances in which the opposite holds true. A tax exemption truly intended to account for differences in retirement benefits would not discriminate on the basis of the source of those benefits, as Michigan’s statute does; rather, it would discriminate on the basis of the amount of benefits received by individual retirees. Cf. Phillips Chemical Co., supra, at 384-385 (rejecting proffered rationale for State’s unfavorable tax treatment of lessees of federal property, because an evenhanded application of the rationale would have resulted in inclusion of some lessees of state property in the disfavored class as well).
V
For these reasons, we conclude that the Michigan Income Tax Act violates principles of intergovernmental tax immunity by favoring retired state and local government employees over retired federal employees. The State having conceded that a refund is appropriate in these circumstances, see Brief for Appellee 63, to the extent appellant has paid taxes pursuant to this invalid tax scheme, he is entitled to a refund. See Iowa-Des Moines National Bank v. Bennett, 284 U. S. 239, 247 (1931).
Appellant also seeks prospective relief from discriminatory taxation. With respect to this claim, however, we are not in the best position to ascertain the appropriate remedy. While invalidation of Michigan’s income tax law in its entirety obviously would eliminate the constitutional violation, the Constitution does not require such a drastic solution. We have recognized, in cases involving invalid classifications in the distribution of government benefits, that the appropriate remedy “is a mandate of equal treatment, a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class.” Heckler v. Mathews, 465 U. S. 728, 740 (1984). See Iowa-Des Moines National Bank, supra, at 247; see also Welsh v. United States, 398 U. S. 333, 361 (1970) (Harlan, J., concurring in judgment).
In this case, appellant’s claim could be resolved either by extending the tax exemption to retired federal employees (or to all retired employees), or by eliminating the exemption for retired state and local government employees. The latter approach, of course, could be construed as the direct imposition of a state tax, a remedy beyond the power of a federal court. See Moses Lake Homes, Inc. v. Grant County, 365 U. S., at 752 (“Federal courts may not assess or levy taxes”). The permissibility of either approach, moreover, depends in part on the severability of a portion of §206.30(l)(f) from the remainder of the Michigan Income Tax Act, a question of state law within the special expertise of the Michigan courts. See Louis K. Liggett Co. v. Lee, 288 U. S. 517, 540-541 (1933). It follows that the Michigan courts are in the best position to determine how to comply with the mandate of equal treatment. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
As a result of a series of amendments, this subsection has been variously designated as (l)(f), (l)(g), and (l)(h) at times relevant to this litigation. This opinion will refer only to the current statutory designation, §206.30(l)(f).
In pertinent part, the statute provides:
“(1) ‘Taxable income’. . . means adjusted gross income as defined in the internal revenue code subject to the following adjustments:
“(f) Deduct to the extent included in adjusted gross income:
“(i) Retirement or pension benefits received from a public retirement system of or created by an act of this state or a political subdivision of this state.
“(iv) Retirement or pension benefits from any other retirement or pension system as follows:
“(A) For a single return, the sum of not more than $7,500.00.
“(B) For a joint return, the sum of not more than $10,000.00.” Mich. Comp. Laws Ann. § 206.30(l)(f) (Supp. 1988).
Subsection (f)(iv) of this provision exempts a portion of otherwise taxable retirement benefits from taxable income, but appellant’s retirement pay from all nonstate sources exceeded the applicable exemption amount in each of the tax years relevant to this case.
The State suggests that the legislative history does not support this interpretation of § 111, pointing to statements in the Committee Reports that describe the scope of § 111 without using the phrase “service as an officer or employee.” The language of the statute leaves no room for doubt on this point, however, so the State’s attempt to establish a minor inconsistency with the legislative history need not detain us. Legislative history is irrelevant to the interpretation of an unambiguous statute. United Air Lines, Inc. v. McMann, 434 U. S. 192, 199 (1977).
The dissent argues that this tax is nondiscriminatory, and thus constitutional, because it “draws no distinction between the federal employees or retirees and the vast majority of voters in the State.” Post, at 823. In Phillips Chemical Co., however, we faced that precise situation: an equal tax burden was imposed on lessees of private, tax-exempt property and lessees of federal property, while lessees of state property paid a lesser tax, or in some circumstances none at all. Although we concluded that “[ujnder these circumstances, there appears to be no discrimination between the Government’s lessees and lessees of private property,” 361 U. S., at 381, we nonetheless invalidated the State’s tax. This result is consistent with the underlying rationale for the doctrine of intergovernmental tax immunity. The danger that a State is engaging in impermissible discrimination against the Federal Government is greatest when the State acts to benefit itself and those in privity with it. As we observed in Phillips Chemical Co., “it does not seem too much to require that the State treat those who deal with the Government as well as it treats those with whom it deals itself.” Id.., at 385.
We also take issue with the dissent’s assertion that “it is peculiarly inappropriate to focus solely on the treatment of state governmental employees” because “[t]he State may always compensate in pay or salary for what it assesses in taxes.” Post, at 824. In order to provide the same after-tax benefits to all retired state employees by means of increased salaries or benefit payments instead of a tax exemption, the State would have to increase its outlays by more than the cost of the current tax exemption, since the increased payments to retirees would result in higher federal income tax payments in some circumstances. This fact serves to illustrate the impact on the Federal Government of the State’s discriminatory tax exemption for state retirees. Taxes enacted to reduce the State’s employment costs at the expense of the federal treasury are the type of discriminatory legislation that the doctrine of intergovernmental tax immunity is intended to bar.
Question: What is the state of the court in which the case originated?
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_initiate
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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 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.
Glennis Rae WILLIAMS, individually and as Personal Representative of the Estate of Bruce Williams, and as Guardian Ad Litem for Robert Bruce Williams, Richard Ray Williams, Nancy Jo Williams, Vickie Marie Williams, and Mary Ann Williams, minor children, Plaintiffs-Appellants, v. WEST JORDAN CITY, a municipal corporation, Robert Stockwell, Glendon H. Leak, Junias H. Burton, Clifton Treglown, Max A. Finlayson, John L. Price, David Schmidt and Judd Parr, jointly and severally in their public and private capacities, Defendants-Appellees.
No. 81-1330.
United States Court of Appeals, Tenth Circuit.
Aug. 10, 1983.
Loni F. DeLand, Salt Lake City, Utah, for plaintiffs-appellants.
Robert L. Stevens, P. Keith Nelson, with him on brief, Salt Lake City, Utah, for defendants-appellees.
Before HOLLOWAY and DOYLE, Circuit Judges, and BROWN , Senior District Judge.
Honorable Wesley E. Brown, Senior District Judge for the District of Kansas, is sitting by designation.
WESLEY E. BROWN, Senior District Judge.
This appeal is taken from the order of the district court granting defendants’ motion for summary judgment. The action was brought under 42 U.S.C. § 1983 by Bruce Williams for termination from his position as a police sergeant with defendant West Jordan City, Utah. The undisputed facts show that on August 1, 1978, Williams was summoned to a meeting with Police Chief Robert Stockwell, who confronted Williams with several allegations of misconduct on duty. Stockwell then suspended Williams from duty. The next day Stockwell met with supervisory officers of the police department to discuss Williams’ performance, after which he informed Williams of the meeting and told Williams he would be given an opportunity to resign. Williams requested time to consider his options, and was given until Friday, August 4,1978. On August 4, 1978, Williams refused to resign, and Stockwell fired him. The following Monday, August 7, 1978, a written statement of the charges of misconduct was delivered to Williams. Williams subsequently demanded a hearing to appeal his termination, and a hearing was had before the City Council on August 23, 1978. Williams’ termination was upheld by the Council.
Following the unsuccessful appeal of his termination before the City Council, Williams filed the original complaint in this action. On July 11, 1979, Bruce Williams died as a result of an explosion at his home. An amended complaint was filed naming Williams’ wife, Glennis Rae Williams, and their minor children as plaintiffs.
Before the due process protections of the Fourteenth Amendment apply in a public employment context, the complainant must show that he possesses a property or liberty interest in such employment. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The district court found that plaintiffs could show neither type of interest in Williams’ employment with the police department, and that defendants were therefore entitled to judgment as a matter of law. In this appeal, the first issue we must decide is whether the district court erred in concluding that no property interest could be demonstrated. Plaintiffs rely upon three sources for the contention that Williams’ had “a legitimate claim of entitlement” to his job rather than a mere “unilateral expectation” of continuing in the position. Roth, supra, 408 U.S. at 577, 92 S.Ct. at 2709, 33 L.Ed.2d at 561. These sources are the Utah Public Safety Retirement Act, § 49-11-1, et seq., Utah Code Annotated 1953; the West Jordan City Personnel Manual and the Police Department Manual; and an implied contract.
Property interests “... are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.... ” Roth, ibid. Thus, whether Bruce Williams had a property interest in his employment depends upon whether one was created by or under Utah law. Bishop v. Wood, 426 U.S. 341, at 344, 96 S.Ct. 2074, at 2077, 48 L.Ed.2d 684, at 690 (1976). Plaintiffs do not contend that Williams was employed pursuant to an express contract, nor do they assert a property right arose directly from a state statute or city ordinance. Instead, they assert that the Utah Public Safety Retirement Act indirectly assured them of continuing employment by providing for retirement benefits to Williams and death benefits to his wife and children, the present plaintiffs, if they survived him. Plaintiffs point to no specific provision showing in what way the existence of a retirement system for employees effects a legitimate claim of entitlement to continued employment. Consequently, we agree with the district court that the retirement act created no property right in present employment, but only certain benefits if employment should continue until death or retirement.
Second, plaintiffs rely on a city-wide personnel manual and a police department manual, which they say contain rules establishing a property right in Williams. Clearly, rules and “mutually explicit understandings” can create property interests by means of an implied contract. Bishop, ibid., citing in footnote 6 Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972). Again, we are not aided by plaintiffs’ failure to refer to any particular provision of either manual. Our own review of the manuals reveals the two pertinent sections upon which plaintiffs must rely. The city personnel manual lists thirteen grounds for immediate dismissal, at least two of which were charged against Williams, and in a section entitled “Dismissal,” provides as follows:
The Department Head may, with the concurrence of the City Manager, dismiss for cause any permanent employee in a department by delivering a written statement of reasons to the employee concerned, with a copy to the City Council. Upon receipt of such written statement of dismissal, the employee may appeal through formal grievance procedures.
The police manual provides for an appeal to the Merit Commission after disciplinary measures, and states in a paragraph headed “Removal or Reduction”:
A permanent employee may be discharged, suspended or reduced in rank only after the person to be discharged, suspended or reduced has been presented, in writing, with reasons for such action. Such reasons shall state the specific grounds and particular facts upon which the discharge, suspension or reduction is based, and the person affected shall be allowed a reasonable time, not to exceed five (5) days, from date of presentation to him in which to reply thereto in writing—
We have not found any decisions by Utah state courts which are helpful in determining whether an implied contract existed in this employment situation, nor have any been brought to our attention. Not surprisingly, these particular manuals have not been construed by the courts of the state. The Supreme Court of Utah has stated:
The general rule concerning personal employment contracts is, in the absence of some further express or implied stipulation as to the duration of the employment or of a good consideration in addition to the services contracted to be rendered, the contract is no more than an indefinite general hiring which is terminable at the will of either party... .
When an individual is hired for an indefinite time, he has no right of action against his employer for breach of the employment contract upon being discharged.
Bihlmaier v. Carson, 603 P.2d 790, at 792 (Utah 1979), footnotes omitted. It is our practice to accord extraordinary force on appeal to the “... views and findings of a federal district judge ... involving the interpretation and application of the law of the state of the federal trial judge’s residence ... where there are no decisions on point or none which provide clear precedent.” Joyce v. Davis, 539 F.2d 1262, at 1264 — 1265 (10th Cir.1976), citations omitted. See also Bishop, supra, 426 U.S. at 345-347, 96 S.Ct. at 2077-2078, 48 L.Ed.2d at 690-691.
The district court in the present case held that the personnel manual did not confer a property right under Utah law. As in Bishop, supra, the personnel manual rule could fairly be read as creating entitlement to continued employment; that is, it could be reasonably interpreted to mean that an employee cannot be discharged absent cause. “However, such a reading is not the only possible interpretation; the [rule] may also be construed as granting no right to continued employment but merely conditioning an employee’s removal on compliance with certain specified procedures.” Bishop, supra, 426 U.S. at 345, 96 S.Ct. at 2077, 48 L.Ed.2d at 690, footnote omitted. We have found nothing which would show this latter construction to be untenable under Utah law, and we therefore accept the district court’s conclusion.
The district court apparently did not consider whether the police manual created a property interest, finding that it had not been formally adopted. Whether this manual was formally adopted was not the relevant inquiry, however. Lack of formal adoption of rules or policies would not necessarily prevent a property interest from arising thereunder. Existing rules, understandings, and policies and practices can be sufficient. Roth, supra; Perry, supra. Thus, the relevant issue of fact was whether the police manual, and rules and policies therein, existed and were in actual use. This issue was in dispute, and if material, could not properly have been considered on a motion for summary judgment. Rule 56(e), F.R.Civ.P. Even so, we do not find it necessary to reverse on this point and remand. In this case, whether the police manual rule in question was an actual practice or policy is not material. We must assume for purposes of defendants’ motion that plaintiffs’ claim is true, i.e., that the police manual rule was an established policy and one of the mutually understood circumstances of employment with the police department. Still, this would not be sufficient to create a property interest in light of the district court’s determination that the personnel manual rule showed no property right. Other than the provision in the police manual for specificity of grounds on which the discharge is based, the two manuals are substantially alike. If there is a more strongly worded rule, it is the one in the personnel manual: A more persuasive argument for a property right could be made under the “dismiss for cause” language of that rule. The significant provisions of the rule in the police manual are all contained in the personnel manual rule as well. It follows that the district court’s conclusion, which we have accepted, that no property interest existed by virtue of the personnel manual rule necessarily foreclosed a finding of a property interest created by the police manual rule.
Plaintiffs’ third contention in support of a property interest is labeled “implied contract.” Their argument consists of one sentence, as follows:
A de facto tenure system exists fostered by the State Retirement Act, the West Jordan manuals, and the understandings and expectations reasonably relied upon by [Williams] in working more than six years, being promoted to sergeant and relying upon the representations made when he was hired.
We have already discussed the state retirement act and the manuals. Plaintiffs allege no specific “understandings” or “representations” other than these. Without such factual support, the bare assertion that other unspecified circumstances existed which created an implied contract will not withstand a motion for summary judgment. Rule 56(e), F.R.CÍV.P. As to Williams’ expectations from six years in the job and promotion, these cannot, standing alone, create a property interest under the Fourteenth Amendment. Roth, supra.
Having determined that summary judgment was appropriately granted on the property interest theory of plaintiffs’ action, we must now consider the liberty interest claim. The district court held that there was no liberty interest in connection with Williams’ firing which triggered due process protections. We are not required to review whether or not such a liberty interest existed. Assuming without deciding that a liberty interest arose from the circumstances surrounding Williams’ dismissal, we nevertheless conclude that plaintiffs were not entitled to relief. Where the constitutional interest affected is liberty rather than property, the purpose of a due process hearing is solely to provide the person an opportunity to refute the charges and clear his name, not to recapture the previous employment. Roth, supra, 408 U.S. at 573, footnote 12 and accompanying text, 92 S.Ct. at 2707, footnote 12, 33 L.Ed.2d at 558-559; McGhee v. Draper, 639 F.2d 639, at 645 (10th Cir.1981). But if the employee does not challenge the substantial truth of the charges, no hearing is necessary. Codd v. Velger, 429 U.S. 624, 97 S.Ct. 882, 51 L.Ed.2d 92 (1977).
[I]f the hearing mandated by the Due Process Clause is to serve any useful purpose, there must be some factual dispute between an employer and a discharged employee which has some significant bearing on the employee’s reputation. Nowhere in his pleadings or elsewhere has respondent affirmatively asserted that the report of the apparent suicide attempt was substantially false.... [T]he absence of any such allegation ... is fatal to respondent’s claim under the Due Process Clause that he should have been given a hearing.
Codd, supra, 429 U.S. at 627, 97 S.Ct. at 884, 51 L.Ed.2d at 96.
Codd v. Velger is exactly on point with the case at bar. Here there is no dispute as to whether any of the incidents forming the bases for the charges against Williams occurred. Williams’ answers to interrogatories reveal that he never challenged the substantial truth of the charges, only their sufficiency to support his dismissal. Without a “Fourteenth Amendment property interest in continued employment, the adequacy or even the existence of reasons for failing to rehire him presents no federal constitutional question.” Codd, supra, 429 U.S. at 628, 97 S.Ct. at 884, 51 L.Ed.2d at 97, footnote omitted. Under Codd, plaintiffs could not show any facts entitling them to recover for deprivation of a liberty interest. Without denial of the substantial truth of the charges, they could not show harm even if no hearing had been accorded. Here, of course, Williams did have a post-termination hearing before the City Council. Because no hearing at all was required, we need not discuss other matters concerning the sufficiency of the hearing which was held. Summary judgment was proper on the liberty claim because there is, again, no genuine issue as to any material fact, and Codd, supra, establishes that defendants are entitled to judgment as a matter of law. Rule 56(c), F.R. Civ.P.
Because of our holdings on the two issues discussed, we find it unnecessary to examine the other issues raised in this appeal. The judgment of the district court 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_casetyp1_7-3-2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - torts".
Robert L. POINDEXTER and Earnestine Poindexter, Plaintiffs-Appellants, v. UNITED STATES of America and John O. Marsh, Jr., Secretary of the United States Department of the Army, Defendants-Appellees.
No. 85-4080
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Nov. 26, 1985.
Carroll Rhodes, Hazlehurst, Miss., for plaintiffs-appellants.
George Phillips, U.S. Atty., L.A. Smith,' III, Asst. U.S. Atty., Jackson, Miss., Michael Kimmel, Atty., U.S. Dept, of Justice, Civil Div., Constance Wynn, Robert S. Greenspan, Attys., Appellate Staff, Dept, of Justice, Washington, D.C., for defendants-appellees.
Before POLITZ, GARWOOD and JOLLY, Circuit Judges.
GARWOOD, Circuit Judge.
Appellants Robert and Earnestine Poindexter appeal the dismissal of their Military Claims Act suit by the district court for lack of subject matter jurisdiction. We affirm.
Facts and Proceedings Below
As alleged in the complaint, on March 19, 1980, Sharon Lynn Poindexter Walker, an Army enlisted woman, and her three-year-old son Daimon Jamol Poindexter, were found dead in their apartment at the United States Army Base in Frankfurt, West Germany; Jerome Walker, her husband, an Army enlisted man who lived in the apartment with Sharon and Daimon, was subsequently convicted of their murders in a military court martial. Thereafter, appellants, the parents of Sharon Walker and the grandparents of Daimon Poindexter, filed an administrative claim for damages with the United States Army Claims Service for the wrongful death of their daughter and grandson, respectively, under the Military Claims Act, 10 U.S.C. § 2733, the Foreign Claims Act, 10 U.S.C. § 2734 and 2734a, and the Federal Torts Claims Act, 28 U.S.C. §§ 2671-2680. The Army Claims Service denied appellants’ claims and they pursued an administrative appeal under the Military Claims Act and the Foreign Claims Act to the Secretary of the Army, who also rejected their claims. Appellants were then notified that this denial was final pursuant to 10 U.S.C. § 2735, which states: “Notwithstanding any other provision of law, the settlement of a claim under Section 2733, 2734, [or] 2734(a) ... of this title is final and conclusive.”
The appellants sought judicial review of the administrative disposition of their claims and for this purpose filed the instant complaint, against the United States and the Secretary of the Army in his official capacity only, in the United States District Court for the Southern District of Mississippi seeking declaratory relief, monetary damages, and attorneys’ fees.
Appellants alleged that the cause of death of Sharon and Daimon was “asphyxiation by strangulation and/or suffocation” and that
“[d]uring the weekend of March 15 and 16, 1980, Jerome Walker was very upset at his wife and made several threats to co-workers and supervisors working in his military unit. On or about March 17, 1980, Jerome Walker was upset, and his immediate supervisor gave him the remaining afternoon off. Jerome Walker failed to report for work on Tuesday, March 18, 1980 and was absent without leave (AWOL). No supervisor or U.S. Army official filed a formal complaint or charge charging Jerome Walker with being AWOL, nor did any of Jerome Walker’s supervisors or U.S. Army official make a personal visit to his and his wife’s (base housing) apartment to inquire as to Jerome’s condition or Sharon Lynn Poindexter’s condition.”
Appellants asserted jurisdiction under Article Three of the Constitution, the Federal Tort Claims Act, the Declaratory Judgment Act, the Military Claims Act, the Foreign Claims Act, and the due process clause of the Fifth Amendment. The complaint alleges that appellants were informed in writing by the Army Claims Service that “ ‘traditional principles of negligence law’ would apply in their case, and to recover under the Military Claims Act, plaintiffs would have to prove negligence on the part of the United States Army,” and that their claim under the Military Claims Act was denied on the basis that such negligence was not found. Appellants specifically asserted below that “the Military Claims Act does not require a claimant to prove that a member of the Army, Navy, Air Force, Marine Corps, or Coast Guard or civilian officer or employee of that department negligently caused personal injury or death of the claimant or the claimant’s decedent,” and that “regulations promulgated by the United States Department of the Air Force, Department of Navy and Coast Guard do not require that a claimant prove negligence in order to recover under the Foreign Claims Act or the Military Claims Act.” Consequently, the appellants asserted to the district court that the regulations promulgated by the Department of the Army under the Military Claims Act required negligence, and that that requirement was arbitrary and capricious, overbroad, and placed a greater degree of proof on the claimant than the statute required. The appellants also asserted that this requirement violated the due process clause of the Fifth Amendment.
The government moved to dismiss appellants’ complaint under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, which the district court granted. The court below held that since no cognizable constitutional claim was pleaded, the finality statute controlled and thus no jurisdiction existed. No question is raised on appeal with respect to the Foreign Claims Act or the Federal Tort Claims Act. The only issue the appellants raise on appeal is whether the Rule 12(b)(1) dismissal of their complaint, in so far as it predicated recovery on the Military Claims Act, was correct.
Discussion
Judicial Preclusion Under the Military Claims Act
Decisions on administrative claims brought under the Military Claims Act are not ordinarily reviewable. Under 10 U.S.C. § 2735, the “settlement” of a claim by the Secretary of the Army under the Military Claims Act is “final and conclusive.” “Settlement,” as used in the Military Claims Act, does not mean that there is or will be an actual disbursement of funds as that term generally connotes, but is instead defined by the Act as a process that will “consider, ascertain, adjust, determine, and dispose of a claim, whether by full or partial allowance or by disallowance.’’ 10 U.S.C. § 2731 (emphasis added). Thus whether a claimant receives money in the settlement of a claim — here the appellants did not — is irrelevant to whether judicial review is available. Taken at face value, the combined effect of sections 2731 and 2735 precludes all judicial review of the encompassed administrative rulings, and the courts have indeed held that the broad effect of these sections is to bar judicial review of these Military Claims Act agency determinations. See Broadnax v. U.S. Army, 710 F.2d 865, 867 (D.C.Cir.1983); Labash v. U.S. Department of the Army, 668 F.2d 1153, 1155-56 (10th Cir.), cert. denied, 456 U.S. 1008, 102 S.Ct. 2299, 73 L.Ed.2d 1303 (1982); Towry v. United States, 459 F.Supp. 101, 107 (E.D.La.1978), adopted and affirmed 620 F.2d 568 (5th Cir.1980), cert. denied, 449 U.S. 1078, 101 S.Ct. 858, 66 L.Ed.2d 801 (1981); but see Welch v. United States, 446 F.Supp. 75, 78 (D.Conn.1978) (suggesting broad judicial review for Military Claims Act adjudications).
Despite this broad affirmance of the principle of judicial preclusion- in Military Claims Act determinations, our colleagues in other circuits have intimated, in dicta, that review of these administrative adjudications might be available in some circumstances. See Labash, supra, at 1157; Broadnax, supra, at 867. In Labash, the Tenth Circuit suggested that federal courts may have jurisdiction to review the administrative settlement of a Military Claims Act claim if there is “a sufficiently pleaded allegation that a cognizable constitutional right has been violated.” 668 F.2d at 1157. Similarly, in Broadnax, the District of Columbia Circuit noted that “[section] 2735 may well permit some limited review, for example, ‘where there has been a substantial departure from important procedural rights, a misconstruction of the governing legislation, or some like error “going to the heart of the administrative determination.” ’ ” 710 F.2d at 867 (quoting Scroggins v. United States, 397 F.2d 295, 295, 184 Ct.Cl. 530, cert. denied, 393 U.S. 952, 89 S.Ct. 376, 21 L.Ed.2d 363 (1968) (citation omitted) (construing the finality clause governing review of Merit Systems Protection Board determinations)).
This Court has adopted an arguably somewhat more restrictive view. See Towry, supra, at 107-08. The district court’s opinion in Towry, which we adopted and affirmed, held that the due process clause of the Fifth Amendment does not authorize court review of a Military Claims Act settlement simply because the outcome “is alleged to be arbitrary, capricious, an abuse of discretion, and not based on substantial evidence.” 459 F.Supp. at 108. The Towry opinion makes it clear that mere allegations of unconstitutional arbitrariness by a claimant as a means of attacking an administrative ruling are not sufficient.
We find the legal concepts and facts involved in Towry and those at issue here to be analogous. In both cases, judicial review is sought on broad constitutional grounds. The appellants in Towry claimed in the district court that the administrative adjudication was arbitrary, capricious, an abuse of discretion, and not based on the evidence; here the claims below were conclusory assertions, inter alia, that the denial of appellants’ claims was a violation of substantive due process and that the requirement of negligence on the part of the Army for their type of claim was arbitrary, capricious, overbroad, and unconstitutional. The petitioners’ claims do not raise colorable constitutional concerns. Even if the possibly broader Broadnax and Labash constitutional exceptions to finality statute applied, as urged by appellants and assumed by the district court, and judicial review were available upon a sufficiently pleaded allegation of a cognizable constitutional right, the order dismissing this claim for lack of subject matter jurisdiction must still stand.
The appellants’ major constitutional argument is that the Army regulation requires proof of negligence to recover under the Military Claims Act, while the other military services do not, and that this divergence violates due process. To this assertion, however, the district court answered that “all branches of the armed services require proof of negligence to support a claim such as the one under consideration.” A review of the pertinent regulations proves the district court correct.
The Army regulations divide claims into two categories — those claims that involve military personnel acting within the scope of their employment and those incident to so-called “noncombat activities”. The former, whose applicability here is not disputed, require negligence before recovery is permitted, while the latter do not. “Noncombat activities” are defined as those activities “essentially military in nature, having little parallel in civilian pursuits ... such as practice firing of missiles and weapons, training and field exercises, and maneuvers ____” 32 C.F.R. § 536.-14(e). The Air Force and Navy make similar distinctions between claims arising from the negligence of military or civilian personnel acting in the scope of their employment and those claims arising out of activities of the same type as the Army regulations’ “noncombat activities”. See 32 C.F.R. § 842.49 (Air Force regulation); 32 C.F.R. § 750.55 (Navy regulation). The murders here were concedely not “essentially military activities,” and thus appellants pursued a negligence theory in the Army administrative determinations, claiming Jerome Walker was inadequately supervised. See 32 C.F.R. § 536.14(a)(1) (negligent or otherwise wrongful act or omission of military personnel or civilian employee of Army acting within scope of employment). Negligence not having been found, appellants now seek invalidation of the negligence requirement. We find, however, that the district court correctly ruled there was no cognizable constitutional claim and that the case was properly dismissed.
Appellants do not now contest the determination that all branches of the military service require proof of negligence to sustain an ordinary tort claim under the Military Claims Act. Instead, the appellants claim that the district court erred in looking beyond the complaint in deciding the question of subject matter jurisdiction. Appellants rely on the statement in Green v. Ferrell, 664 F.2d 1292, 1294 (5th Cir.1982): “Premerits factual inquiries which affect the existence of subject matter jurisdiction are restricted to such matters as the determination of citizenship of the parties or the amount in controversy in a diversity action.” (Emphasis added.) However, that language obviously is illustrative and not intended to be literally exclusive, especially when, as here, there is a separate finality statute.
This Court is more liberal in what it allows the district court to hear in subject matter jurisdiction disputes than appellants imply. In Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981), we stated that the district court “has the power to dismiss for lack of subject matter jurisdiction on any one of three separate bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or • (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” The Williamson court also stated that “where the jurisdictional issue can be extricated from the merits and tried as a separate issue the findings of the district court must be accepted unless they are clearly erroneous.” 645 F.2d at 416 n. 10 (citing McLain v. Real Estate Board of New Orleans, Inc., 583 F.2d 1315 (5th Cir.1978), vacated on other grounds 444 U.S. 232, 100 S.Ct. 502, 62 L.Ed.2d 441 (1980)). Here, the jurisdictional question can be sufficiently extricated from the merits of the complaint because the jurisdictional issue is whether Army regulations can constitutionally impose a negligence (or fault) requirement in Military Claims Act cases of this variety, and not the merits of this particular claim. And as the court further noted in Williamson, “[i]t is elementary that a district court has broader power to decide its own right to hear the case than it has when the merits of the case are reached.” 645 F.2d at 413. Moreover, in a case somewhat analogous to this one we ruled that materials such as outside affidavits can be considered if relevant to the district court’s jurisdiction. Green v. Forney Engineering Co., 589 F.2d 243, 246 (5th Cir.1979).
We also observe that the essence of what the district court considered was covered by the regulations of the Army, Air Force and Navy. These were matters of which the district court was required to take judicial notice, as is this Court. See 44 U.S.C. § 1507; United States v. Harrison, 651 F.2d 353, 355 (5th Cir.), cert. denied, 454 U.S. 1126, 102 S.Ct. 975, 71 L.Ed.2d 113 (1981); Glapion v. M/S JOURNALIST, 487 F.2d 1252, 1255 (5th Cir.1973). It is true that in the case of the Navy the material considered by the district court went somewhat beyond the express wording of the regulations (32 C.F.R. § 750.55), but in our view this material only serves to make explicit what is implicit in the regulations. Moreover, the material considered is essentially legal — as opposed to factual — in nature; it reflects the “law” of the three military services in respect to this aspect of the Military Claims Act. Finally, appellants do not challenge the accuracy of the district court’s conclusions in this respect.
Consequently, we decline to reverse the decision below on the basis of appellants’ contention that the district court wrongfully went outside the complaint in determining, for purposes of ruling on its subject matter jurisdiction, that the military services do not materially differ from one another in requiring negligence or other fault as the basis for Military Claims Act claims, such as the present one, that do not involve “noncombat activities.” This being the case, there was obviously no cognizable constitutional claim that equal treatment was denied as between the services.
As to any other significant constitutional concerns under Labash or Broadnax which might invoke jurisdiction, we find that there is likewise no merit. It is entirely rational for the Army to require negligence in ordinary tort claims and not in those resulting from “noncombat,” uniquely military activity. Indeed, state law ordinarily requires proof of negligence or intentional conduct in order to recover for wrongful death, see W. Prosser, The Law of Torts § 127 at 902-03 (4th ed. 1982), and thus this requirement of negligence complies with the societal norm and can hardly be said to be “arbitrary” or “capricious.” Moreover, Congress has specifically given the Secretary of the Army the authority to promulgate regulations governing Military Claims Act claims. Congress has also expressed its approval of this type of claim differentiation. For instance, when Congress enacted the National Guard Claims Act, 32 U.S.C. § 715, in 1960, it made the claims payable “in the same manner and to the same extent as claims cognizable under the [Military Claims Act].” 1960 U.S.Code Cong. & Ad.News 3492, 3494, 3497. As the legislative history of the National Guard Claims Act shows, Congress intended for “scope of employment” claims and “noncombat” claims to be reimbursed in the same manner as Military Claims ■ Act claims, with the former requiring negligence for recovery and the latter not. See id. at 3494-95.
Additipnally, we note that this case involves no suspect class, no First Amendment right, and no procedural due process complaint. Such constitutional issues may justify heightened scrutiny, a matter we need not address in the present context.
Finding no colorable constitutional issue and thus no subject matter jurisdiction, we affirm the district court’s dismissal under Fed.R.Civ.P. 12(b)(1).
AFFIRMED.
. In Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 986, 51 L.Ed.2d 192 (1977), cited by the court in Towry, the Supreme Court held open the possibility that colorable constitutional concerns were presumptively, although not conclusively, reviewable by the courts after an administrative determination. However, the Sanders court did not hold that an allegation of an "abuse of discretion" was "one of those rare instances where the Secretary’s denial is challenged on constitutional grounds.”
. Appellants' claim of a due process violation is apparently based on an analogy to equal protection cases because the thrust of appellants’ claim is that differing treatment is afforded synonymous classes, see Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954), although the claim is couched as "arbitrary,” “capricious,” and "overbroad.” Equal protection qua equal protection applies only to the states. U.S. Const. amend. XIV. However, the due process clause of the Fifth Amendment provides an equal protection guaranty generally as broad as that of the Fourteenth Amendment. See Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 670, 46 L.Ed.2d 659 (1976). Cf. Hampton v. Mow Sun Wong, 426 U.S. 88, 96 S.Ct. 1895, 1903-04, 48 L.Ed.2d 495 (1976) (suggesting possibility of some difference in certain applications); Rostker v. Goldberg, 453 U.S, 57, 101 S.Ct. 2646, 2650 n. 3, 2652 (endorsing, in considering claim of gender discrimination, "a healthy deference to ... executive judgments in the area of military affairs"), 2654, 69 L.Ed.2d 478 (1981).
. 32 C.F.R. § 536.14 provides in pertinent part:
"(a) General. Unless otherwise prescribed, a claim for personal injury, death, or damage to or loss of real or personal property is payable
... when—
“(1) Caused by the act or omission, negligent, wrongful, or otherwise involving fault of military personnel or a civilian employee of the Army acting within the scope of his employment, or
"(2) Incident to the noncombat activities of the Army.”
. The district judge’s opinion shows that he relied on affidavits that were attached to a supplemental memorandum which appellees gave to the judge to help him decide whether negligence was required in other branches of the armed forces. The district judge personally received and retained this information and it was therefore never made a part of the record. However, the appellants do not now assert that the district court erred in its consideration of this material because it was not filed with the district clerk, and thus waive any complaint on this issue. Their only argument on appeal is that this material considered for Rule 12(b)(1) purposes was beyond the complaint, and not that it was outside the record in the sense of having been filed directly with the judge rather than with the clerk. It is, of course, generally the preferred practice for such material to be filed in the clerk’s office.
. We do not imply that the Constitution would require uniformity among the services in this respect. Cf. 10 U.S.C. § 2733(a) (quoted note 7, infra) (authorizing the service secretaries severally to promulgate Military Claims Act regulations for their respective services).
. Appellants argued below that the Army regulations were, inter alia, "arbitrary, capricious, and overbroad, and violate the Fifth Amendment.”
. 10 U.S.C. § 2733(a) provides:
“Under such regulations as the Secretary concerned may prescribe, he, or, subject to appeal to him, the Judge Advocate General of an armed force under his jurisdiction, or the chief legal officer of the Coast Guard, as appropriate, if designated by him, may settle, and pay in an amount not more than $25,000, a claim against the United States----”
Question: What is the specific issue in the case within the general category of "economic activity and regulation - torts"?
A. motor vehicle
B. airplane
C. product liability
D. federal employer liability; injuries to dockworkers and longshoremen
E. other government tort liability
F. workers compensation
G. medical malpractice
H. other personal injury
I. fraud
J. other property damage
K. other torts
Answer:
|
songer_casetyp1_6-3
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "labor relations".
DOREY ELECTRIC COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent.
No. 74-2181.
United States Court of Appeals, Fourth Circuit.
Argued May 7, 1975.
Decided April 14, 1977.
E. Kenneth Day, Norfolk, Va., Ira J. Smotherman, Jr., Atlanta, Ga. (Carole T. Frantz, Day & Summs, Norfolk, Va., on brief), for petitioner.
Michael H. Stein, Atty., U. S. Dept, of Justice, Washington, D. C., (Irving Jaffe, Acting Asst. Atty. Gen., New York City, Stephen F. Eilperin, Atty., U. S. Dept, of Justice, William J. Kilberg, Sol. of Labor, Benjamin W. Mintz, Associate Sol. for Occupational Safety and Health, Michael H. Levin, Counsel for Appellate Litigation, and Judith A. Burghardt, Washington, D. C., on brief), for respondent.
Before WINTER, BUTZNER and WIDENER, Circuit Judges.
PER CURIAM:
We deferred ruling on this petition for review until the Supreme Court decided whether an employer, who is charged with a violation of the Occupational Safety and Health Act that may subject him to civil penalties, is constitutionally entitled to a jury trial. In Atlas Roofing Co., Inc. v. Occupational Safety & Health Review Commission, - U.S. -, 97 S.Ct. 1261, 51 L.Ed.2d 464 (1977), the Court held that the Seventh Amendment posed no bar to the disposition of such charges and the imposition of civil penalties by an administrative tribunal. This decision controls the principal issue presented by the petitioner. We turn, therefore, to other issues it raised.
The citations against the petitioner, Dorey Electric Company, arose as a result of a routine inspection by an OSHA compliance officer who noted that employees of Dorey were working near open, unguarded edges of the fourth floor of an uncompleted apartment building. In addition, he found the worksite perimeter cluttered with piles of foam and scrap lumber which exposed Dorey’s employees to possible injury. The evidence presented at the administrative hearing was based primarily on the compliance officer’s inspection and a stipulation that the edges of the floors in question were unguarded.
Dorey contends that the inspection of the worksite was without permission, violating its Fourth Amendment right against unreasonable searches. Therefore, according to Dorey, the testimony of the compliance officer must be excluded, and the complaint dismissed for lack of evidence.
The record discloses, however, that, at a worksite conference, Dorey gave permission for the inspection through its foreman. We conclude, therefore, that the testimony of the compliance officer was properly admitted.
Dorey also contends that the Commission failed to show that the absence of guardrails constitutes a “serious offense” under 29 U.S.C. § 666(j). That section provides:
[A] serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition, which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, or could not with the exercise of reasonable diligence, know of the presence of the violation.
Dorey claims that the probability of falling, being statistically available, must be shown before the violation may be deemed “serious.” This contention was expressly rejected in National Realty & Construction Co., Inc. v. Occupational Safety & Health Review Commission, 160 U.S.App.D.C. 133, 489 F.2d 1257, 1265 n. 33 (1973), in which the court stated that no such mathematical test need be conducted. “If evidence is presented that a practice could eventuate in serious physical harm upon other than a freakish or utterly implausible concurrence of circumstances, the Commission’s expert determination of likelihood should [control].” Here, we think it reasonable for the Commission to conclude that the absence of guardrails could result in serious injury; thus, the violation is of a serious nature under 29 U.S.C. § 666(j).
Dorey next argues that, even if this court were to accept the Commission’s findings that it violated the safety standards, enforcement should be denied because standard guardrails would have rendered performance of the work “difficult if not impossible.” In addition, Dorey asserts that the guardrails, when removed, would have damaged the completed work. The petitioner points out that the Commission itself has held that noncompliance with a safety standard is justified when necessary to perform required work. Secretary v. Dic-Underhill, 7 OSAHRC Rep. 134 (1974); Secretary v. Masonry, Inc., 5 OSAHRC Rep. 524 (1973); Secretary v. La Salla Contracting Co., Inc., 2 OSAHRC Rep. 976 (1973).
Despite these claims by Dorey that it was impossible for it to comply with the guardrail standard, the administrative law judge concluded that “[o]ther guards equivalent to standard railing such as pipe and wire rope could have been used to guard the edge of the opensided fourth floor which would not have obstructed, damaged, or otherwise prevented installation of said electrical switches and/or conduits by Dorey’s employees.” This finding is supported by the testimony at the hearing, and we conclude that, because Dorey failed to establish the impossibility of compliance, the penalties should be enforced.
Affirmed.
The Commission’s decision is reported as Secretary v. Dorey Electric Co., 11 OSAHRC Rep. 227 (1974).
Question: What is the specific issue in the case within the general category of "labor relations"?
A. union organizing
B. unfair labor practices
C. Fair Labor Standards Act issues
D. Occupational Safety and Health Act issues (including OSHA enforcement)
E. collective bargaining
F. conditions of employment
G. employment of aliens
H. which union has a right to represent workers
I. non civil rights grievances by worker against union (e.g., union did not adequately represent individual)
J. other labor relations
Answer:
|
songer_civproc2
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if less than two federal rules of civil procedure are cited. For ties, code the first rule cited.
William McBEE, Petitioner-Appellant, v. Archie WEAVER, Sheriff of Knox County, Tennessee, et al., Respondent-Appellee.
No. 16254.
United States Court of Appeals Sixth Circuit.
Feb. 1, 1966.
Ed R. Davies, Nashville, Tenn., and William E. Badgett, Knoxville, Tenn., for appellant.
Henry C. Foutch, Asst. Atty. Gen., Nashville, Tenn., for appellee. David W. McMackin, Special Counsel, Nashville, Tenn., on brief, George F. McCanless, Atty. Gen., and Reporter, Nashville, Tenn., of counsel.
Before EDWARDS, Circuit Judge, CECIL, Senior Circuit Judge, and BROWN, District Judge.
Honorable Bailey Brown, Judge, United States District Court for the Western District of Tennessee, sitting by designation.
PER CURIAM.
Petitioner was convicted of first degree murder in a trial in Knox County, Tennessee in 1954. In 1961, this court determined that such conviction was void because petitioner had been deprived of effective assistance of counsel in violation of the Fourteenth Amendment in that he was forced to trial on the same day that his lawyer was employed. Mc-Bee v. Bomar, 296 F.2d 235 (6th Cir. 1961).
Petitioner was retried in 1962 (represented by the employed lawyer who had represented him at the first trial) and was convicted of murder in the second degree. At this trial, the testimony of two witnesses for the State, who had-testified at the first trial but who had since died, was read in evidence over the objection of petitioner’s lawyer. This conviction was affirmed by the Supreme Court of Tennessee (McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963) ) and the Supreme Court of the United States denied certiorari. 377 U.S. 955, 84 S.Ct. 1633, 12 L.Ed.2d 499 (1964).
In 1964, petitioner filed another habeas corpus petition in the District Court for the Eastern District of Tennessee, alleging that his Fourteenth Amendment rights had been violated by the admission in evidence of the transcript of the testimony of the two witnesses who had testified at the first trial. The District Judge denied the petition without a hearing and petitioner has appealed.
Subsequent to the denial of the second petition for habeas corpus, the Supreme Court of the United States decided Pointer v. State of Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L.Ed.2d 923 (1965). In Pointer, the majority holding is that the Sixth Amendment right to confrontation includes the right to a “complete ■ and adequate opportunity to cross-examine” and that this right is made obligatory upon the States by the Fourteenth Amendment.
In its opinion in the prior habeas corpus proceeding (296 F.2d 235), this court refers to actual prejudice to petitioner in the inability of his counsel to effectively cross-examine the witness Stewart, who was one of the witnesses whose testimony was read at the second trial. We conclude that this language in the opinion is dictum. We so conclude because it was not necessary to the decision of this court that petitioner had been unconstitutionally denied effective assistance of counsel and that therefore petitioner’s conviction was void.
In the instant case, as stated, the District Judge held no evidentiary hearing and did not have the benefit of the decision in Pointer. Whether an accused has had “complete and adequate opportunity to cross-examine” is a question of fact in the first instance. Under Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), issues of fact in habeas corpus proceedings must first be heard by District Judges and their findings are binding upon appellate courts unless “clearly erroneous.” Rule 52(a), F.R.Civ.P. On remand, the district Judge can hold a hearing on this issue of fact with the standards of Pointer in mind.
Reversed and remanded for further consideration in the light of Pointer v. State of Texas, supra.
Question: What is the second most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer:
|
songer_counsel2
|
H
|
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
John F. KEALY and Robert M. Snell, Doing Business as Partners under the partnership name of Mid-Plains Development Company, Appellants, v. Roger L. HARTER, Appellee.
No. 81-2404.
United States Court of Appeals, Eighth Circuit.
Submitted June 15, 1982.
Decided July 6, 1982.
Whelan, Foote & Scherr, P. C., Gene C. Foote, II, Stephen A. Scherr, Dale A. Norris, Hastings, Neb., for appellants.
Before LAY, Chief Judge, FAIRCHILD, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.
Thomas E. Fairchild, Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit, sitting by designation.
PER CURIAM.
This case involves a determination of whether a provision in a contract for the sale of land provides for liquidated damages or creates an illegal penalty. The district court found that the provision created a penalty and refused to enforce it. John Kealy and Robert Snell appeal, arguing the district court misconstrued Nebraska law as well as one of the stipulated facts.
Kealy and Snell brought an action in federal district court to enforce two promissory notes executed by Roger Harter in the amount of $15,000 and $50,000. The parties stipulated to the following facts. Kealy and Snell are partners in Mid-Plains Development Co. On February 20, 1980, Mid-Plains contracted to sell the Van Dorn Plaza Shopping Center in Lincoln, Nebraska, for $4,200,000 to Harter, Inc., a corporation owned and controlled by Roger Harter. Section 2 of the contract provided that Har-ter, Inc. should execute a bank draft for $25,000 as “earnest money” to be applied to the purchase price on the closing date.
On April 28, 1980, the parties orally agreed to delay the closing date until May 19, 1980. Harter, Inc. agreed to pay $250 per day as an extension fee. A written agreement on May 19 postponed closing until June 19. Another agreement on May 19 provided that the bank draft would be delivered on or before June 19. On June 15, Roger Harter executed and tendered to Kealy and Snell the notes at issue in this case. On June 19, the parties, by written agreement, postponed the closing date to June 30. The June 19 agreement labels the notes “liquidated damages.”
The parties agreed to another delay on June 30. They agreed that closing would occur when Harter paid $500,000 and that he would have 24 hours to make such payment after he received written notice of Mid-Plains’ termination of the agreement. On July 1, Mid-Plains demanded payment and gave notice of termination. Harter did not tender payment.
Harter never made payment under the promissory notes. Harter did pay $250 per day from April 25 to July 21, 1980.
While these transactions were occurring, on June 3, 1980, Mid-Plains executed a real estate purchase agreement for the sale of the Van Dorn Plaza to Bernie and Bonnie Goler and Ben and Francine Wixen. On August 19, 1980, the Plaza was sold according to this contract.
On November 12, 1980, Kealy and Snell filed a complaint in federal district court demanding payment on two promissory notes executed by Harter in the amount of $50,000 and $15,000. Harter asserted several affirmative defenses. The parties stipulated the facts. On October 20, 1981, Chief Judge Warren K. Urbom held for Harter, finding the agreement to execute the notes created an unenforceable penalty rather than providing for liquidated damages. Kealy and Snell appeal, challenging the district court’s conclusion of law and construction of the facts.
The parties agree that a contractual provision providing for liquidated damages is enforceable while a provision creating a penalty for nonperformance is invalid. The determinative question in this case is whether the notes represent liquidated damages or a penalty. In distinguishing these two types of provisions, the district court cited the test stated in Growney v. C M H Real Estate Co., 195 Neb. 398, 399, 238 N.W.2d 240 (1976):
As a general rule: “The question of whether a stipulated sum is for a penalty or for liquidated damages is answered by the application of one or more aspects of the following rule: a stipulated sum is for liquidated damages only (1) where the damages which the parties might reasonably anticipate are difficult to ascertain because of their indefiniteness or uncertainty and (2) where the amount stipulated is either a reasonable estimate of the damages which would probably be caused by a breach or is reasonably proportionate to the damages which have actually been caused by the breach.” 22 Am. Jur.2d, Damages, s. 214, p. 299. See, also, Abel Constr. Co. v. School Dist. of Seward, 188 Neb. 166, 195 N.W.2d 744.
Id. at 242-43.
Cf. Restatement (Second) of Contracts § 356 (1981); S. Williston, A Treatise on the Law of Contracts §§ 783, 784, at 719-33 (W. Jaeger 3d ed. 1961); A. Corbin, Corbin on Contracts §§ 1058-1060, at 337-53 (1964). The district court found that the promissory notes represented a penalty under the Growney test because the execution of a contract on June 3 to sell the property to third parties rendered the damages from breach of the original contract ascertainable. This is a factual conclusion which we cannot overturn unless we find it clearly erroneous.
The contract to sell the property to the third parties was executed on June 3, two weeks before the June 19 agreement labeling notes executed on June 15 “liquidated damages.” Kealy and Snell argue the second contract did not render all the potential damages ascertainable. They assert that the district court did not find the damages were “absolutely ascertainable.” But damages are never certain and Nebraska courts merely inquire whether the parties can “reasonably anticipate” the damages.
Kealy and Snell also assert that there is a difference between a contract to sell and actual sale. They assert there may be delay between execution of a contract and closing and that a buyer may fail to perform. We need not determine whether damages created by these variables would be chargeable to the original buyer because we believe a degree of contingency, particularly in relation to collateral sources of damage, does not necessarily render damages indefinite.
The district court also concluded that the notes represented a penalty under the second prong of the Growney test. The court found that, at the time the notes were executed, Kealy and Snell knew they would suffer only minimal damage. Thus the amount of the notes was not a reasonable estimate of the potential damages. The court also stated that Kealy and Snell offered no proof that they had, in fact, suffered any damage.
Kealy and Snell also challenge the district court’s construction of paragraph 14 of the stipulated facts. Paragraph 14 reads in part, “On June 3, 1980, the Plaintiff executed a Real Estate Purchase Agreement for the sale of said property to Bernie Goler and Bonnie Goler, husband and wife, and Ben Wixen and Francine Wixen, husband and wife.” Kealy and Snell allege that the executed contract was dated June 3 because it was drafted on that date, but, they assert, the contract was not executed until after the liquidated damage clause was inserted in the original contract.
The stipulation of facts clearly states that the contract was executed on June 3. By contrast, the stipulation clearly differentiates between offer and execution of the contract in describing the agreement between Harter and Kealy and Snell. Voluntary stipulations of fact are conclusive and can be controverted on appeal only under exceptional circumstances. Fenix v. Finch, 436 F.2d 831, 837 (8th Cir. 1971); Hoffman v. Celebrezze, 405 F.2d 833, 836 (8th Cir. 1969). The stipulation of facts in this case was only four pages long. Kealy and Snell do not explain why they agreed to paragraph 14 if it is inaccurate. We thus find no extraordinary circumstances or excuse of any kind. We find the district court’s reliance on the stipulation was appropriate.
We affirm the judgment of the district court.
. Although plaintiffs cite a number of authorities to illustrate the general trend away from disfavoring provision for liquidated damages, they cite no Nebraska case reversing the rule articulated in Sunderland Bros. Co. v. Chicago, B. & Q. R., 104 Neb. 319, 179 N.W. 546, 546 (1920), that if construction is doubtful, a provision will be considered a penalty.
. Courts and commentators have construed the reasonable estimation criteria to require that the parties make a good faith attempt to predict damages. Sun Printing & Publishing Ass’n v. Moore, 183 U.S. 642, 662, 22 S.Ct. 240, 248, 46 L.Ed. 366 (1902); S. Williston, A Treatise on the Law of Contracts § 778, at 693-95 (W. Jaeger 3d ed. 1961); A. Corbin, Corbin on Contracts § 1059, at 345 (1964).
. We note that Harter paid $250 per day from April 25, 1980 to July 21, 1980 as an extension fee.
. We are not told whether the contract executed with the Golers and Wixens on June 3 was contingent on breach by Harter, Inc. If it was contingent, there was no inconsistency in the two contracts being outstanding at the same time.
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_othadmis
|
E
|
What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile, (or did ruling on appropriateness of evidentary hearing benefit the defendant)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
Carmen Maria SANTIAGO et al., Plaintiffs-Appellants, v. CORPORACION DE RENOVACION URBANA Y VIVIENDA DE PUERTO RICO et al., Defendants-Appellees.
No. 71-1079.
United States Court of Appeals, First Circuit.
Heard Nov. 15, 1971.
Decided Jan. 5, 1972.
A. G. Hermida, Rio Piedras, P. R., for appellants.
Berta Font De Estades, for appellees.
Before COFFIN, Circuit Judge, VAN OOSTERHOUT, Senior Circuit Judge, and STEPHENSON, Circuit Judge.
Of the Eighth Circuit, sitting by designation.
VAN OOSTERHOUT, Senior Circuit Judge.
This is an appeal by the multiple plaintiffs in an action brought on June 15, 1970, on their own behalf and for persons similarly situated, from the dismissal of their complaint against Corporacion de Renovacion Urbana Y Vivienda de Puerto Rico, et al., hereinafter CRUV (Puerto Rico’s urban renewal and housing agency), its executive director, and the members of its board of directors.
Plaintiffs seek declaratory and injunc-tive relief from the following asserted practices of CRUV:
“(a) of not permitting certain persons desiring and entitled to public housing to file applications for such public housing, without giving any grounds for such action; (b) of accepting applications for public housing made by persons desiring and entitled to same, and then either not taking any action on such applications or denying such applications, without giving any grounds for their action or lack of action; (c) of refusing to act on applications made by persons already residing in public housing projects who desire and are entitled to a transfer from one apartment (or project) to another, without any grounds for their refusal to act.”
It is asserted that such practices engaged in under the color of state law violate plaintiffs’ federal constitutional rights to due process and equal protection of the law, and that such practices fail to conform to the regulations and instructions promulgated by HUD which are binding upon defendants.
This action is brought under 42 U.S. C.A. § 1983; jurisdiction is based on 28 U.S.C.A. § 1343(3) and (4), and 28 U. S.C.A. §§ 2201, 2202.
Plaintiffs seek the convocation of a three-judge court, pursuant to 28 U.S.C. A. §§ 2281 and 2284, upon the basis that the federal constitutional violations asserted are bottomed upon unconstitutional state statutes and statewide administrative regulations authorized by state law.
No interlocutory or temporary relief was sought in the complaint. Subsequently on July 2, 1970, one of the individual plaintiffs, Santiago, on behalf of herself only, filed a motion for temporary restraining order. The court entered an order, dated July 1, 1970, requiring defendants to show cause why a three-judge court should not be convened and why a preliminary injunction should not be granted as requested. Hearing thereon was set for July 9. Defendants on July 9 filed a motion to dismiss and/or in opposition to a three-judge court and preliminary injunction. Said motion asserts that the plaintiffs’ petition does not raise a substantial constitutional question and hence no three-judge court should be convened; that no preliminary injunction is appropriate; that all actions of CRUV have been taken in good faith; that there is not enough housing to meet demands; that any mistakes made have been unintentional; and that proper service has not been made.
Hearing was held on the show-cause order on July 9. Arguments were made and briefs were submitted. Plaintiffs’ counsel requested an opportunity to present evidence in support of the Santiago request for a temporary restraining order. Evidence was presented on this limited issue by both parties. Such evidence related principally if not exclusively to the factual situation with respect to Santiago and did not develop the facts relating to the other plaintiffs. The issues submitted were taken under advisement.
An order of the court dated December 29, 1970, filed December 30, makes findings of fact and the conclusion of law-that none of the violations alleged by plaintiffs were committed and that the problem was one of nonavailability of dwellings, and that no constitutional question was involved. The case was dismissed.
Plaintiffs on January 8, 1971, filed a „ motion to amend or vacate the judgment, pursuant to Rule 59(e), Fed.R. Civ.P., urging the action could be dismissed only by a three-judge court; and more importantly, that the dismissal could not be based upon testimony offered and received solely for the purpose of supporting the Santiago application for temporary restraining order, absent notice that the court was treating the hearing as one on the merits. The motion was overruled on January 15. This timely appeal followed.
The court did not expressly pass on the Santiago application for temporary restraining order. The order dismissing the action carried with it an implied dismissal of such request. Plaintiffs expressly state in their brief that they are not contesting the denial of the restraining order. Hence, such issue is not before us.
The issues before us are:
I. Did the court correctly determine that no three-judge court was required and that a single judge has jurisdiction to dismiss the action.
II. Did the court err in dismissing the action.
I.
The court properly determined that no three-judge court is required. Twenty-eight U.S.C.A. § 2281 provides that a single judge cannot issue an interlocutory or permanent injunction “restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, * * * upon the ground of the unconstitutionality of such statute * * and that such action can only be taken by a three-judge court constituted under 28 U.S.C.A. § 2284.
It is proper for a single judge to whom the request for a three-judge court is made to determine whether a substantial constitutional attack is made upon a state statute or a state-wide regulation such as to require the convening of a three-judge court. Ordinarily such determination will be made upon the basis of the pleadings. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152.
In our present case, plaintiffs, in their brief or elsewhere, have not pointed out any specific provision of a state statute or regulation which they claim to be unconstitutional. Rather their claim appears to be that the state statutes and regulations do not go far enough in spelling out the procedure required. We adopt the responses made to a similar attack in a similar situation by the Second Circuit in Johnson v. Harder, 2 Cir., 438 F.2d 7, 13, where it is said:
“The appellant’s complaint is therefore not that the state regulation is unconstitutional either on its face or even as applied to the appellant, but rather that appellee is administering an otherwise constitutional regulation in an unconstitutional manner. In such circumstances it has been held that a single judge has the power to dispose of the claim. [Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800 (1941); Ex parte Bransford, 310 U.S. 354, 361, 60 S.Ct. 947, 84 L.Ed. 1249 (1940); eases cited 1 Barron & Holtzoff (Wright ed.) § 52 n. 98.1.] Neither, of course, are three judges required as to appellant’s claim that the state régulation conflicts with federal provisions which, by virtue of the Supremacy Clause, are controlling. [Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965).]
See Like v. Carter, 8 Cir., 448 F.2d 798, 802.
Included in the appendix is a circular dated June 24, 1970, RHM 7465.1, promulgated by HUD which details the procedure to be followed by public housing authorities in processing applications. The provisions of the HUD circular on the basis of the Supremacy Clause of the United States Constitution must be followed by local housing authorities under federally assisted housing projects and such provisions apply to proceedings commenced prior to the date of the issuance of the circular. Thorpe v. Housing Authority of City of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474. The housing project here involved is a federally assisted project. Thus any essential details with respect to processing applications which may be lacking in the state regulations are supplied under the federal preemption doctrine by the instructions prescribed by HUD, which circular and regulations were issued pursuant to federal law.
Plaintiffs have failed to demonstrate that the trial court erred in determining the disposition of this case does not require the convening of a three-judge court.
II.
The court erred in dismissing the complaint. The complaint goes beyond merely challenging the constitutionality of the state statutes and regulations. Violation of civil rights under 42 U.S.C.A. § 1983 are asserted, based upon colorable claims of violating due process and equal protection in the handling of plaintiffs’ housing applications. Jurisdiction, based on 28 U.S.C.A. §§ 1343(3) and (4), is established. See Johnson v. Harder, supra; Like v. Carter, supra.
Plaintiffs urge the court erred in dismissing the complaint on the basis of findings made upon evidence which was introduced solely in support of the Santiago application for temporary restraining order when no notice or warning was given by the court that the court was trying the case on its merits.
We upheld a similar contention in T.M.T. Trailer Ferry, Inc. v. Union de Tronquistas de Puerto Rico, Local 901, 1 Cir., 453 F.2d 1171. We there recognized that the trial court has a right under Federal Rules of Civil Procedure, Rule 65(a), to advance the hearing on the merits and consolidate the hearing on the application for a preliminary injunction with the trial on the merits and held, citing supporting authorities, that “the exercise of that power is tempered by the requirement that the court inform the parties ‘before or after the commencement of the hearing’ that such action is contemplated.”
We have searched the record carefully and find no notice or warning was given by the court at any time before its decision that it was consolidating the trial on the merits with the hearing on the restraining order. The order fixing the hearing, heretofore referred to, did not so state or fairly imply. The evidence introduced was permitted in response to a request for an opportunity to offer evidence in support of the motion of Santiago for a restraining order. No contention is made that there was any express or implied agreement on the part of counsel to submit the case on the merits.
The dismissal might well be proper on the basis of the motion to dismiss if the complaint on its face fails to state a cause of action. Such is not the situation. The court did not elect under Rule 12(c) to treat the motion as one for summary judgment and did not afford the parties an opportunity to present all matters material to a summary judgment as required by the rule. In any event, it is apparent that disputed material factual issues are presented which would preclude summary judgment treatment. This is reflected by the court’s basing its dismissal on findings of fact based on the evidence offered on the preliminary injunction issue and its reliance upon such findings to support a dismissal.
Plaintiffs are entitled to a fair evi-dentiary hearing upon the merits of their claim. We express no view as to the merits of this litigation.
The judgment of dismissal is reversed. This case is remanded for further proceedings consistent with the views expressed in this opinion.
Question: Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile (or did ruling on appropriateness of evidentary hearing benefit the defendant)?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer:
|
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